
    SUPREME COURT—APP. DIVISION-FIRST DEPARTMENT,
    July 12, 1906.
    THE PEOPLE v. JAMES H. LANGLEY.
    (114 App. Div. 427.)
    (1). Larceny—Obtaining Money Through False Representations—Evidence.
    Although the indictment stated that the lands falsely represented to be owned by a corporation were in Virginia, the court may allow an amendment to confirm the proof that they were in West Virginia—and a refusal to acquit is not error when the real identity of the property is clearly established.
    (2). Same.
    The testimony of the real owner of said lands and an abstract of his title are admissible to show that neither the defendant nor •the corporation was the owner as represented.
    (S). Trial—Charge—Good Character.
    When a defendant has given no evidence as to his character, it is not error to refuse to charge that he is presumed to have a good character, as the question of character is not one for the consideration of the jury where no evidence of general character has been given.
    Appeal by the defendant, James H. Langley, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 13th day of February, 1906, convicting the defendant of the crime of grand larceny in the second degree, and also from an order made at the close of the trial denying the defendant’s motion for a new trial and in arrest of judgment.
    
      Lorlys Elton Rogers, for the appellant.
    
      E. Crosby Kindleberger, for the respondent.
   McLaughlin, J.:

The defendant was convicted of the crime of grand larceny in the second degree in obtaining $400 in cash and a note for $100 from the complaining witness Ranke, by means of false pretenses, and sentenced to serve a term of three years in State’s prison.

At the trial the testimony on the part of the People (the defendant offered no evidence) tended to establish the following fact: That as the result of an advertisement of defendant’s appearing in a newspaper published in the city of ¡New York the defendant and Ranke entered into a communication, met on several occasions at the office in which defendant had desk room, and once at defendant’s apartment; that at these conferences the defendant represented to Ranke, by direct statements to him and by the exhibition of circulars, balance sheets and other documents shown and mailed to him, that he was in control of the Morgan-Stokes Company, a corporation earning about $5,000 a year, which owned some ten square miles of very valuable land in West Virginia, and that the company was about to be reorganized for the purpose of developing the property ; that the meetings finally culminated in the signing of an agreement by Ranke and defendant, whereby the former agreed to purchase fifty shares of the corporation’s stock at $10 a share, with the option of purchasing nine hundred and fifty shares more, on which he was to receive the dividends as fast as he paid for the stock; that Ranke was to become vice-president and secretary with a drawing account of $25 per week, and defendant was to be the president of the corporation and entitled to draw $50 a week; that, relying upon the representations of defendant, Ranke paid him $400 in cash and gave him a note for $100 in payment of the stock; that the name of the corporation and defendant’s own name were used interchangeably by him in his representations as to the ownership of this land; that the land in question was not owned by defendant nor the Morgan-Stoltes Company, nor did they have any interest in or control over it; that at the time of the negotiations, and for many years immediately prior thereto, it was owned by the witness Wyman, in whose name the title stood.

At the close of the testimony the court suggested that the indictment be amended by inserting the "word “West” before “ Virginia ” to conform to the proof, there being no question but what the land concerning which the representations were made was in West' Virginia, though the indictment described it as being in Virginia. The defendant objected to the amendment, which was overruled and an exception taken.

The exception is unavailing. There is no doubt as to the right of the court to amend the indictment by correcting the description of the property. (Code Crim. Proc. § 293.) Bor did the court err in refusing to direct an acquittal, on motion of defendant’s counsel, even though made before the amendment, inasmuch as the" identity of the property had been clearly •established. Defendant’s counsel also complains of the injustice of basing a conviction upon the testimony of the complaining witness. The credibility of this witness was for the jury, and that they believed him is evidenced by their verdict, which is amply sustained when his testimony is read in connection with the other evidence in the case.

Complaint is also made as to the evidence tending to establish the identity of the land concerning which the false representations were made. The testimony of the witness Wyman was admissible for the purpose of showing that he and not the defendant nor the Morgan-Stokes Company, was the owner of it. The abstract of title which was produced in evidence was admissible as bearing on this subject. During the course of the charge the court said.: “ Bow, the defendant has not taken the stand and you must not pay any attention whatever to that. We are not here to save fools from the consequences of their folly. The duty as to that rests with the Almighty. We are here simply to punish violations of the Penal Code.” ¡No exception was taken, but it is urged for the first time on appeal that the jury must have understood that the court, when he said, “ We are not here to save fools from the consequences of their folly,” referred to the conduct of the defendant in not testifying in his own behalf. This cannot be, because in the sentence immediately preceding he had said that the jury must not pay any attention whatever to the fact that the defendant had not testified. That he was referring to Ranke in parting with his money and not to the defendant is clearly apparent when the whole charge is read and must have been so understood by the jury.

Finally, it is urged that the court erred in refusing to charge, as the request of defendant’s counsel, that the defendant was presumed to have a good character. ¡No evidence had been given by defendant as to his character, and for that reason none could be offered by the People. Where no evidence of general character has been given, the subject of character is not one for the consideration of the jury. (People v. Bodine, 1 Den. 281; Ackley v. People, 9 Barb. 609; Underhill Crim. Ev. §76; People v. Pekarz, 185 N. Y. 470; 20 N. Y. Crim. Rep. 159.)

I have been unable to find any errors in the record which call for a reversal of the judgment. The defendant had a fair trial, the evidence sustains the verdict, and, therefore, the judgment and order appealed from should be affirmed.

O’Brien, P. J., Laugi-ilin, Clarke and Houghton, JJ., concurred.

Judgment and order affirmed. Order filed.  