People v. . Peckens ( 1897 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The appellant's first claim is that the offense charged in the indictment was not properly tried, or properly triable, in the county of Ontario, because no criminal pretense or act of the defendant, which formed a part of the crime, was charged to have been made or committed within that county. The indictment charged that the defendant; two other persons named, and others whose names were unknown, entered into a general conspiracy for the commission of crimes of the character of that alleged to have been committed by the defendant; that subsequently, in the county of Ontario, and in pursuance of such conspiracy, two of the defendant's confederates, with intent to cheat and defraud the prosecutrix, made to her certain material representations and pretenses, which were knowingly false and fraudulent, were relied upon by her, and by which she was induced to make her deed of certain real estate owned by her to be delivered to one of the defendant's confederates upon the payment in cash of the consideration named; that when the deed was made and presented the defendant and his confederates, in the county of Monroe, made other false and fraudulent representations and pretenses, which were relied upon by the complainant's agent, to whom she had intrusted her deed, whereby they induced him to deliver it without payment of the purchase price, and to accept the assignment of a fraudulent and worthless mortgage in place thereof; that they thereupon transferred and procured the property described in such deed to be transferred and mortgaged to and by several of the defendant's confederates and others so as to place the title in the hands of innocent purchasers and beyond the reach of the complainant; that the defendant caused such mortgages and conveyances to be recorded in Ontario county, where the property was situated, and that by such false and fraudulent pretenses and representations the defendant stole and obtained the said deed and title, which was of the value of fifteen hundred dollars.

In considering whether the indictment was sufficient to justify the court in trying the action in the county of Ontario, it must be admitted that the only direct act charged to have been committed in that county by the defendant personally was the delivery to the clerk of that county of certain conveyances which were procured by the false pretenses of his confederates, and procuring them to be recorded. The indictment, however, expressly charged that anterior to any of the fraudulent acts, pretenses or representations made or performed by the defendant or his confederates in that county, they had conspired together for the general purpose of cheating and defrauding the complainant and others of their property by means of fraudulent dealings in real estate and real estate mortgages, and to carry into execution general fraudulent schemes in all essential particulars like that charged in the indictment. Thus it was alleged in plain and explicit terms that the defendant's confederates made false and fraudulent representations and pretenses in Ontario county, which were material and constituted a part of the plan or scheme which led up to and formed an element of the crime charged in the indictment.

It is expressly provided by statute that a person who advises or procures the commission of a crime may be indicted and convicted thereof, although he was absent when it was committed. (Penal Code, § 29.) Indeed, such was the law as it previously existed, the general rule being that what one does or procures to be done through the agency of another is to be regarded as done by him. (People v. Bliven, 112 N.Y. 79.) A person who, by counsel or assistance, procures the commission of a crime is equally as responsible as the actor, and that he may, for some reason, have been incapable of committing it himself, is not controlling or even material where it is shown that he advised or procured its commission. When it is alleged that persons have conspired together to commit an offense, and the proof tends to establish the existence of the conspiracy, the acts and declarations of each of the conspirators are binding upon and to be regarded as the acts of the others, and the question of their guilt becomes one of fact to be determined by a jury. (People v. McKane, 143 N.Y. 455.) Thus the allegations of the indictment were plainly to the effect that in Ontario county the defendant, by and through his confederates, made false and fraudulent representations and pretenses which constituted an essential part of the crime charged.

But it is said that section twenty-nine provides that when the offense is committed through the agency of another, it may be charged as having been committed by the defendant, and, as it was not so charged, the indictment was insufficient. It is true that section declares that it is not necessary to set out in the indictment all the facts which show that the crime was committed through the agency of another, but it nowhere forbids setting out facts showing that the acts of another are, in law, acts for which a defendant is responsible. The obvious intent of that section was to simplify the form of pleading in such a case, but manifestly it was not intended to prohibit the pleader from alleging the facts. That provision is permissive, not mandatory. Moreover, section 275 of the Code of Criminal Procedure expressly provides that an indictment must contain a plain and concise statement of the act constituting the crime, and, as a general rule, the indictment must charge the crime and the acts constituting it. (People v. Dumar, 106 N.Y. 502.) The only effect of that provision in section twenty-nine is to permit the pleader to allege an act as the act of a defendant when he procures it to be performed by another. That the indictment in this case charged all the facts, instead of alleging a conclusion, constituted no sufficient objection to its validity. The defendant, being fully apprised of the particular acts for which he was to be held responsible, had no just reason to complain. While it is not necessary to allege the facts showing that the crime was committed through the agency of another, yet it is plainly to be implied from the language of that section that they may be alleged, and when charged, are equivalent to an allegation that the act was that of the defendant.

