
    The People, App’lts, v. Edward J. Rice, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    1. Larceny—Indictment.
    An indictment charging the defendant with the crime of grand larceny in substance as follows: That having contracted with the board of supervisors to make repairs and furnish materials for the plumbing, steam heating and ventilating of the court house, and having made such repairs and furnished materials, he presented a bill therefor, and did falsely and fraudulently represent and include in said bill that he had furnished certain quantities of materials which are specified, which statements he knew to be untrue, which bill was paid on orders drawn by the board; and that with intent to deprive and defraud the county of its money and property, etc., he did take from the possession of said county, the true owner thereof, and did obtain possession of said money “by color or aid of the false and fraudulent representations, pretenses, etc., aforesaid, and so did steal said money,” is sufficient. The allegation that such moneys were obtained “by color or aid of” the false representations, is equivalent to the allegation usually employed; that it was done " by means of” such representations, and necessarily implies that the owner of the property relied on those representations.
    2. Same—False pretenses.
    Where there is no delivery of goods to the buyer, but the °use of materials in a building, which, when put in place, must be, in large part, hidden from sight, the question of the reasonable effect of false statements in a bill presented therefor is a question for the jury.
    3. Same.
    Neither the false token nor the false writing of the statute is required to make a case of false pretences.
    Appeal by the People from a judgment of the Monroe oyer and terminer allowing a demurrer to the indictment.
    
      Geo. A. Benton, dist. att’y, for app’lts; John Van Voorhis, for resp’t.
   Dwight, P. J.

The defendant was indicted for the crime of grand larceny in the first degree, which is, “charged in (three) separate counts to have been committed in a different manner or by different means.” Code of Grim. Pro., § 279. The defendant demurred to the indictment generally, specifying as grounds of his demurrer: 1st. That the facts stated in the indictment do not constitute a crime, or the crime of larceny in any degree; 2d, 3d and 4th. That the facts stated in the first, second and third counts, respectively, do not constitute the crime of larceny in any degree, or any crime; and, in respect to the second and third counts, respectively, that the facts and circumstances which constitute the crime are not stated as required by law; 5th. That counts for more than one crime are improperly united in the indictment, and more than one crime is charged therein, within the meaning of §§ 278 and 279 of the Code of Criminal Procedure ; 6th. -That the indictment does not conform substantially to the requirements of §§ 275 and 276 of the Code of Criminal Procedure, in that it does not specify the name of the court to which the indictment is presented, and in that it does not contain a plain and concise statement of the act or acts constituting the crime.

The sixth objection or ground of demurrer is not tenable: (1) the indictment, as set out in the record, contains the title of the action, specifying the name of the court to which the indictment was presented, § 275, sub. 1; (2) the indictment, upon its face, purports to state the act (or acts) constituting the crime, and the manner of such statement is commendably plain and concise. Id., sub. 2.

The fifth objection or ground of demurrer is -not tenable, because the indictment charges, in its several counts, only one crime, viz.: grand larceny in the first degree, § 278, although that crime is “ charged in separate counts to have been committed in a different manner or by different means,” which is expressly permitted by the statute, § 279.

The remaining four objections or grounds of demurrer are all embraced in the first, because that objection embraced all the counts. The demurrer is to the whole indictment, and the indictment is good if either count is good. That being the case, we are at a loss to understand: how this demurrer could have been allowed in the face of the third count of the indictment. That count is in these words:

“Third count. And the grand jury of the county of Monroe, by this indictment, further accuses the said Edward J. Eice of the crime of grand larceny in the first degree, committed as follows :
“■The said Edward J. Eice, on the 9th day of May, in the year of our Lord, 1889, at the city of Eochester, in this county, seven hundred and twenty-nine dollars and thirty-one cents ($729.31), good and lawful money of the United States and of this state, in bank bills, bank notes, gold and silver certificates, United States treasury notes, gold, silver, nickel and copper coins, the denominations, dates, etc., etc., unknown, and a more specific description thereof cannot, therefore, be given, but of the value of seven hundred and twenty-nine dollars and thirty-one cents($729.31), of the goods, chattels and personal property of the county of Monroe, said county of Monroe then and there being a body corporate duly created, organized and existing under and by virtue of the laws of the state of New York, unlawfully and feloniously did take, steal and carry away from the premises of the county of Monroe, with the intent then and there to deprive and defraud the said county of Monroe of its said goods, chattels and personal property, and of the use and benefit thereof, and to appropriate the same to the use of himself, said Edward J. -Rice, contrary to the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.”

We are not able to see that this count lacks anything of the requisites of a good indictment for the crime charged, committed by the means of taking, stealing and carrying away. If not, then the indictment was good, and the demurrer to the indictment, generally, should have been disallowed.

But we are aware, from the course of the argument on this appeal, that the People will not rely, on the trial, upon proving the crime charged to have been committed in the manner and by the means set forth in the third .count, but rather upon proving it to have been committed in the manner, and by the means of false ánd fraudulent pretenses alleged and set forth in the first count in the indictment. In order, therefore, to anticipate future objections and avoid unnecessary delays in the prosecution of the action, it is proper that we should extend our examination to the allegations of the first count and inquire whether that count is obnoxious to the objections taken to it by the demurrer, and especially to the single objection upon which, as appears by the opinion of the learned j udge at the oyer and terminer, the demurrer was allowed.

