Abbott v. People , 22 N.Y. Sup. Ct. 437 ( 1878 )

Potter, J.:

This is a writ of error to reverse a conviction of the plaintiff in error of the crime of obtaining goods by false pretences. The trial and conviction were had in the court of General Sessions in July, 1878, and plaintiff was sentenced to imprisonment in the State prison for three years. The false pretences alleged in the indictment are that the plaintiff in error stated, on or about the first of September, 1875, to Frederick D. Blake, on the occasion of buying some goods of Blake; that he had begun business with $30,000 capital, and that capital had not been impaired; and that he did not at that time owe more than thirty to thirty-five thousand dollars. It cannot need the citation of authority to show that such representations were material, and of a character and tendency to induce a credit upon the purchase of goods.

The evidence given upon the trial was amply sufficient to warrant the jury in finding that the representations were believed, and principally if not wholly relied upon by Blake, who upon such belief sold and delivered the goods, and that the representations were false to the knowledge of plaintiff in error, and that he made them with an intent to and did obtain the goods by means of them, “and with the intent to cheat and defraud Blake. The sworn schedules of plaintiff filed in proceedings in bankruptcy, commenced in November following this purchase in September, were introduced in evidence to show the condition of his capital, his assets and debts and liabilities on the first or second of September, the date of making the pretences and obtaining the goods. These schedules were objected to, but no authority is cited or sufficient reason given against the introduction of this evidence, and I can conceive of none.” They are the sworn declarations made and signed by the plaintiff' in the course of judicial proceedings, the object of which was to ascertain each particular claim or liability, its date, amount and consideration, as well as to ascertain each particular asset, its nature and value. Moreover, the plaintiff was introduced as a witness in his own behalf, with the opportunity of correcting and explaining the statements in the schedules. It would seem that declarations made under such circumstances must be unexceptional evidence against the declarant. Prom those schedules it would appear that his liabilities were, on the first of September, when the pretences were made ,some $96,000, and which had been increased to December first, or when the schedules were made up, to $150,000, and the assets amounted to about $30,000.

A somewhat novel demonstration or proceeding took place in the course of the trial. At the close of the evidence upon the plea of not guilty, the plaintiff in error offered a special plea to the jurisdiction of the court, upon the ground that the United States had exclusive jurisdiction over the offence. It is doubtful whether that plea is in the case, so as to be considered. The court was, however, requested to charge upon that subject. I do not think even if the general principle is as claimed by the counsel for the plaintiff in error, viz. : That whore the United States declares a certain act criminal, its jurisdiction over that crime is exclusive, that this case is at all subject to that rule. The United States only declares a false pretence “of carrying on business and dealing in the ordinary course of trade” is a criminal offence. That was not the false pretence set forth in the indictment in this case. The State statute is general, while the United States statute relates to but a single and specific false pretence. It is not necessary to discuss what would be the effect, if the sole pretence, charged in an indictment under the State law, was the precise pretence specified in the United States statute. I do not think the principle decided in People v. Miller (2 Parker’s Criminal R., 197, and cited by the plaintiff in error) at all applicable to this case.' The nature of the charge in this case is entirely unlike that in the case referred to. Upon the whole, I think the plaintiff in error was justly convicted, and no errors committed upon the trial.

The conviction should be affirmed.

Ingalls, P. J., concurred. Present — Ingalls, P. J., and Pottek, J.

Conviction affirmed.