People v. . Dimick , 107 N.Y. 13 ( 1887 )

[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.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The Thames and Mersey Insurance Company (Limited), of Liverpool, London and Manchester, was a foreign corporation authorized to transact business within this State, and it had a general agency for this country in the city of New York, which was in charge of Angus J. McDonald its general agent. The Union Insurance Company of Philadelphia and the Insurance Company of the State of Pennsylvania were Pennsylvania corporations authorized to do business in this State, and the Continental Insurance Company was a domestic corporation. During the year 1883, Thomas G. Crosby and the defendant Lorenzo Dimick were insurance agents at Buffalo doing business under the firm name of Crosby Dimick, and as such they had the agency of all these companies although in fact the agency of the Continental Insurance Company was in the individual name of Dimick. They were the general agents of all these companies for their inland marine insurance and as such had very general and extensive powers. They had sub-agents at various ports upon the lakes who took risks upon vessels and cargoes and reported them to Crosby Dimick at Buffalo, who were authorized to reinsure such risks or a portion of them in their discretion. The particular facts constituting this crime, as the evidence tends to show, are as follows: In the latter part of October, 1883, an insurance was effected in the Union Insurance Company by the sub-agent at Detroit upon a cargo of wheat in the schooner James Wade for the voyage from Detroit to Buffalo for $10,500, and Crosby Dimick were at once notified of such insurance. By the direction of the defendant $7,000 of that risk was at once reinsured in the Continental Insurance Company and proper entries to that effect were made on the papers and books of the firm, and the reinsurance became effectual. The schooner never reached her destination, and after the defendant had heard of her loss, about the middle of November, he gave directions to some of the clerks in his office to cancel the reinsurance in the Continental and place $5,000 of reinsurance in the Thames and Mersey. By erasures on the books and papers and new entries this was in form done, the purpose being to shield the Continental from loss and to impose it to the extent of $5,000, wrongfully and fraudulently, upon the Thames and Mersey. Subsequently the defendant represented to Macdonald that the Thames and Mersey had the insurance of $5,000 upon the cargo of the Wade, made to him proofs of loss and drew upon him a draft for the amount less a small percentage to wit., the sum of $4,975, which he as agent of the Thames and Mersey paid, and thus the alleged crime was consummated.

The General Term, in its order of reversal, certified that it found no reason for granting a new trial in the exercise of its discretion or upon the facts after a full consideration of the same and that it reversed the judgment and granted the new trial for errors of law exclusively. We are, therefore, confined in our examination of this case exclusively to the consideration of questions of law raised in the record.

As appears by the opinion pronounced at the General Term, the reversal was there based upon two errors of law which we will first consider.

Upon the trial McDonald was called and examined as a witness for the people, and then he was cross-examined on behalf of the defendant. During his cross-examination he was questioned as to a certain civil action commenced by the Thames and Mersey Insurance Company against the defendant in which he had verified the complaint. Without showing or permitting him to read the complaint, defendant's counsel asked him what he swore to as to a particular matter, and he gave answers showing that the complaint contained an allegation somewhat at variance with his evidence upon his direct examination. After his cross-examination was concluded, he was re-examined on behalf of the People, and the district attorney said: "I desire to offer this copy of the complaint in evidence — the whole of it." Counsel for the defendant said: "I object to it," and the court said, "I think it may be put in evidence for the purpose of showing what he testified to; it can't be evidence upon any other point." The record then shows that the objection was overruled, that an exception was taken and that the complaint was received and marked as an exhibit.

