
    People v. Gottschalk.
    
      (Supreme Court, General Term, First Department.
    
    November 18, 1892.)
    1. Larceny—Indictment—Evidence—Variance.
    An indictment charged that defendant, “with force and arms, feloniously did steal, take and carry away the money and property ” of W. The evidence showed that, in answer to an advertisement by one W., seeking employment, and offering security, defendant, by false representations, and with intent to steal $200, deposited, according to advertisement, with him by W. as a pledge, the title to remain in pledgor, contracted with W. for his services, and agreed to return such pledge on the termination of the contract. The contract was subsequently terminated, after which defendant agreed with W. to return the money so pledged in two payments, but failed to do so. Held, that there was no variance, as under the indictment and facts the offense of larceny at common law was charged and proven.
    
      % Same.
    The subsequent negotiations on the termination of the contract were no defense.
    Appeal from court of general sessions, New York county.
    On a charge of larceny against Bruno W. Gottschalk the jury returned a verdict of larceny in the second degree. Defendant appeals. Affirmed.
    Argued before Van Brunt, P. J., and O’Brien and Lawrence, JJ.
    
      Henry Wehle, (Edward Grosse, of counsel,) for appellant. De Lancey Nicoll and Henry B. B. Stapler, for respondent.
   O’Brien, J.

This appeal is taken upon a pure question of law, as to whether the crime charged in the indictment was the crime proven upon the trial. The indictment charged that the defendant, “with force and arms, feloniously did steal, take, and carry away the money and property of Joseph Weiss. ” It is conceded that the following facts, which are concisely stated in the bill of exceptions, were established by the people upon the trial: That one Joseph Weiss published on or about November 11, 1891, an advertisement in the city of New York, in which the said Joseph Weiss applied for a position as clerk or collector, and offered to give security for the faithful performance of his duty. That thereupon, in the city of New York, on or about the said 11th of November, 1891, the defendant called on said Joseph Weiss, and represented that he was engaged in a legitimate business, in which he needed the services of a clerk or collector, who could deposit security for his honesty. That thereupon the said Joseph Weiss paid over to said defendant, and deposited with said defendant, the sum of $200, not intending to part, with the title of said $200, but only to pledge the said money as security, retaining the title thereto, and received from the said defendant a certain receipt and contract of employment, by the terms of which the said defendant, undertook to return the said sum of $200 on the termination of the contract of employment, and that said contract of employment would be determined on a noticeof.30 days by said Joseph Weiss to defendant. That'said Joseph Weiss entered the said service of defendant, but found out that his business was not a legitimate one, and on or about the 9th day of December, 1891,. gave defendant notice, in accordance with the requirements of the contract,, that he would terminate the contract. That defendant promised and agreed, to repay and return the sum of $200-as follows: $100 on February. 1, 1892, and $100 on March 1,1892; but that on or about January 11, 1892, defendant left for Chicago, and did not return any part of said $200, but that said defendant designed to steal the same and to appropriate the same at the time-said Weiss made said deposit of $200, and entered the employment of said defendant, and at the time he made his said statements and representations to-said Joseph Weiss. That said statements and representations were made-by the defendant in order to induce the said Weiss to make the said deposit with the defendant. The defendant’s attorney objected to the introduction of this evidence at the proper time, on the ground that the facts were not stated in the indictment. The objection was overruled. Defendant excepted. The-defendant moved to strike out the testimony on the ground that the indictment charged that the larceny was committed by trespass, while the proof showed that the larceny, if any, was committed by obtaining the property through false and fraudulent representations, which fact was not pleaded in the indictment. The court held that the facts stated tended to prove a larceny by trick and device, and the indictment was sufficient to admit proof of these facts. The defendant excepted to this ruling. Other witnesses-were called by the prosecution to confirm the testimony of Joseph Weiss, but the testimony did not vary the version of the facts as stated by Joseph' Weiss, and at the close of the testimony for the people the defendant’s coun-' sel moved that the court direct the jury to acquit the defendant on the grounds (1) That the crime alleged was not proven; (2) that the facts alleged in' the indictment were not proven; (3) that the facts proven varied materially from the facts alleged in the indictment. The court denied the defendant’s motion, and defendant excepted to it. The court then charged the jury, and the jury found a verdict of guilty of larceny in the second degree.