The indictment in this case was somewhat informally and inartificially drawn. It may be that, under the strict and technical rules of the common law as it previously existed, a question might have arisen as to its sufficiency, but we think there is none under the more liberal and reasonable rules established by our statutes. Chapter two of title five of the Code of Criminal Procedure contains the following general provisions as to the form of an indictment: "All the forms of pleading in criminal actions, heretofore existing, are abolished; and hereafter, the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code." (§ 273.) "The indictment is sufficient if it can be understood therefrom. * * * 7. That the act or omission, charged as the crime, is stated with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case." (§ 284.) "No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, 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." (§ 285.) "Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment." (§ 286.) "After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties." (§ 542.) "Neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right." (§ 684.)

An indictment for obtaining property by false pretenses is sufficient, if it states and negatives one false pretense, and if proved, the materiality and influence of it is a question for a jury, unless it clearly appears to be immaterial. If it is capable of defrauding by inducing credit or the transfer of property, or of inspiring confidence, that is enough. The purpose of the averment of pretenses in the indictment is only to give the defendant notice of what may be proved against him, and the mode of obtaining the property need not be pleaded. (Thomas v.People, 34 N.Y. 351; Smith v. People, 47 N.Y. 303; Peopleex rel. v. Oyer and Term. County of N.Y., 83 N.Y. 436, 449;Watson v. People, 87 N.Y. 561, 564.) Tested by these principles, it is obvious that the indictment was sufficient, as there was no defect which affected any substantial right of the defendant, and it gave him full notice of what was to be proved against him.

This brings us to the consideration of the question whether, assuming the liability of the defendant for the acts of his confederates and that they were properly pleaded, the allegations in the indictment were sufficient to justify the trial of the defendant in Ontario county. "When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county." (Code Criminal Procedure, § 134.) If this crime was committed partly in Ontario county, it is clear that by virtue of that statute the court had jurisdiction, and properly declined to dismiss the indictment or direct the jury to acquit.

The appellant was indicted for having deprived the complainant of the deed and title to her property situate in Ontario county, by color or aid of fraudulent or false representations and pretenses. It is quite manifest that the allegations in the indictment sufficiently charge that the crime was committed partly in Ontario county and partly in the county of Monroe. The acts and fraudulent representations which induced the prosecutrix to make a deed of her property and obtain an abstract of her title, to send them to the county of Monroe to be delivered to one of the defendant's confederates, were all alleged and proved to have been made and to have transpired in Ontario county. It is apparent that what occurred in that county constituted a step in and led up to the consummation of the crime charged. But for the acts and representations made and performed there, no crime would have been committed. If one of the confederates had not, when acting as a co-conspirator with the defendant in attempting to deprive her of her property by fraud, falsely represented and pretended to the prosecutrix that he was acting for her, in her interest, and as her agent in selling her property, no real or pretended sale would have been effected, and the deed would not have existed which was the subject of the crime charged. But for what transpired in that county, no second step would have been taken towards the commission of the offense. Again, it was consummated there by recording the conveyances fraudulently made and procured by the defendant and his confederates. It was in that county that one of the confederates was presented to the complainant, under a false name, as a prospective purchaser of her property, and she was there induced by their fraudulent acts and pretenses to enter into an agreement for its sale to him. Consequently, as at least some of the fraudulent acts and pretenses were made and performed in that county, it is clear that the offense was partly committed there, and the court had jurisdiction. (People v. Dimick, 107 N.Y. 13;People v. Crotty, 30 N.Y. St. R. 44; Mack v. People,82 N.Y. 235.) We think the indictment sufficiently charged the defendant with the representations, pretenses and acts made and performed by his confederates in the county of Ontario, and with the offense for which he was tried.

It is also insisted that the defendant should have been discharged because there was a failure to prove any material representation by him which was charged and negatived in the indictment. It was charged therein that one of the defendant's confederates fraudulently represented to the complainant that he was acting for her as her agent in the sale of her property, whereas he was not acting for her, but was a confederate of and conspired with the defendant and others to cheat and defraud her. The representations that the proposed purchaser of her property was a man by the name of Stinson, who wished to purchase it for his own occupancy, and desired to move to the village where it was located and engage in business there, and would pay her nineteen hundred dollars in cash therefor, were charged, negatived and proved to be knowingly false. The representations that the mortgage, which the defendant and his confederates induced the prosecutrix's husband to accept instead of cash, was a first lien, as well as a first-class mortgage, were alleged, negatived and proved to have been fraudulent. Other representations and pretenses were alleged, negatived and proved to be false and fraudulent. The defendant's argument that there was a failure to prove the false representations and pretenses alleged is based principally upon the theory that he was responsible only for such acts as were performed by him individually, and not for the fraudulent acts and pretenses of his confederates. The incorrectness of that position has already been shown, as the defendant, both by statute and at common law, was liable for their fraudulent acts.