The complaint did contain much matter not relevant to the cross-examination of McDonald and not needful or pertinent to explain or qualify such cross-examination. It contained thirteen counts, only one of which related to the matter inquired of upon the cross-examination, and, therefore, the whole complaint was, in no sense, competent evidence, and if the court ruled that it was all competent and allowed it to be read to the jury, as now claimed by the defendant, a clear error was committed. The district attorney had the right to read so much of the complaint as related to the cross-examination and as tended to explain or qualify the facts elicited upon such examination as to its contents, and no more. It cannot be presumed that the trial judge committed the obvious error of allowing the whole complaint to be read to the jury as evidence, and it does not appear that he did. The record does not even show that any part of the complaint was read to the jury, much less that the whole of it was. The district attorney could not prove part of the complaint without proving the whole of it, and he could not put part of it in evidence without proving the whole of it. The whole having been proved, the defendant should have objected to the reading of more than was pertinent and material. Instead of doing that he objected to the whole of it as evidence, and in no way called the attention of the court to the point that only a portion of it was competent. The whole complaint was necessarily received in evidence and marked as an exhibit. But it is a fair construction of what was said by the trial judge in overruling the defendant's objection that he received the complaint only for the purpose of showing what McDonald had sworn to as to the matter inquired of upon his cross-examination, and that he ruled that it was not evidence as to any other matter. With these limitations the complaint was properly received in evidence and the general objection, therefore, was not well taken.

The trial judge charged the jury "to the effect that whether the insurance was legal or illegal the reinsurance by the Thames and Mersey is of no consequence," and to this portion of the charge the counsel for defendant excepted, and it was supposed at the General Term that the exception pointed out substantial error.

If the effect of the judge's charge was to give the jury to understand that it made no difference in the case whether the reinsurance in the Thames and Mersey was legal or illegal, then the portion of the charge excepted to was erroneous. If the insurance was legal, then there was no false pretense, and no crime was committed within section 528 of the Penal Code, and the gist of the charge made against the defendant in the indictment was unproved. Even if a single phrase, isolated from the rest of the charge, should be found to be erroneous the judgment should not on that account be reversed if the whole charge properly instructed the jury, and it can be seen with reasonable certainty that the erroneous portion did not mislead the jury or influence their verdict.

Reading the whole charge there can be no mistake as to its meaning. It clearly instructed the jury that before they could convict the defendant they must find that the insurance in the Thames and Mersey was illegal and invalid, and that the defendant obtained the money of McDonald by falsely pretending that the insurance was valid and that the company was liable to pay.

