
    SUPREME COURT—APP. DIVISION—FIRST DEP.,
    June 3, 1910.
    THE PEOPLE v. GENNARO GHIGGERI.
    (138 App. Div. 807.)
    [(!•). Larceny—Penal Law, § 1290, sub. 1—Obtaining Money on Check—Proof Necessary.
    In order to convict a defendant of larceny under subdivision 1 of section 1290 of the Penal Law in obtaining money on a check by false and fraudulent pretenses as respects its validity, it must be shown that the defendant obtained the money from the person whom he induced to cash the check with an intent to deprive him thereof or to appropriate the same to his own use, or to that of another, and that he obtained it “by color or aid of false or fraudulent representation or pretense,” or by the aid of the check, and that the check was a “ false token .or writing.”
    :(2.) Same—Penal Code Sec. 1293—Fraudulent Draft—Evidence Necessary—Wilful Intent must be Shown.
    In order to bring the defendant within the provisions of section 1293 of the Penal Law, making it theft to obtain money by a fraudulent draft, it is necessary to show that he “ willfully with intent to defraud by color or aid ” of the check obtained money from the person whom he induced to cash it knowing “ that the drawer or maker ” of the check was “ not entitled to draw on the drawee for the sum specified therein.”
    (3.) Same—Knowledge of Drawer’s lack of Funds—Not Shown by Presentation of Check.
    The mere presentment of a check drawn by another does not constitute a representation that the drawer has funds to his credit in the bank on which it is drawn.
    (4.) Same—Evidence of Forged Indorsement.
    Evidence that the person who cashed the check received it from the bank with a writing attached stating that it was returned because the indorsement was a forgery is not competent to show forgery.
    
      (5.) Same.
    Moreover, where the only indorsement on the check was that of the payee and the defendant did not indorse, proof that the payee’s name was forged is not evidence of a guilty knowledge on the part of the defendant.
    Appeal by the defendant, Gennaro Ghiggeri, from a judgment of conviction rendered against him in the Court of Special Sessions of the First Division of the city of New York on the 10th day of November, 1909, on an information charging him with petit larceny in having procured a check to be cashed on false pretenses.
    
      Morris Jablow [Louis B. Williams with him on the brief], for the appellant.
    
      Robert S. Johnstone, for the respondent.
   Laughlin, J.:

The judgment recites that the defendant was convicted of a violation of the provisions of section 1298 of the Penal Law. That section merely provides that every larceny other than grand larceny in the first and second degrees is petit larceny. The acts with which the defendant is charged, set forth in the three counts of the information, might constitute a violation of the provisions of section 1290, subdivision 1, of the Penal Law, which correspond with the provisions of section 528, subdivision 1, of the Penal Code, or might be a violation of the provisions of section 1293 of the Penal Law, which correspond with the provisions of section 529 of the Penal Code. The substance of the charge is that the defendant obtained from one Bruno the sum of eighteen dollars and seventy-three cents by false and fraudulent pretenses with respect to the validity of a check for that amount, which purported to have drawn by one Benedict Warner on the American Exchange National Bank to the order of Sperra Bros., and which purported to have been indorsed by the payees.