Between the indictment and proof it is insisted by the appellant that there was a fatal variance, in that the act alleged is a forcible taking of complainant’s money, which it is claimed was not proven, while what was proved was the fraudulently inducing of Weiss to deliver the money to defendant, defendant’s duty to repay it on termination of the contract, and his neglect to comply with this duty, which it is claimed were not alleged. It will thus be seen that the appellant seeks to brings this case within the principle of People v. Dumar, 106 N. Y. 502, 13 N. E. Rep. 325. We think, however, that an examination of what was decided in that case will show the 'distinction which the appellant seemingly overlooks. That case is authority for the proposition that, under the provisions of the Code of Criminal Procedure, prescribing the form of the indictment, it must charge both the crime and the act constituting it, and that the omission of either is fatal. That case, therefore, held, where an indictment for grand larceny charged the act constituting the crime thus: that defendant “unlawfully and feloniously did steal, take, and carry away,” the property described, that it could not be.sustained by proof that the defendant obtained possession of the property from the owner upon a sale on credit, induced by false and fraudulent representations. The distinction between these two crimes as they existed at common law is clearly pointed out, and, as therein said: “In order to constitute larceny, there must have been a taking of personal property against the will of the owner. The other offense [false pretenses] could not be confounded with it. In either case, the property may have been obtained by artifice or fraud; but if in one the owner intended to part with his property absolutely, and to convey it to the defendant, but in the other intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not. It was therefore uniformly held that if a person, through the fraudulent representation of another, delivered to him a chattel, intending to pass the property in it, the latter could not be indicted for larceny, but only for obtaining the chattel under false pretenses.” It is therein further shown that “the Penal Code has swept away the theory by which the courts had felt constrained to distinguish them in principle. By it larceny is so treated as to include, not only that offense as defined at common law and by the Revised Statutes, but also embezzlement, obtaining property by false pretenses, and felonious breach of trust.” Therefore, under the Penal Code, “there are at least four distinct and separate acts or ways by which a person may commit or be guilty of larceny. The first embraces.larceny as described at common law and under the Revised Statutes; the second embraces the offense formerly known as ‘obtaining property by false representations.’” This case is therefore un-doubted authority for the position that one who has been indicted for larceny for doing the first act cannot be convicted of larceny for doing the second. Ho question, however, can here arise as to this being a good indictment for larceny at common law; and, if the facts given in evidence were sufficient to-sustain the crime of larceny at common law, then there is no variance between the indictment and the proof. At common law, when the owner of property, induced by false and fraudulent representations, intends to part with the title thereto, the crime of procuring property by false representations is committed, and not the crime of larceny. Where, however, the intention not to part with the title to the property appeared, even though possession thereof may have been obtained by trick, device, or fraudulent representations, it was larceny. This distinction, we think, is very well pointed out in the case of Smith v. People, 53 N. Y. 111, wherein it was held that if, by trick or artifice, the owner of the property is induced to part with the custody or naked possession to one who receives the property anima furandi, the-owner still meaning to retain the right of property, the taking will be larcency. In this case it is conceded that Weiss did not intend to part with the title to the $200, but only to pledge the said money as security, retaining the title thereto; that the appellant afterwards appropriated the $200; and that his design at the time the complainant made the said deposit was to steal the same. The intention of Weiss to retain the title while parting with the possession of his money, and the intention of the prisoner to steal the same at the time of obtaining possession, are not affected by the subsequent negotiations to obtain on the part of Weiss a return of his property. It is absurd for the appellant to claim, after having, without the consent of Weiss, stolen his $200, that this act, which constituted the crime of larceny, was in any manner changed or affected by the subsequent negotiations between the parties relative to Weiss’ obtaining a return of the same, and that, because the-appellant agreed to make such return at a period subsequent to the indictment, the crime could not be committed until this period had expired by his then refusing to return the money. The distinction which we have sought to point out between the crime of larceny and false pretenses we think is clearly supported by the cases of People v. Morse, 99 N. Y. 662, 2 N. E. Rep. 45, and Soltau v. Gerdau, 119 N. Y. 380, 23 N. E. Rep. 864. In the former the indictment was for common-law larceny, and there, as here, the appellant contended that the crime established was the crime of obtaining money by false pretenses, and the test applied as to whether it was one or the other was the intention to part or not to part with the title of the property at the time possession thereof was taken from the true owner. We think, therefore, that where it is conceded, as in this case, that the complainant did not intend to part with the title to the $200, and that the defendant received the same with the intention of stealing it, and did steal it, the crime committed was common-law larceny, and not larceny by false pretenses. And where, as here, the proof tended to support and was directed to establish the crime of larceny at common law and as defined in the Penal Code, and as the crime charged in the indictment was the crime of larceny as it existed at common law and under the Code, there was no material variance between the facts proven and those alleged. The vice in appellant’s argument is due to his assuming throughout that the proof tended only to support the crime of statutory larceny by false pretenses, whereas, as we have shown, the facts did establish larceny at common law. We are of opinion, therefore, that the conviction should be affirmed. All concur.  