Another claim of the defendant is that the indictment was defective in failing to set out the deed which was the subject of the offense, and that its contents were insufficiently alleged. The indictment contained a description of the property included in the deed; a statement that one of the defendant's confederates agreed to purchase it and pay therefor nineteen hundred dollars; that the complainant made and executed her warranty deed of the premises to the confederate named, and that it was delivered to him. Thus, the indictment contained a description of the premises, a statement of the consideration, the name of the grantor, the name of the grantee, and the value of the deed. Under the liberal rules which now exist in relation to pleadings and proceedings in criminal actions, to which we have adverted, we think the indictment was sufficient in that respect.

The appellant's contention that the value of the deed was insufficiently alleged cannot be upheld. It is charged in the indictment that the defendant, with force and arms, feloniously obtained and stole the deed mentioned therein and the title to the land of the complainant, which was of the value of fifteen hundred dollars. We think a fair construction of the language employed imported a charge that the deed was of that value. If, however, its effect was to charge the value of the land described therein, then, under the provisions of section 545 of the Penal Code, that was to be deemed the value of the deed. We think the allegation in the indictment amounts to a clear assertion of the value of the deed, that it must have been so understood by the defendant, and that it was sufficient.

If the foregoing conclusions are correct, it disposes of the questions as to the sufficiency of the indictment, and the jurisdiction of the court to indict and try the defendant in Ontario county, which were raised by the defendant's demurrer, his motion to dismiss or otherwise.

It is insisted that many of the representations to the complainant and her husband, which induced the making and delivery of her deed, were expressions of opinion, and although false and known to be so, no liability resulted. As a general rule, the mere expression of an opinion, which is understood to be only an opinion, does not render a person expressing it liable for fraud. But, where the statements are as to value or quality, and are made by a person knowing them to be untrue, with an intent to deceive and mislead the one to whom they are made, and he is thus induced to forbear making inquiries which he otherwise would, they may amount to an affirmation of fact rendering him liable therefor. In such a case, whether a representation is an expression of an opinion or an affirmation of a fact is a question for the jury. The rule that no one is liable for an expression of an opinion is applicable only when the opinion stands by itself as a distinct thing. If it is given in bad faith, with knowledge of its untruthfulness, to defraud others, the person making it is liable, especially when it is as to a fact affecting quality or value and is peculiarly within the knowledge of the person making it. (Watson v. People, 87 N.Y. 561; Simar v. Canaday,53 N.Y. 298; Hickey v. Morrell, 102 N.Y. 454, 463; Schumaker v. Mather, 133 N.Y. 590, 595.)

The proof in this case seems to bring it clearly within the doctrine of the cases cited. The statements and representations made by the defendant and his confederates were more than expressions of an opinion. They consisted of positive assertions, of existing conditions or facts, which were known by them to be false, and were made with an intent to influence the action of the complainant and her agent, and to induce them to refrain from any investigation of the subject to which they related. As they were false, known by the persons making them to be false, were intended to deceive and defraud the complainant by inducing her to rely upon them without investigation as to their truthfulness, they were, under the principle of the authorities referred to, to be regarded as affirmations of fact for which they were liable.

On the trial the court permitted the prosecution to prove transactions of the defendant and his confederates with other persons, which, while they were not in all respects identical with that for which the defendant was tried, still, they were quite similar in all their essential particulars. To the admission of this evidence the defendant objected upon the ground that it was immaterial, incompetent and irrelevant. The objection was overruled and the defendant excepted. There were numerous rulings of this character which present the question whether evidence of other similar transactions was admissible, either to show the intent of the defendant, or as circumstances tending to establish a conspiracy between the defendant and his confederates. On the trial of an indictment for obtaining property by false representations or pretenses, the allegation that they were made with an intent to defraud may be proved by transactions with other parties which tend to show a fraudulent scheme to obtain property by devices similar to those practiced upon the complainant, provided the dealings are sufficiently connected in point of time and character to authorize an inference that the transaction was in pursuance of the same general purpose. Such representations may be proved, although no property was obtained, where the evidence tends to show that, at the time, the defendant was engaged in a fraudulent transaction. While this testimony is not admissible upon the question whether the alleged representations were made, it is admissible as tending to show a motive to obtain the property in pursuance of a general fraudulent scheme. (Mayer v. People,80 N.Y. 364; Shipply v. People, 86 N.Y. 375; People v.Everhardt, 104 N.Y. 591; People v. Dimick, 107 N.Y. 13,31.) Therefore, it is quite obvious that the evidence offered by the prosecution was admissible, unless the transactions were so remote as not to justify an inference that they took place in pursuance of a general plan or scheme to defraud, under which the representations set out in the indictment were made. It is impossible, within the limits to which this opinion should be confined, to examine each of those transactions in detail. It is sufficient to say that after an examination of the evidence bearing upon them, and considering the circumstances established by the proof, we think the exceptions of the defendant to the reception of that evidence were not well taken, but that it was admissible to establish the motive and intent of the defendant and his confederates.

