Bork v. . the People of the State of New York

91 N.Y. 5, 1 N.Y. Crim. 379, 1883 N.Y. LEXIS 2

• Court: New York Court of Appeals
• Decided: January 16, 1883
• Status: Published

Opinion

Andrews, Ch. J.

The indictment under which the conviction was had, which is now the subject of review, was found under the act of February 17,1875 (chap. 19), entitled, “An act to provide more effectually for the punishment of peculation and other wrongs affecting public moneys and rights of property.” The first section, which defines the offense of which the defendant was convicted, is as follows : “ § 1. Every person who, with intent to defraud, shall wrongfully obtain, receive, convert, pay out, or dispose of, or who, with like intent, by willfully paying, allowing, or auditing any false or unjust claim, or in any other manner or way whatever, shall aid or abet any other in wrongfully obtaining, receiving, converting, paying out, or disposing of, any money, fund, credits, or property, held or owned by this state, or held or owned, officially or otherwise, for or on behalf of any public or governmental interest, by any municipal or other public corporation, board, officer, agency, or agent of any city, county, town, village or civil division, sub-division, department or portion of this state, shall, upon conviction of such offense, be punished by imprisonment in a state prison for a term not less than three - years, nor more than ten years, or by a fine not exceeding five times the loss resulting from the fraudulent act or acts which he shall have so committed, aided or abetted, to be ascertained as hereinafter mentioned, or by both such fine and imprisonment.”

The indictment charges, in the con junctive, that the defendant, with intent to defraud, did feloniously and wrongfully obtain, receive, convert, and dispose of the bonds mentioned. The statute is pointed against the criminal misapplication of public funds or property. The offense may be committed in any one of the several ways mentioned, that is, by receiving, obtaining, converting, etc., such funds or property wrongfully with intent to defraud. It was not necessary to prove that the defendant did all the specific acts charged in the indictment, to justify a conviction. It was sufficient to prove that he did any one of the acts constituting the offense. Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together, and charge the defendant tb have committed them all, and a conviction may be had on proof of - the commission of any one of the things, without proof of the commission of the others. People v. Davis, 56 N. Y. 95.

The question whether the proof established a wrongful receiving by Bork of the City and County Hall bonds, as charged in the indictment, was fully argued by the respective counsel. We do not deem it necessary to determine this question! There is much plausibility in the suggestion, that as the bonds were delivered to Bork by the comptroller, voluntarily, and according to the established course in respect to the bonds of the city, intended for negotiation, and without any request by Bork, or any fraud or artifice on his part to induce the delivery, he could not be deemed to have received or obtained them wrongfully. The fact that Bork was then a defaulter, and that he misappropriated a portion of the bonds soon after they come to liis possession, is claimed on the other hand to furnish an inference that when he received them he intended to defraud the city, and that, if such intention existed, he received them wrongfully within the statute. Whatever may be the correct view of this question, it is unnecessary to decide, for the reason that assuming,, as the defendant’s counsel contends, that Bork did not wrongfully receive or obtain the bonds, his subsequent delivery of the bonds to the broker in Hew York for sale, accompanied with a direction to credit Lyon & Co., with the proceeds of sale of twelve of the bonds, was a clear conversion of these bonds, it being his intention, as the jury have found, to appropriate them to the use of his firm. The bonds were delivered by the comptroller to Bork for a specific purpose, viz: for sale in the city of Hew York for the city of Buffalo. The authority, conferred doubtless included an authority to sell them through a broker according to the custom. But the direction to sell the bonds for and on behalf of the city, was inseparable from the authority to sell, and a sale for his own benefit was not a sale within the power. His direction to sell the bonds and credit the proceeds to Lyon & Co., was the exercise of a dominion over them, inconsistent with the right of the true owner, and was a conversion of the bonds. Whether the indictment, charging Bork with the conversion of the proceeds, might not have been sustained, is not material. That the transaction may be treated as a conversion of the bonds is plain. The principle was decided in Commonwealth v. Butteriek (100 Mass. 1), where it was held that an indictment for the embezzlement of a promissory note, taken by the defendant to be discounted at a bank for another person, was supported by proof that the defendant procured the note to be discounted at the same bank on his own account and the proceeds placed to his own credit. We are therefore, of opinion that the proof sustains the conviction on the merits, unless the learned counsel is right in the contention that, assuming a conversion of the bonds, still the case is not within the statute.

