
    Supreme Court—Appellate Division, First Department.
    July, 1903.
    THE PEOPLE v. CHAUNCEY W. WALKER
    (85 App. Div. 556.)
    1. Grand Larceny-—Obtaining Money by Trick or Device.
    The crime of larceny is established by proof on the part of the prosecution, showing that the defendant obtained possession of the property by some trick, fraudulent device or artifice, with the intention of appropriating it to his own use or that of another.
    2. Same—Evidence—Written Instrument may be Varied by Parol Testimony.
    The rule that parol evidence is not admissible to vary or contradict the terms of a written instrument has no application in á criminal case.
    3. Same.
    Upon the trial of an indictment for grand larceny the prosecution gave testimony tending to show that the complainant met the defendant through a newspaper advertisement, and that the defendant informed the complainant that he represented an Illinois corporation which desired to employ a general agent for a particular locality in which it had not been represented; that if the complainant would accept the position he would receive a certain salary and commission and would be required to furnish a bond for $2,500 to secure the faithful performance of his duties; that the complainant offered to furnish the bond, but that the defendant refused to accept it, saying that the corporation had adopted the system of having its agents purchase stock of the corporation and of depositing the purchase money in a trust fund, to be returned when the agents severed their connection with the corporation; that, as a result of several interviews with the defendant, the complainant agreed to accept the position and made a deposit of a check for $100, which, at the defendant’s direction, was sent direct to the corporation at Chicago; that it was subsequently agreed between the defendant and the complainant that the defendant should purchase $1,000 instead of $2,500 worth of stock; that the complainant thereupon gave a check for $900, payable to the order of the corporation, and that the contract of employment was then signed and the certificates of stock delivered; that the defendant immediately had the check certified and forwarded the same to the corporation, which collected the same. Complainant subsequently ascertained that there were several others who held similar appointments in that locality. He then endeavored in vain to secure from the corporation the money he had paid, and the corporation subsequently went into the hands of a receiver.
    4. Same.
    Evidence was also given to the effect that when the defendant was arrested, he admitted that the complainant had been robbed and stated that he would return the money to him. Held, that the evidence was sufficient to authorize a finding that the defendant had fraudulently obtained the money represented by the $900 check with the intention of appropriating the money to his own use or that of the corporation which he represented, and that he was, therefore, guilty of larceny as defined by section 528 of the Penal Code.
    Ingraham, J., dissenting.
    Appeal by the defendant, Chauncey W. Walker, from a judgment of the Court of General Sessions- of the Peace in and for the city and county of ISTeW York, entered on the 10th day of December, 1902, convicting him of grand larceny in the first degree, and also- from an order denying his1 motion for a new trial and in arrest of judgment.
    
      Charles E. Le Barbier, for the appellant.
    Robert C. Taylor, for the respondent.
   McLaughlin, J.:

The defendant was. convicted of the crime of grand larceny in the first degree and sentenced to- State prison fo-r an indeterminate term of not less- than two nor more than three years-, and he has appealed from the judgment and orders denying motions in arrest of judgment and for a new trial.

It is urged that the judgment and orders- should be reversed, principally upon the ground that the verdict of the- jury was not warranted by the evidence-. After a careful examination of the record I am satisfied that at the close- of the trial the evidence was not only sufficient to require the submission of the defendant’s guilt to- the jury, but that it sustained their verdict. The indictment contained three counts, each of which charged in substance, though in a different way, that the defendant, on the 29th day of June, 1901, stole from one Cavanaugh, the complaining witness, $900. The testimony offered by the People at the trial to- sustain the charge set out in the indictment was substantially as follows: That sometime prior to- the 29th of June, 1901, Cavanaugh, through an advertisement which appeared in the New York Herald, met the defendant, who then informed him that he represented the Policy Holders’Rational Hnion of Chicago-, an Illinois, corporation, whose business was to investigate insurance policies to- determine whether they were correct in form, and issued by responsible companies-; that such corporation would like to- engage a general agent for the States of Re-w York, Rew Jersey and Connecticut; that it was “ virgin territory,” no- business- having been done by. it therein; that if Cavanaugh would accept the position he should have the sole agency of such States and receive a salary of $150 per month, after deducting certain expenses-, and in addition thereto 20 per cent, commission on all the business which he did; that he would be required to- furnish a bond for $2,500 to- guarantee the faithful performance of his duties; that defendant, on being informed that such bond would be furnished, said that was not what they wanted; that the corporation had adopted the system “ laid down by Hr. Lipton and Hr. Andrew Carnegie and some of the large concerns throughout the world,” which was that an agent should purchase stock of the corporation and the money paid on such purchases would be put in a trust fund, and when they severed their connections the money would be returned; that is, the corporation would redeem the stock; that Cavanaugh said he would take the matter under consideration, and defendant then informed him that he had better connect himself with the corporation at once or he would lose the chance, inasmuch as there were several others who wanted the position; that Cavanaugh subsequently visited Chicago and had a talk with the president of the corporation and also with the defendant’s brother, who was the secretary and treasurer; that thereafter he received a communication from the defendant and other interviews took place, as the result of which Cavanaugh agreed to' accept the position and made a deposit of a check for $100, which, at the defendant’s suggestion, was sent direct to1 the corporation at Chicago; that a few days later the defendant wrote Cavanaugh asking for an interview and saying that he had the “ contract, certificates and supplies,” in response to which Cavanaugh, on the 29th, met the defendant and told him that it was impossible to raise $2,500; that the best he could do was to' take $1,000 worth, and defendant replied: “Well, . . . our company won’t object to that,” but “ we would like the money in cash,” and on being informed by Cavanaugh that he could not give the cash, but would give a check, answered: “ Well, . . . let me have the cheek;” that a check for $900 was thereupon given, payable to the order of the corporation, the contract was then signed and the certificates of stock delivered; that the defendant immediately had this check certified and forwarded it to the corporation, by whom the same was collected, and it is the money obtained by means of this cheek that the defendant is charged with stealing.