The first count accuses the defendant of the crime of grand larceny in the first degree committed as follows: it then proceeds to charge, that the defendant on the 9th day of May, 1889, at Rochester, in said county, did steal, take and carry away the sum of $729.31, lawful money of etc., of the money, personal property, etc., of the county of Monroe, in manner following, that is to say: <> it then proceeds to allege the corporate character of the county of Monroe; that it exercised corporate powers by its board of supervisors ; that such board by its duly authorized trustees of court house and jail contracted with the defendant to make certain repairs and furnish materials therefor in the plumbing, steam heating and ventilating apparatus of the court house in Rochester; that the defendant made such repairs and furnished materials therefor and presented to said trustees a bill for such materials which was fully paid by said coqnty upon orders drawn by said trustees; that the defendant “did falsely, fraudulently and feloniously represent, pretend and say, and include in his bill presented to said trustees,” that he had furnished certain quanties of various kinds of materials at prices charged, all of which quantities, kinds and quices are specified in detail in the indictment; “ which said representations said Edward J. Rice, the statements so made being :among others in his said bill, then and there well knew to be false and untrue and made, and included in said bill, with intent to cheat and defraud the said county of Monroe of its money and property and to appropriate the same to his own use, etc.”

The indictment then proceeds to negative in detail the said several representations in respect to the amount of each of the kinds of material before specified, furnished by the defendant, and to state the. less amount of each which was in truth and in fact, and as the defendant well knew, furnished by him in the making of such repairs. (The excess in price of the quantities charged, over the quantities actually furnished as alleged, at the same rates of prices, is the sum of $729.31.) And the count concludes with an allegation in these words: “And so this grand jury accuse said Edward J. Rice, that with intent to deprive and defraud the county of Monroe of its money and property and of the use and benefit thereof, and to appropriate the same to 'his own use and to the use of some other person or persons to the grand jury unknown, he did then and there as aforesaid take from the possession of the said county of Monroe, the true owner thereof, and did obtain possession of said money, to wit: said sum of $729.31 by color or aid of the false and fraudulent representations, pretenses, false tokens and writings aforesaid; and so did steal said sum of $729.31, contrary to the form of the statute,” etc.

The demurrer to this indictment was allowed on the ground that it “ is insufficient because it nowhere contains any allegation that the money was paid by the committee in reliance upon the false statement of the defendant, nor any allegation equivalent thereto.” And the two cases in this state cited in support of the ruling are People v. Dumar, 106 N. Y., 502; 11 N. Y. State Rep., 19; and Clark v. The People, 2 Lans., 329. Neither of the cases is authority for the proposition that the allegation of this indictment, viz.: that the money was obtained “ by color or aid of ” the false and fraudulent representation, following as it does the language of the statute, is not equivalent to the allegation, in that respect, usually employed, viz.: that the end was accomplished “ by means of ” the fraudulent representation. In the case of Dumar the question was not as to the sufficiency of the indictment, but a question of variance between pleadings and proof; where, as Judge Danforth very tersely said, “ what was alleged was not proved, and what was proved was not alleged.” The indictment made no allegation whatever of false pretenses, and false pretense was the burden of the evidence. In the case of Clark v. People, supra, the language was “ by which said false pretenses he then did unlawfully obtain,” etc., and that was held to be “ a substantial averment that the prisoner had obtained the property from the prosecutor by means of the false pretenses made and of the latter’s belief therein, and that the indictment was not defective in that particular.”

The quotation is from the head note, which is fully borne out by the opinion of Miller, J., concurred in by Ingalls and Peck-ham, Sr., JJ., and the entire argument fully sustains the position of the district attorney in this case. Certainly to allege that the property was obtained by the false pretence, etc., is no stronger than to allege that it was obtained by color or aid of the false pretence, etc. The opinion in that case repeats and enforces in various forms the proposition that the fact that the property was obtained by false pretences necessarily implies that the owner of the property relied upon those pretences. Indeed the opinion at oyer and terminer in this case substantially affirms the same proposition in the words, “ It is quite plain that unless the owner delivered the money in part reliance, at least, upon the false representations, it cannot be said that possession of it was obtained by aid of them.” All the authorities and precedents are substantially to the same effect on this question. The form contained in Archbold’s Prac. and Pleadings, Pomeroy’s edition, page 1376, gives a form identical in this respect with that used in the case of Clark, supra, viz.: “by which said false pretence he, the said A. B., then unlawfully did. obtain, etc.”, and thé' cases on this point cited in the American notes are all substantially to the same purpose.

The other objection, and that mainly urged by counsel for the defendant, is that the false pretences were not such as could or ought to have deceived or misled an ordinarily prudent man; and he cites many cases, chiefly English, to the effect that a false statement of the amount or quantity of goods or commodities sold and delivered is not a representation which will support an indictment for false pretences. Such is undoubtedly the rule in cases like those referred to. This case seems to be of a different character. Here was no delivery of goods to a buyer, but the use and employment, by the defendant in the repairs of the piping, the plumbing, and the steam fitting of a public building, of large quantities of soil pipe, lead pipe, sheet lead, solder and oakum, which when put in place must have been in large part hidden from the eye and altogether beyond the estimate of any but an expert in the same trade or calling. In such a case the rule must apply with special force that the question of the reasonable effect of the representation is a question for the jury.

The argument of counsel for the defendant that there was in this case no “false token” or “false writing” within the meaning of the statute seems to us sound and well supported by authority. But neither the false token nor the false writing of the statute is required in order to make a case of false pretences. The statute reads “a person who with intent to deprive or defraud the true owner of his property, etc., either, (1). Takes from the possession of the true owner "x" * *; or obtains from such possession by color or aid of fraudulent or false representation or pretence, or of any false token or writing * * * any money, etc. * * * steals such property and is guilty of larceny.” Penal Code, '§ 528.

The indictment in this case charges the crime in the language of the statute and fully and plainly recounts the acts alleged to constitute a crime. It seems to us not to be obnoxious to any of the objections suggested by the demurrer or argued by counsel.

The judgment appealed from should be reversed and the case remitted to the oyer and terminer of Monroe county to proceed therein.

Macomber and Corlett, JJ., concur.  