Bork, at the time of this transaction, was treasurer of the city of Buffalo. It is insisted that he received the bonds by virtue of his office as treasurer, or, if not strictly as an official trust, at least as the servant or agent of the city, and that his conversion of them constituted the crime of embezzlement (2 R. S. 678, §§ 59, 60 ; Laws 1874, ch. 207). It is further claimed that the statute of 1875 was not intended to apply to the offense of embezzlement, already defined and punishable by existing laws, but was intended to make something criminal, which was. not criminal before, and that this new offense, while neither larceny nor embezzlement, was something else of which the ingredient to defraud the public, was the essential element, but which was not' before the subject of indictment. This argument overlooks, we think, the purpose and language of the statute in question. We have no doubt that frauds by private persons holding no fiduciary relations to the state or a municipality, are within the purview of the act. But we think the act applies to cases within its general language, whether the offender is an officer, agent, or servant having the custody of the funds charged to have been, misappropriated or owing a special duty in relation thereto, or a private individual having no official or other confidential relation to the state or municipality defrauded by his act.

It is a part of the public history of the time, that when the act was passed, public attention had been recently called to gross frauds committed by municipal officers, especially in the city of Mew York, in the abstraction, diversion, and embezzlement of public funds and property. The malfeasance of officials intrusted with public means and property, was the danger especially apprehended. Without their direct act or connivance, it would be difficult to accomplish the frauds against which the statute was aimed. It was one of the purposes of the act, as the word peculation in the title indicates, and, perhaps, its primary purpose, to afford additional security against the betrayal of official trusts, by imposing severer punishment for embezzlements, or other frauds, when committed by public officers in misapplying public property, than was provided by existing laws. The language of the statute defining who may be offenders is as broad and comprehensive as possible. “ Every person ” is the language used. The acts constituting the offense include the wrongful pa/yvng out of public funds, and the willful paying, allowing, or auditing an unjust claim with intent to defraud. These particular acts could ordinarily only be committed by officers or agents having a duty to perform in respect to the public funds, or clothed with a public trust in the adjustment of claims. Moreover, the second section of the act is framed to meet the case of a wrongful transfer by public officers of deposits in banks of any credit, claim, chose in action, or right, or demand belonging to the public, by which the public right shall be defeated or impaired, and declares that such transfer shall be deemed a conversion within the act. And finally, to put it beyond doubt that offenses punishable by existing laws were not excluded from the purview of the act, it is declared in the third section, that if on any trial (under the act) “it shall appear that the acts of which the defendant was guilty constitute any other crime, he shall not, by reason thereof, be entitled to an acquittal; but after such trial and judgment, he shall not be liable to prosecution for such other crime.” It was certainly competent for the Legislature to provide, by an independent statute, that certain acts of embezzlement, punishable by the existing statute, should constitute a distinct offense, and affix a severer punishment than was provided by the general law relating to that class of offenses.

The effect of the construction of the act of 1875, claimed by the defendant, viz.: that it applies to frauds by private persons only, would be to subject them to a much greater punishment than is visited upon faithless officials guilty of embezzlement, a crime of greater turpitude than the fraud of a private person, involving, as it does, in addition to the element of fraud, a breach of public trust, and it is difficult to suppose that such discrimination was intended.

We are of opinion, therefore, that, assuming that the facts proved constitute the crime of embezzlement, the indictment was properly framed, and the conviction legally had, under the statute of 1875. It was unnecessary to aver in the indictment the fiduciary relation of the defendant. In an indictment for embezzlement, under the statute of embezzlement, such an averment is essential (Com. v. Simpson, 9 Met. 138), because the existence of that relation is an essential element of the crime. Under the statute of 1875, that is not the case, as the offense may be committed either by an officer, servant or agent, or by a person occupying no such position. The evidence that Bork was, in fact, treasurer, was not, however, objectionable. It was one of the facts of the case, and tended to illustrate and explain other pertinent facts.

The further point was taken on the trial, and is urged on the appeal that the bonds, not having been issued when they were received by Boric, had no intrinsic value, and were not “ money, funds, credit or property ” of the city of Buffalo, within the descriptive words of the statute. It is incontestable that they did not become valid obligations of the city of Buffalo until they had an inception by the -transfer and sale. But they were, when received by Bork, complete in form and capable of becoming effective instruments by delivery to a Iona fide holder. We think they were properly described as bonds in the indictment, and that they were, though unissued, property within the meaning of the statute of 1875.

In People v. Wiley (3 Hill, 194), the indictment charged the receiving by the defendant of “ ten promissory notes, usually called bank-notes, of the value,” etc., knowing them to have been stolen. The proof was that the bills were stolen from the bank, whose bills they xvere, and which, though complete in form, had never been issued. The court sustained the conviction.

