People v. . Arnstein

It is necessary to consider only the indictment charging fraud upon Shinks, which is perhaps the weaker one of the two.

The district attorney relies on section 1930, subdiv. 1, ofthe Penal Law, (Cons. Laws, ch. 40) which reads thus:

"The following persons are liable to punishment within the state: (1) A person who commits within the state any crime, in whole or in part," etc.

The theory of the district attorney is that the facts charged in the indictment constitute a crime under the laws of this state familiarly known as obtaining property by false pretenses, and the allegations that the conspiracy to commit the offense was formed within the state, and the false representations, or some of them emanated from the state, bring the case within the provisions of the Penal Law quoted, even though the property was actually obtained in another state, and regardless of the law prevailing there.

The argument of defendant's counsel is that section 1930, subdivision 1, of the Penal Law, on which the district attorney relies, has relation by its very words only to a crime committed in this state. That a bare conspiracy to obtain property by false pretenses without any overt act is not a crime in this state, and neither is the mere making of false representations a crime. It makes no difference upon the defendant's theory whether the conspiracy or the false representations in this state, taken in connection with the acts which followed, done and performed in another state, were criminal in the latter state or not.

The counsel on both sides ignore the foreign law altogether in their construction of subdivision 1, section 1930. In that regard I think they are in error. The object of the enactment, like all penal laws, was to punish crime. Manifestly, in the present case, if the acts done within the state did not amount to a crime under our law, and the acts done without the state, taken in connection with what preceded them here, did not amount to a crime in the place where the transaction was consummated, there was no crime committed anywhere. There must be crime before subdivision 1, section 1930, will apply at all.

Of course, it is not sufficient that the facts charged constitute a crime only in the foreign jurisdiction, for we do not undertake to enforce the laws of other states. The offense in its completed form must also be a crime under the laws of this state. (People v. Botkin, 132 Cal. 231.)

The special object of the legislature was that criminals should not find within the limits of this state a safe place from which to launch offenses against the laws of other states where the nature of the offenses was such as would make them punishable under our laws. The statute was not enacted altogether in a spirit of comity, but to maintain the peace and dignity of our own people.

Subdivision 1 of section 1930, as herein construed, rounds out and completes the law. Crimes instigated in other states and completed here are taken care of in other subdivisions of section 1930, and by section 1933, and are punishable regardless of the foreign law. And if the acts done within the state are in and of themselves offenses against our laws, they are taken care of by other sections of the Penal Law.

There was a very good reason why the legislature did not provide for the punishment of persons who enter into conspiracies or schemes to do acts unlawful here which are in fact done in another jurisdiction where they are not unlawful. In our Penal Law many acts and omissions are defined as crimes which are only venial, and are not regarded as unlawful in some other states of the Union. The legislature did not deem it necessary to punish such delinquencies consummated in another state, though originating in this state.

Therefore, it was necessary to show in the indictment that the acts charged against the defendants constituted a crime under the laws of New York, and also constituted a crime of a corresponding nature under the laws of Massachusetts and Connecticut. In that respect the indictment is faulty.

We are to assume that the common law prevails in Massachusetts and Connecticut. (People ex rel. Lawrence v. Brady, 56 N.Y. 182;First Nat. Bank v. National Broadway Bank, 156 N.Y. 459;Int. Nat. Text Book Co. v. Connelly, 206 N.Y. 188.) The charge in the indictment amounts to a cheat at common law. All the elements of that offense are presented by the facts alleged. There was a conspiracy to defraud; there were false pretenses believed by the person cheated; and the property of the victim was actually obtained. (Wharton's Crim. Law, vol. 2 [11th ed.], §§ 1378, 1389; People v. Stone, 9 Wend. 182, 188.) But the offense of cheating at common law as defined by the authorities was only a misdemeanor. (Wharton's Crim. Law, § 1378; Mowrey v.Walsh, 8 Cow. 238.)

The crime charged against the defendants in the indictment under consideration is grand larceny, a felony, and in my opinion it cannot be sustained on the assumption that the acts committed in Massachusetts and Connecticut constituted only a misdemeanor. It was necessary to show that grand larceny or some crime which corresponds to that offense, by whatever name known in the foreign jurisdiction, had been committed by the defendants to bring the case within the provisions of section 1930, subdivision 1.

For the reasons which I have stated, I recommend that the order appealed from be reversed, and that the order of the Court of General Sessions, in and for the city and county of New York, be affirmed.