The whole course of the trial showed clearly that it was the purpose of the people to show that the insurance in the Thames and Mersey was effected by the defendant after the cargo of the Wade was known by him to be lost, when he could not effect a legal or valid insurance thereon, and that it was the purpose of the defendant to show and claim that the insurance was made before the loss was known to the defendant; and, long before the charge was given, the jury must have fully comprehended that the defendant could not be convicted unless they found that the insurance was effected by him, after knowledge by him of the loss, as claimed by the People. The whole sentence, of which the phrase excepted to is a portion, is as follows: "The court charges the jury to the effect that whether the insurance was legal or illegal the reinsurance by the Thames and Mersey is of no consequence, assuming that the general agent of the Thames and Mersey had it represented to them that there was a reinsurance or insurance in their company which was entered in the books, and that relying upon it, their agents so representing, they paid the money on the strength of the representation, though that was false; that they would be guilty of the offense alleged in the indictment if they by reason of the fact that the time had gone by when they could make a legal insurance the insurance itself was illegal." Here is undoubtedly some confusion of ideas and an unfortunate and infelicitous use of language, and the entire meaning of the learned judge is certainly not clear. But, in view of the course of the trial above alluded to, there can be no reasonable doubt that the jury understood that they could not find the defendant guilty of the offense charged, unless they found that the insurance was illegal because effected by the defendant after he had knowledge of the loss. This is made still more clear by a reference to other portions of the charge. Immediately following the portion of the charge above quoted the judge charged the jury that the agents could effect reinsurance upon vessels lost provided that they did not know of the loss, and that such insurance would be legal; "that the meaning of the contract (between the company and the agents) is that when a boat starts out with insurance upon it, the agents had full power and right to reinsure though not knowing or having notice or suspicion that a loss had occurred. Though it turns out that the insurance was effected when the schooner was lying at the bottom of the sea, it would be a valid insurance under these contracts. On the other hand, an insurance is taken out and no reinsurance is effected until the vessel is actually lost and until notice is given to the agent of the loss and thus a reinsurance is effected with the intent and for the purpose of defrauding either the agent or one company in preference to another and with intent to defraud the company with whom the reinsurance is put, and it is done with the knowledge or suspicion for that purpose and intent that the vessel is at the bottom of the sea, then the crime is committed because it is not the intent of the contract that a reinsurance could be effected upon a loss which was decided at the time it was effected, assuming such a loss got to the knowledge of the person effecting the insurance or reinsurance. So the jury will see that the question of fact for them to decide is, as to whether in the case before us that the ``James Wade' insurance was effected in the Thames and Mersey after notice came to the defendant of the loss of the vessel. If the jury should find that the reinsurance alleged and charged in the indictment was effected after such loss, and that the defendant knew it and that it was effected with intent and for the purpose of defrauding this company in which the insurance was made for the benefit of one company in preference to another, or for the agent's own benefit or both with that intent or felonious intent, then the offense charged in the indictment would be made out, otherwise not." Then after calling attention to the evidence on both sides as to the times when the reinsurance was effected in the Continental and in the Thames and Mersey, and the time when the defendant had notice of the loss of the Wade, he further charged: "You have the evidence introduced on the part of the people and the evidence introduced on the part of the defense upon that proposition, upon that branch of the case, and one question of fact and a very important question of fact for the jury to determine is, as to whether this reinsurance from the Continental, thus reinsuring the Continental from a portion of her burden was effected after notice of the loss got to the defendant, whether he caused such reinsurance to be made for the purpose and with the intent of charging some other company with the payment of the loss instead of the company in which the reinsurance had been regularly effected." There is more in the charge to the same effect. It was impossible for the jury, from the course of the trial and the whole charge, to misapprehend the law. They were plainly instructed that if the reinsurance in the Thames and Mersey was effected by the defendant before he had notice of the loss it was a lawful insurance and the defendant could not be convicted, and that if such reinsurance was effected after the defendant had knowledge of the loss, it was unlawful and invalid, and, the evil and fraudulent intent being found, the defendant could be convicted. And this instruction was right. Marine insurance can lawfully be effected upon property "lost or not lost," and Crosby Dimick had authority to make such insurance. But the phrase "lost or not lost" in marine insurance always has reference to cases where property has started upon its voyage and the parties to the insurance have no knowledge whether it has been lost or not. In such cases the insurance is against an unknown event and the underwriter takes the risk of the arrival of the property at its destination, and thus there is something to insure. But in case the property has been totally lost and the parties to the insurance know that, there is nothing to insure, there is no longer any risk, no unknown event upon which to base a contract of insurance, and no future event to be indemnified against, and hence there can be no valid or lawful insurance.

We are, therefore, of opinion that the judgment ought not to have been reversed for any of the reasons stated in the opinion of the learned General Term.

But the defendant has the right now to rely, for the purpose of sustaining the reversal, upon any error to be found in the record. His counsel has, therefore, called our attention to many exceptions taken at the trial, to the most important of which we will now give some consideration.

It is contended that the indictment does not sufficiently charge the offense because it does not allege what the perils and risks were against which the defendant represented the Thames and Mersey had insured the cargo of the Wade, or that the defendant represented that a loss had occurred from a peril against which the company had insured, or that the defendant represented that any person was insured, or that the defendant knew of the falsity of the representations. The Code of Criminal Procedure in sections 275, 276, 284 and 285, provides rules by which the sufficiency of an indictment may be tested. It must contain a plain and concise statement of the act constituting the crime without unnecessary repetition, and it is sufficient if the act charged as the crime is plainly and concisely set forth with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case, and no indictment is insufficient by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. This indictment will stand the statutory tests.