In Commonwealth v. Band (7 Met. 475), the indictment was for the larceny of certain bank bills which had been redeemed by the bank, and were in the hands of its agent at the time of the theft. »The statute of Massachusetts specified bank bills as the subject of larceny, and the court held that the indictment was sufficient.

The counsel for the defendant refers to the case of People v. Loomis (4 Denio 380), in which it was held that stealing a receipt from the hands of the party wdiose act it is, it never having taken effect by delivery, is not larceny. The stealing of personal property, and not of personal goods, as at common law, is by the Bevised Statutes (2 R. S. 679, § 63), larceny, and the words personal property, as used in the chapter containing the section above referred to, are declared to mean “ goods, chattels, effects, evidence of rights in action, and all written instruments by which any pecuniary obligation, or any right or title of' property, real or personal, should be created, acknowledged, ' transferred, increased, defeated, discharged or diminished.” An unissued receipt is not within the descriptive terms of this statute, and if stolen from the person who signed it, it neither defeats, discharges, nor diminishes any right. The only possible consequence is to subject the. party signing it to inconvenience, in showing the circumstances under which the possession was obtained, but this element does not make the transaction larceny within the statute. The learned judge who delivered the opinion in People v. Loomis, justifies his conclusion by reference to some early English cases, among others, Walsh’s case (R. & R. Cr. Cas. 215), which arose under Stat. 2 Geo. II., ch. 25, in it was held that a check signed, but not delivered while it remained in the hands of the owner, is not the subject of larceny. By that statute, the stealing of certain written securities was made larceny, but the statute declared that the money due thereon, or secured thereby, and remaining unsatisfied, should be taken as the value of the securities stolen, and the court construed the statute as referring to securities which were valid outstanding securities, and which were, therefore, presumptively of the value of the sum expressed therein, which could not be true of unissued instruments. In the case of Bex v. Metcalf (1 Moody's Cr. Cas. 433), which arose under Stat. 7 and 8, Geo. IV., ch. 29, § 5 (which, in describing the instruments which are subjects of larceny, uses very nearly the same language as Stat. 2, George II.), it appeared that the prisoner, who was occasionally employed by the prosecutors, having received from them a check on their bankers, payable to a creditor for the purpose of giving it to the creditor, appropriated it to his own use, and it was held by the judges on a ease reserved to be a larceny of the check. The same "point was ruled in Beg. v. Heath (2 Moody’s Cr. Cas. 33).

The case of People v. Loomis was clearly not a case of larceny within the Be vised Statutes. It does not control the question now before us, which depends on the construction of the words “ money, funds, credits or property,” in the act of 1875.

We think the cases of People v. Wiley and Commonwealth v. Band (supra), support the conclusion we have reached on this branch of the case.

There was no error in admitting in evidence the affidavit of Bork, made in January, 1876. It tended strongly to establish his fraudulent purpose in directing the proceeds of the twelve bonds to be passed to the credit of Lyon & Co.

The point that the bonds were not averred in the indictment to have been held on behalf of “ any public or governmental interest,” is not tenable. The bonds of a city which can only be paid by taxation, if property in the corporation, under the statute of 1875, although unissued, as we have held, were public property, and were mainly held for a “ public or governmental interest,” whatever this' somewhat obscure language may mean, and it wTas not necessary to aver what is necessarily implied, in the description in the indictment. So also it was unnecessary that the indictment should allege that the bonds were negotiable. This was matter of description. The indictment alleges that the bonds were the property of the city, arid if the truth of this averment depended upon their negotiable or non-negotiable character, the question could be made on the trial, and could not be raised by demurrer, or on motion in arrest of judgment.

We find no error in the record, and the conviction should therefore be affirmed.

All concur, except Rapallo, J., absent.

Mem.—After the decision of the Court of Appeals affirming the judgment of affirmance in this case, a motion was made by defendant for a reargument on two grounds, which it was claimed had escaped the attention of the court on the appeal.

I. There is no evidence of a conversion of the bonds in the county of Erie.

II. The verdict is void for want of a finding by the jury of the value of the property converted.

This motion was denied by the Court of Appeals (March 6, 1883), the following opinion being written:

Per Curiam.

The question whether the verdict is defective is not presented by any exception, and cannot be considered upon this record. Whether a sentence can be imposed upon the verdict is a matter not now before us.

The other point, upon which a reargument is asked, also raises a question suggested for the first time on this motion. The answer is the same as to. the other point—that there is no exception which renders it available here.

The motion for re-argument will therefore be denied.