In order to constitute a violation of the provisions of section 1290, subdivision 1, of the Penal Law, it was necessary to show that the defendant obtained the money from Bruno with intent to deprive him thereof, or to appropriate the same to his own use or to that of another, and that he obtained it “ by color or aid of fraudulent or false representation or pretense,” or by the aid of the check, and that the check was a “ false token or writing; ” and in order- to constitute a violation of section 1293 of the Penal Law it was incumbent upon the People to show that the defendant “willfully, with intent to defraud, by color or aid” of the check, obtained the money from Bruno knowing “ that the drawer or maker ” of the check was “ not entitled to draw on the drawee for the sum specified therein.” It is manifest, therefore, that it was necessary for the People to show either a false representation and criminal intent or knowledge on the part of the defendant that the check was invalid, or that the drawer or maker had not funds on deposit with the drawee sufficient to meet the same. This court held in People v. Whiteman (72 App. Div. 90) 16 N. Y. Crim. 461, that the mere representation of the check of another by the defendant in payment of his hotel bill did not constitute a representation that the drawer of the check had funds to his credit with the bank on which it was drawn, and did not constitute a violation of the provisions of section 528 or section 529 of the Penal Code, which have been respectively re-enacted without material change in section 1290 and section 1293 of the Penal Law. In the case at bar the conviction has evidently been had upon the theory that the indorsement of Sperra Bros, on the check was a forgery, but even this was not shown by the evidence. On the back of the check as introduced in evidence appears the following: “ Sperra Bros. George N. Bruno Pay 19th Ward Bank or order 12th Ward Bank. Received payment through New York Clearing House Endorsement guaranteed 19th Ward Bank.” It thus appears that the check was not indorsed by the defendant. Bruno testified that he put the check in his bank and that it came back to him with a white piece of paper attached showing that it was returned by the American Exchange Rational Bank for the reason assigned, which was Endorsement a forgery.” This was not competent proof that any indorsement was a forgery, nor does it indicate which indorsement is claimed to have been a forgery. Bruno did not testify that he indorsed it and for aught that appears the claim with respect to the forgery may have had reference to the indorsement of his name on the check. But if it could be assumed that it had reference to the first indorsement and that the same was. a forgery, still there is no evidence of guilty knowledge on the part of the defendant. It appears by the testimony of the cashier of the American Exchange Rational Bank that the drawer of the cheek had funds to his credit in the bank and the check was paid when presented and charged to his account, but that the drawer subsequently returned the check to the bank and the bank collected the amount paid thereon through the bank from which it received it.

The defendant at the time in question-was in the employ of Bruno. Bruno testified that the defendant came to the office one morning and said that he had a check, and his brother-in-law gave it to him; I saw it was indorsed by his brother-in-law Sperra, and I cashed it for him.” This is the only evidence that the defendant made any representation with respect to the check. His only representation, therefore, was that he received it from his brother-in-law. The only evidence with respect to who his brother-in-law was is the testimony of Bruno that he saw that the check was indorsed by the defendant’s brother-in-law. If so, that proves the truth of the representation which defendant made. It may, however, be said that the witness meant not that the indorsement was genuiné, but that it contained such an indorsement. If it may be assumed from this testimony that one of the Sperra Bros, was the defendant’s brother-in-law, that fact alone is insufficient to show that he knew that the indorsement was not made by one authorized to indorse the check for Sperra Bros. It may be that by virtue of the copartnership authority, or an arrangement with the bank, all members of the firm were not authorized to indorse checks, and that the indorsement was regarded as a forgery on this theory. The facts must be more satisfactorily shown in a case involving individual liberty and reputation. It was not disproved that he received the check from his brother-in-law as he stated, and this is an entire absence of competent evidence that the indorsement on the check when the defendant delivered it to Bruno was a forgery, or that he knew that it was a forgery.

It follows, therefore, that the judgment of conviction should be reversed and a new trial granted. .

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Judgment reversed and new trial ordered. Settle order on notice.

NOTE ON LARCENY BY CHECK.

GENERALLY.

The giving of a check by a person upon a bank at which he has no deposit or credit, unless there is a wilful intent to defraud, held not to be larceny. People v. Cuykendall, 3 N. Y. Crim. 312.

Where defendant, when check was negotiated by him, had good reason to believe, and did honestly believe, that he was entitled to draw the amount thereof, and that it would be paid in the usual course of business a conviction will not be sustained. State v. Johnson, 77 Minn. 267.

BY STATUTE.

Fact that a check is postdated held not to take it out of the Statute. Barton v. People, 35 Ill. App. 573.

One who presents his own check to a bank in which he has an account held not to be within the Massachusetts statute, since the act of presentation implies only a request to pay. Commonwealth v. Drew, 19 Pick. 179.

One who draws a check on a bank where he has no funds to meet it is guilty of a fraud on the person who parts with money on the faith thereof. Seiling v. Clark, 18 Misc. 464.

UNDER COMMON LAW.

The passing of a check held not to be a representation that the person passing it has at the time money.to the amount of the face of such check in the drawee bank, since he may have authority from the bank to overdraw. Regina v. Hazleton, L. R. 2 C. C. 134.

Since no mere words amount to a token, held that the drawing of a check on a bank in which the drawer had no funds at the time the check was drawn, such act being a mere written ■ promise or statement, was not a cheat or fraud at common law. Commonwealth vs. Warren, 6 Mass. 72. Rex v. Lara, 2 East P. C. 819.

JURISDICTION.

