
    Supreme Court—Special Term—New York.
    September, 1901.
    THE PEOPLE v. J. OVERTON PAINE.
    (35 Misc. 763.)
    1, Larceny—Stock broker—Penal Code, section 528.
    A complaint charged that T. had a deposit with defendant, $167, to he used as a margin in speculating in stocks for T/s account; that T. received notice that defendant had sold certain stock at certain figures; that no transactions were to he made for T. except upon direction, and he had given no orders; that the transactions in fact did not take place, and that the statement by defendant as to sale of stock was made to show a loss of the margin and to appropriate the money to his own use. Held, that the complaint failed to set forth any criminal offense.
    2. Same.
    The fact that defendant, after he had the money in his possession, made misstatements as to alleged purchases or sales does not constitute a crime. Complainant parted with nothing on the faith thereof, d'd not alter his position in consequence, and was not in any mannér deceived as to the pecuniary injury.
    Hearing upon writ of habeas corpus.
    
      E. A. Philbin, District Attorney, and John F. Cowan, for People.
    Black, Olcott, Gruber & Bon.ynge, for defendant.
   McAdam, J.

The complaint charges that on May 6, 1901, Maurice A. Thomer, the complainant, had on deposit with J. Overton Paine, the defendant, the sum of $167 to be used as a margin in speculating in stocks for the complainant’s account; that on said date the complainant received notice from the defendant that he had sold ten shares of Northern Pacific and twenty shares of Brooklyn Rapid Transit stock at certain figures; that no sales or purchases of stock were to he made for complainant except upon his direction; that the complainant gave no orders for the sale of said stock, and that the same was not, in fact, sold; and that the statement! made by the defendant to- the effect that he had sold said stock was to show a loss of the margin and tio appropriate to his own use the money deposited by the complainant as aforesaid. Clearly no crime is alleged. The defendant did not obtain possession of the complainant’s money by any trick, device, fraud or artifice, for it was voluntarily parted with by the. complainant of his own free will and accord, in which respect the case differs essentially from that of the Commonwealth v. Cooper (130 Mass. 285), relied on by the district attorney.' In that case the complainant, a.t the request of the defendant, who was a broker, gave him $200 as margin to use on the purchase of 100 shares of the stock of a certain railroad, the defendant! agreeing at the time to' make the purchase and receiving the money for the specific purpose. The broker afterwards represented that he had made the purchase as agreed, hut, when pressed for the stock by the customer with an offer of the balance of the purchase money, admitted that he had misappropriated the money and applied it to his own use. The court instructed the jury that the defendant, having obtained the money to be applied to a particular purchase and then fraudulently and deceitfully applied it to his own use, was guilty of embezzlement under the laws of that State. The conviction was affirmed, the court holding that “even though the property was intrusted to the' broker for an illegal purpose it was no defense to an indictment, for embezzlement.” Citing Commonwealth v. Smith, 129 Mass. 104. In New York the former crimes of embezzlement and false pretenses are now embraced within the term larceny as defined by section 528 of the Penal Code. In the present instance, the $167 placed in the hands of the defendant by the complainant made him the debtor of the latter to that amount and gave the depositor the right to recover by civil action a return of the deposit or to. call upon the defendant, for an accounting. The fact that the defendant, after he had the money in his possession, made misstatements as to alleged purchases or sales does not constitute a crime, for the complainant parted with nothing on the faith thereof, did not alter his position in consequence, and was not in any manner deceived to his pecuniary injury. It is not charged, nor can it be inferred from any allegation of the complaint, that the $167 deposited with the defendant paid for or was to pay for ten shares of Horthern Pacific and twenty shares of Brooklyn. Rapid Transit stock, so as to malee the complainant the owner thereof or the defendant a bailee with respect thereto, or that any possible wrong regarding any such stock was done to. the complainant. Ho demand and refusal to pay or deliver over are alleged. Breach of contract is actionable—not indictable.—but even a breach, the foundation of every civil action, is not pleaded. Every essential to a criminal offense should be set forth with particularity (Barb. Crim. L. [2d ed.] 519, 520), and not left to inference, which favors innocence and never lends its aid to establish guilt unless the facts charged unerringly point that way. Tested by the settled rules of criminal procedure, the complaint here is so inartistically drawn, that it may well be termed a nondescript. The complaint fails to set forth any charge of which a criminal court has jurisdiction, and the attempt to make a criminal offense of the transaction looks like an effort to use the criminal courts as a means of enforcing an obligation the remedies re>speoting which belong exclusively to- the civil courts established for the purpose. For these reasons the magistrate had no authority to commit the defendant to a,waiti the action o-f the grand jury, but should have discharged him at once. As the defendant is unlawfully deprived of his liberty, the writ must he sustained and the defendant discharged from further restraint.

Writ sustained and defendant discharged.  