The first count is clearly good, and it is well settled that if one of several counts in an indictment is good, that is sufficient to sustain a conviction under a general verdict of guilty. (People v. Davis, 56 N.Y. 95; People v. Willett, 102 id. 251.) It is alleged in that count that the defendant represented that the Thames and Mersey had a valid insurance upon the cargo of the Wade, that a loss had occurred in consequence of which the liability of the company had become fixed, and that it had thus become legally liable to pay the amount insured. It was wholly unimportant to specify the precise peril against which the defendant represented the company had insured, and it was sufficient to charge simply that the representation was of valid insurance upon the cargo described, and that a loss had occurred which imposed liability upon the company. The indictment does allege that the defendant represented that the insurance was for the benefit of some person, but that the person was to the grand jury unknown. It is sufficiently alleged that the defendant knew the representations to be false. It is charged that "in truth and in fact each and every of the pretences and representations so made by the said Lorenzo Dimick as aforesaid was and were wholly false and fraudulent and untrue, and the said Lorenzo Dimick then and there well knew such was the case," that is, very plainly, that the defendant knew that the pretenses and representations were wholly false, fraudulent and untrue; and no person could attach any other meaning to the words "knew such was the case."

Whether the representations alleged in the indictment were such as were calculated or capable to deceive was a question of fact for the jury. It could not be ruled as matter of law upon the face of the indictment that the representations could not and ought not to have deceived any one.

The property alleged to have been obtained from the Thames and Mersey is sufficiently described in the indictment in the words "the sum of four thousand nine hundred and seventy-five dollars in money of a kind and description to the grand jury unknown and a more particular description of which cannot now be given of the value of four thousand nine hundred and seventy-five dollars." There never was a time in the history of the law when this description of the property obtained would not have been held sufficient. There was the best description which could then be given. The kind of money was unknown. But it was money, currency, a circulating medium of some kind, and what is more important, it was of the value named. These allegations were sufficient to answer all the tests of the Code, to protect all the rights of the defendant and to enable the court to pronounce judgment "according to the right of the case."

It is further contended that the indictment is defective in charging more than one crime contrary to sections 278 and 279 of the Code. These sections provide that the indictment must charge but one crime and in one form except that the crime may be charged in separate counts to have been committed by different means; and when the acts complained of may constitute different crimes, such crimes may be charged in separate counts. Here the crime charged was stealing the property of the Thames and Mersey. In the first count the crime is charged under section 528 of the Penal Code to have been committed by means of the false pretenses and representations alleged; and in the second count the same crime is charged under section 529 to have been committed by drawing the money from the Thames and Mersey by means of a draft which the defendant knew he was not entitled to draw. This then is a case where the indictment charges in separate counts the same crime to have been committed by different means, and the practice is expressly authorized by the Code.

The People were allowed to give evidence upon the trial tending to show that in other cases during the season of 1883, after knowledge of the loss, the defendant changed insurance from the Continental to the Thames and Mersey and other companies for the purpose of shielding the Continental from loss and imposing it upon the other companies. This evidence was objected to on behalf of the defendant and its reception is now complained of as error. Such evidence has always been held competent in this class of cases. Here it was necessary for the People to show the evil motive and fraudulent intent of the defendant in changing the insurance upon the cargo of the Wade, after knowledge of the loss, from the Continental to the Thames and Mersey; and for the purpose of showing the motive and intent, it was competent for the People to show that the defendant had done other similar acts, although it might thus be shown that he was guilty of other crimes. (Mayer v. People, 80 N.Y. 364; People v. Shulman, id. 373; People v. Everhardt, 104 id. 591.) The proof as to the other crimes may have been inconclusive, but the People had the right to give it and have it submitted to the jury with proper instructions for their consideration.