A Court of Special Sessions has jurisdiction of the crime of obtain-gin money under false pretences by means of a check. People v. Huggins, 110 App. Div. 613, 20 N. Y. Crim. 257.

INDICTMENT.

Indictment for obtaining goods under false pretenses, charging that defendant with intent feloniously to cheat and defraud, represented that a bank check delivered by him in payment of goods purchased purporting to have been drawn by another person, was a good and genuine check, that he had money on deposit, and it would be paid on presentation, held sufficient. Smith v. People, 47 N. Y. 303.

EVIDENCE.

The payment of a debt by a postdated check, defendant stating at the time that he was a little short, had bought some property, and did not want it presented until the day of its date, and had some paper out of which he expected to get some money, held not larceny. People v. Cuykendall, 3 N. Y. Crim. 312.

Where defendant purchased books of the value of $500, giving to the seller his check on a bank in Pennslvania, dated on the day of the sale, June 15th, and payable July 6th, stating that he was rather short at the time and feared that there was not enough money in the bank to pay the check, when in fact he kept no account in the bank named, held that he was properly convited. Foote v. People, 17 Hun. 218.

Not necessary to establish false representations that the proof should be direct, but such evidence must be given and such facts established as tend legitimately and necessarily to show the existence of the fraudulent intent. People v. Picknéy, 67 Hun. 428.

Where defendant and a companion called upon complainant and bargained for goods, and defendant's companion, whom he represented to be the owner of two stores, went out to get money, and the latter returned with a check purporting to be signed by a third party, dated the next day, and when attention was called to such fact, defendant’s companion remarked that it was too late to go to the bank, it then being after banking hours, so that the check was received and the goods delivered, and it appearing that no such person as the alleged drawer of the check had an account in the bank, and that there was no such person, held that the circumstances tended to show a device to defraud, and that the fact that the check was postdated did not, under the circumstances, make it a mere undertaking that the money would be in the bank at maturity. Lesser v. People, 73 N. Y. 78.

Proof that a guest at a hotel, under a fictitious name, tendered the check of a third person to its cashier and received the difference between its face value and the amount of his bill, and that the drawer had no account with the drawee of the check, held not to be sufficient to sustain a conviction. People v. Whiteman, 72 App. Div. 90, 16 N. Y. Crim. 461.

Where defendant obtained a check upon the promise to deliver immediately his own check for the amount, but failed to do so for several days, when he made payment of a balance due by the delivery of his own check with a statement that same was good and that he had plenty of money in the bank, such statements being false, held that he was properly convicted of obtaining money under false pretenses. People v. Huggins, 110 App. Div. 613, 20 N. Y. Crim. 257.

Proof that defendant made a check on his local bank payable to the order of the City Treasurer, that the latter endorsed the check, and accompanied by the defendant, presented it to his paying teller in the city office, obtaining thereon city money which was in his lawful possession as such treasurer, gave the money to the defendant; that the check was never paid, that the defendant knew that he was not entitled by his deposit to draw a check for such an amount and intended to defraud the city thereby, held sufficient, semble, to support an indictment for inducing the treasurer to part with the money on the false representation implied by the giving of the check that same was good. People v. Dilcher, 38 Misc. 90.

TRIAL.

Charge. A request to charge that the pretense must appear upon the indictment to be such as could not be guarded against by an exercise of common sagacity and prudence, held properly denied. Smith v. People, 47 N. Y. 303.

When on trial of an indictment for giving a worthless check in payment for goods, it is shown that after the dishonor of the check the vendor’s agent went to Maine with the defendant and negotiated a transfer of real estate in that state to secure the sum due, thus treating the transaction as a simple indebtedness, and when such agent is not produced by the complainant on the trial to rebut the claim of the defendant that presentation of said check was to be delayed, and when the trial judge refuses to charge that the jury may consider the conduct of the parties towards each other on the question of criminal intent, a new trial should be granted in furtherance of justice. People v. Lipp. 111 App. Div. 504.

APPEAL.

On appeal from a conviction under an indictment for grand larceny in the second degree, in obtaining money on a worthless check through false representations, it appeared that testimony was given on the trial showing that when the defendant was charged with drawing a check, purporting to be signed by a mythical person, he made no denial, held that the jury had the right to find that such was the actual fact. People v. Pickney, 67 Hun 428.  