People v. Lovejoy ( 1899 )

Merwin, J.:

It is claimed on the part of the defendant that the indictment is. defective; that it does not contain a plain and concise statement of the acts constituting the crime, and that the facts set forth in the indictment do not state a crime.

The indictment must contain “ a plain and concise statement of the act constituting the crime, without unnecessary repetition.” (Code Crim. Proc. § 275.) An indictment is not insufficient by reason of an imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant, upon the merits. (Code Crim. Proc. § 285.)

The crime charged against the defendant is defined by section 528 of the Penal Code. Under that section the subject of larceny is “ any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession.”

It is argued that the check or bill of exchange that the defendant is charged with stealing or appropriating to his own use is not sufficiently described. A copy of it is, however, set out and it purports to be a completed instrument. Its ownership and value are-alleged. It is described as a check or bill of exchange directing the payment of money and as wholly unsatisfied. If the allegations are true, it was certainly an article of value. It was personal property within the meaning of that term as used in the Penal Code. (§§ 528, 545, 718, subd. 15.) Whether it was in fact a valid check duly executed, and whether its ownership came from indorsement by C. W. Nold, or in some other way, were matters of proof.

The general rule is that an indictment for a statutory offense, as the statute defines it, is sufficient. (Phelps v. People, 72 N. Y. 334.) It has been held that a check is sufficiently described in an indictment as a paper purporting to be a check for a certain sum of money, alleging its value and to whom it belongs. (State v. Pierson, 59 Iowa, 271. See, also, 12 Ency. PI. & Pr. 994, and cases cited.)

The indictment is, I think, sufficient.

In November, 1894, the defendant was employed as a clerk or bookkeeper at the New York State Reformatory at Elmira by the superintendent in charge thereof, and from August, 1895, to November, 1897, when he left, the moneys received at the institution passed through his hands. His duties required him to keep the books and. cash account, and he had charge of the hank deposits or checks. On the 31st of March, 1896, there was a man by the name of 0. W. Mold in the employ of the institution in its manufacturing department upon a salary of fifty dollars a month. In March, Mold bought goods of the institution to the amount of thirty-nine dollars and forty-seven cents, and the institution had rendered to him a bill for that amount. On the thirty-first of March, when the salary of Mold became due, the institution, in part payment thereof, gave to Mold the check in question and he thereupon indorsed and delivered it to the defendant as cashier of the institution in payment of the bill of goods. The institution in the conduct of its business kept two separate cash accounts, one of maintenance funds and the other of manufacturing funds, drawing checks on each account according to the nature of the transaction. If they paid a debt that they owed for manufacturing material, they paid it out of the manufacturing fund, and if they owed a debt for maintenance supplies it was paid out of the maintenance fund. The accounts were kept in the Second Mational Bank in the name of the treasurer of the reformatory. It was the duty of the defendant, when he received this check, to have deposited it in the bank to the credit of the proper account. Instead of doing that, he indorsed it and, as the evidence tended to show, appropriated it to his own use. It was presented at the bank and paid to other parties. The check represented so much money belonging to the institution, and its negotiation and misappropriation deprived the institution of that amount.

In the course of the trial the prosecution called as a witness one Bush, an accountant, who testified that he made an examination of the books kept by the defendant, covering the entire period that the defendant was there in charge of the cash books. He was then asked to state the result of that examination. The objection was made on the part of the defendant that it was not the best way of proving it; that the books were the best evidence. The objection was overruled and the defendant excepted. The witness answered that he found a deficiency of about $1,300. We think that this exception was well taken. The books were in possession of the institution and the defendant was entitled to have them in evidence. (Brayton v. Sherman, 119 N. Y. 623 ; more fully reported in 28 N. Y. St. Repr. 854.) It was competent for the prosecution to show, on the question of intent, that the act in question formed part of a series of similar occurrences within reasonable limits as to date. (People v. Shulman, 80 N. Y. 373, note; Commonwealth v. Tuckerman, 10 Gray, 173.) The best evidence, however, should be given. We cannot say that the error in this respect was not prejudicial to the defendant, and, therefore, there should be a new trial.

, All concurred.

Judgment reversed and a new trial ordered.