After this check was delivered, the defendant, in connection with Cavanaugh, engaged an office, into which was put furniture of small value and then the defendant disappeared, promising to return in a few days to instruct Cavanaugh how to' conduct the business. He did not return, nor, so far as appears1, was he again in the State until he was by artifice induced to' come, when he was placed under arrest.

Scarcely had Cavanaugh opened his office and held himself out as having the exclusive agency of the States of Hew York, Hew Jersey and Connecticut, when he ascertained that there were several others who held similar appointments in those States, whereupon he severed his connection with the corporation and endeavored to have the money he paid returned, but all of his efforts in this direction were futile, and the corporation itself shortly thereafter ceased to do business and a receiver was appointed.

Testimony was also offered to the effect that when the defendant was arrested he admitted that the complaining witness had been robbed, and said to the officer who had him in charge: “ I am prepared ... in thirty minutes to give him back his money; that is all he wants.”

If the testimony of the People’s witnesses was true, I do not see how it can be seriously questioned but what the- defendant was guilty of the crime for which he was indicted. Cavanaugh had been deprived of his property by the fraudulent scheme or device of the defendant, and the jury had the right to find that this had been done by the defendant for the purpose of appropriating such property to his own use or that of the corporation which he represented. Larceny, as defined by section 528 of the Penal Code, embraces every act which was larceny at common law, besides other offenses which were formerly indictable as false pretenses or embezzlement. The offense of larceny at common law is established by proof on the part of the proseenti on, showing that the defendant obtained possession of the property by some trick, fraudulent device or artifice with the intention of appropriating it to- his own use or that of another. (People v. Miller, 169 N. Y. 339.) It is true the defendant denied, and he was corroborated in some respects by other witnesses, that he made any false representations, to Cavanaugh; that the money represented by the checks would be held in trust; that on Cavanaugh’s severing his connection with the corporation the money would be returned to him, or that he was to have the exclusive agency of the States named. He also denied that he ever received any of the money or that he made the statement attributed to him at the time of his arrest. But the jury were not bound to believe him or his witnesses, and that they did not is evidenced by their verdict. There being sufficient evidence to sustain it, and we being satisfied of the defendant’s guilt, it ought not to be disturbed. (People v. Miller, supra; People v. Hackett, 82 App. Div. 86.)

It is also urged that the court erred in admitting testimony as to what took place between the defendant and Cavanaugh prior to the time the contract between Cavanaugh and the corporation was signed, and in this connection our attention is called to the rule that parol evidence is not admissible to vary or contradict the terms of a written instrument; but this rule has no application in a criminal case. (People v. Barringer, 16 Hun, 330.) In the case just cited the recorder excluded testimony upon the ground that the same Was inadmissible under this rule, but on appeal the judgment was reversed, Van Brunt, P. J., saying: It is clear that in the case of a criminal prosecution the rule applied by the learned recorder cannot prevail. The question is as to1 the felonious intent of this defendant ; and she cannot he precluded from showing that such felonious intent did not exist simply by the production of a paper wherein she has written or signed something inconsistent with her claim of the non-existence of the felonious intent. She is not estopped by any such writing. The jury have a right to consider the writing in determining the question as to the credibility of the witnesses and the weight to' be given to' the testimony, but there is no ground in a case of that description for the application of the rule that parol evidence cannot be offered to rebut the claim of felonious intent.”

Nor do I find any error in the charge1. A fair construction of it as a whole does not justify the criticism made upon it by the appellant’s attorney. When the court said that the testimony offered by the People goes to show that certain representations were made to the complaining witness that were untrue, it was-equivalent to- saying that such testimony tended to show and must have been so understood by the jury. No exception was. taken to it, and I am satisfied that the defendant’s rights were not prejudiced by it. He had a fair trial, the jury found him guilty, and the evidence sustains their finding.

The judgment of conviction and the orders denying the motions for a new trial and in arrest of judgment must be affirmed.

Van Brunt, P. J., O’Brien and Hatch, JJ., concurred;, Ingrai-iam:, J., dissented.

Ingraham, J. (dissenting):

As I view the evidence in this case, as a whole, I do not think it was sufficient to justify a conviction. The defendant, as the agent of a corporation, induced Cavanaugh, the complainant, to purchase stock in the corporation and to pay therefor the sum of $1,000, the corporation to appoint the defendant its agent. The complainant purchased that stock, paid the $1,000 to the corporation, and the conviction of the defendant is based upon that transaction. It is proven,, without contradiction, that the defendant failed to profit in any way by the transaction; that a portion of the money paid to the defendant was paid directly to the corporation, and that the balance was paid by a check, which was sent to the corporation and collected by it. A contract creating the defendant an agent of the company was executed, and the complainant received the stock that he had purchased. I do not think that this is suffident to sustain a finding that the defendant, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person ... by color or aid of fraudulent or false representation or pretense,” took from the possession of the complainant any money or personal property. (Penal Code, sec. 528.)

Judgment and orders affirmed.  