We are also of the opinion that the evidence was sufficient to justify the jury in finding the existence of a general conspiracy between the defendant and his confederates as alleged in the indictment. A conspiracy may be proved by circumstantial evidence, and parties performing disconnected acts, contributing to the same general result, may, by the proof of circumstances and their general connection with each other, be satisfactorily shown to be confederators in the commission of an offense. (Kelley v. People, 55 N.Y. 565; People v. McKane,143 N.Y. 455.) Considering the relations which existed between the various parties who were actors in the commission of this crime, the circumstances proved, and the various acts of the defendant and his alleged conspirators in this and other transactions of which proof was given, it becomes manifest, we think, that the jury was justified in finding that they had conspired together for the commission of this and other similar offenses, and that the verdict of the jury was abundantly sustained by the evidence.

The contention of the appellant, that the evidence of other transactions by the defendant and his confederates was inadmissible, because it tended to prove that they were guilty of other crimes, cannot be sustained. It is well settled by the decisions of this court that while evidence of the commission of one crime is not admissible to establish a party's guilt of another, yet, that is not inadmissible because it tends to prove another crime if it is otherwise material and relevant. That such evidence is admissible where its purpose is to show intent or guilty knowledge, or where the transaction proved had some relation to or connection with the transaction upon which the indictment was based, or where it formed a link in the chain of circumstances or facts which led up to the transaction involved, we think there can be no doubt under the authorities as they exist in this state. (People v. McLaughlin, 150 N.Y. 386.) This case clearly falls within the exceptions to the general rule, and as the evidence was relevant to the issue it was not inadmissible simply because it tended to prove the defendant and his confederates guilty of other crimes.

Another ground upon which the appellant urges that the judgment should be reversed is that "the court erred in admitting the testimony of George H. Harris under various exceptions, because the evidence was that of an alleged confederate a week after the alleged crime and conspiracy had been completed, and was prejudicial to the defendant." It is manifest from the brief of the learned counsel that the evidence of the witness is regarded by him as proof of admissions by a confederate made after the crime was committed and the conspiracy ended. In other words, that it was a mere narrative of past transactions. In this, we think, he is in error. The evidence was not of declarations made by a conspirator relating to the past, but was proof of a constituent element of the transaction for which the defendant was indicted. The evidence of the witness was as to an actual transaction which took place between himself, as the representative of the complainant, and one of the defendant's confederates, in regard to the complainant's property during the existence of the conspiracy. The rule that where several persons are engaged together in the furtherance of a common illegal design, the acts and declarations of one confederate, made in pursuance of the original concerted plan and with reference to the common object, are competent evidence against the others, though made in their absence, is a familiar one and well established by the authorities in this state. It is true that under that rule the evidence is confined to that which the rule of res gestæ admits, and excludes narratives of past transactions. (Apthorp v. Comstock, 2 Paige, 487; People v. Kief, 126 N.Y. 661.) But that principle has no application here, as the evidence tended to show that the conspiracy between the defendant and his confederates still continued, and that the act of the latter, which was proved, was a part of the general plan and scheme of the conspirators. The evidence was a part of the res gestæ, and was clearly admissible.

There were other exceptions taken by the appellant which have been examined by us, but we have found none that requires further discussion, or that would justify an interference with the judgment.

The importance of this case, involving, as it does, the liberty of a citizen on the one hand and the protection of the innocent and unwary upon the other, has led us to a diligent study of the case and questions so ably discussed by counsel for the respective parties. After a careful examination of all these questions we are clearly of the opinion that none of them presents reversible error. We think the indictment was sufficient; that the court had jurisdiction; that the evidence was abundant to justify the verdict, and that the judgment should be affirmed.

Judgment, interlocutory judgment and orders affirmed; judgment affirming them to be entered, certified and remitted, pursuant to sections 547 and 548 of the Code of Criminal Procedure.

All concur, except GRAY, J., absent.

Judgments and orders affirmed.