The indictment charges that by means of the fraud alleged the defendant obtained "money" of the Thames and Mersey, and it is contended by defendant's counsel that the proof showed that instead of money the company parted with a draft for the payment of money, and hence that there was an entire failure to prove the charge contained in the indictment. The facts are that the defendant drew upon McDonald, the general manager in the city of New York of the Thames and Mersey, a draft for $4,975, at three days sight. This draft was sent to New York to the National Bank of the Republic and by it was presented to McDonald and was by him accepted on the 11th day of December, 1883. On the seventeenth day of December the Thames and Mersey, by McDonald as its agent, gave to the National Bank of the Republic its check upon another bank for the payment of the draft and the draft was thus paid and surrendered, and as the amount of the check was credited on the books of Crosby Dimick, it is clear that in some form it reached them in Buffalo. The National Bank of the Republic must be deemed to have been the agent of the defendant to receive the payment of the draft and payment to it must in law be treated as payment to him. And the bank upon which the Thames and Mersey drew its check must be treated as its agent in making the payment. And thus upon the facts in every real sense money was paid to the defendant, and the charge in the indictment was substantially proved.

It is further objected on behalf of the defendant that the proof failed to establish that the crime was committed in Buffalo. It was partly committed there. Some of the false representations were made there, and some of the steps leading up to the consummation of the crime were taken there. The first oral false representation as to this insurance made by the defendant to McDonald was made there, and the draft and all the other papers were drawn there and sent thence to New York, and the fruits of the crime were finally received in Buffalo, and thus it is clear that the crime was partly committed in Buffalo and partly in the city of New York, and that the case comes within section 134 of the Code of Criminal Procedure, which provides that "when a crime is committed partly in one county and partly in another, or the acts or effects thereof constituting or requisite to the commission of the offense occur in two or more counties, the jurisdiction is in either county." This section conferred jurisdiction upon the Oyer and Terminer to try the case. But our attention is called to section 28 of the Code of Criminal Procedure, which defines the criminal jurisdiction of the Buffalo Superior Court, and provides that it may inquire "by a grand jury of all crimes committed in the city of Buffalo," and that it may "try and determine all indictments found therein or sent there by another court for a crime committed in that city." It may be that section 134 does not affect the jurisdiction of the City Court, and that it has jurisdiction only of crimes wholly committed within the city, and that thus its grand jury did not, in fact and law, have jurisdiction to inquire of this crime. But the grand jury did inquire and did determine that the crime was committed in the city of Buffalo, and it found the indictment. It was clothed with power to determine both the facts and law, and we know of no way to review its determination unless it be by motion to quash the indictment or to arrest judgment, and no such motion was made. Upon the trial of the indictment in the Oyer and Terminer, under the plea of not guilty, the only question was as to the defendant's guilt and the jurisdiction of the court to try that question. If the court had jurisdiction of the offense and the offender it could try the case and render judgment, and hence the refusal of the following request to charge, which is now complained of, was not erroneous: "That if the jury believe that the money mentioned in the indictment was paid by the Thames and Mersey Insurance Company through McDonald, its agent, by the latter drawing his check in New York city, upon his bank in New York city, to meet the draft drawn upon the Thames and Mersey Insurance Company, payable in the city of New York, then this crime charged in the indictment was not committed in the city of Buffalo or county of Erie, but in the county of New York, and they cannot convict the defendant under either count of the indictment."

There are very many other exceptions to rulings upon questions of evidence and to the charge as made, and to refusals to charge as requested, found in the record and discussed in the elaborate and able brief presented on behalf of the defendant. They are so numerous that it is wholly impracticable to give them particular attention here. We have carefully examined and considered them all and do not believe that any of them point out any error prejudical to the defendant. He appears to have had a fair trial, and the verdict of the jury seems to be abundantly sustained by the evidence. Section 542 of the Code of Criminal Procedure provides that "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;" and section 684 provides that "neither a departure from the form or mode prescribed by this Code in respect to any pleadings or proceedings, nor any error or mistake therein renders it invalid, unless it has actually prejudiced the defendant, or tends to his prejudice, in respect to a substantial right." These are mandates of the law making power, and the courts should, with reason and discretion, give them full force and effect. Giving them the observance due in this case, we find no exception in the record showing that the defendant has been prejudiced in respect to any substantial right.

The judgment of the General Term should, therefore, be reversed and that of the Oyer and Terminer affirmed.

All concur.

Judgment reversed.