Patterson v. People

19 N.Y. Sup. Ct. 137

• Court: New York Supreme Court
• Decided: October 15, 1877
• Status: Published

Opinion

Merwin, J.:

Tbe indictment charged that on tbe 18tb November, 1813, Patterson was a private banker doing business under tbe name of tbe George Washington Bank, and as such private banker, bad received divers moneys on deposit, which be, as such banker, undertook and agreed to pay on demand to tbe depositors at bis banking office at Corning; that at tbe said date and place be made divers false representations to Peter Golgan, with intent to cheat and defraud him ; in substance, that be as such banker and said bank were solvent and bad sufficient available assets to pay all deposits. Prom tbe evidence given on tbe part of the people, it appeared that the title of tbe bank was tbe “Geo. Washington Bank,” and at tbe close of tbe people’s case, tbe defendant below asked tbe court to quash tbe indictment upon the ground of misnomer, being tbe variance between tbe name of tbe bank as alleged and proved. This request was denied and exception taken. It will be observed that this name is not that of a corporation, but Simply a name used by Pattern n in Ms business, and is descriptive thereof. It is not the name of a legal entity. This name was not in issue — did not go to the merits of the offense.

The Revised Statutes provide that no indictment shall be deemed invalid or the trial affected by any misstatement of the defendant’s title, occupation, estate, or degree, when the defendant shall not be misled or prejudiced by such misstatement, or by reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant. (2 R. S., 728, § 52.)

The misstatement in question would seem covered by this statute. But, aside from that, is it a material variance to use the abbreviation “ Geo.” instead of the full word “ George ? ” It is a common and well-understood abbreviation. There may be cases where it would be a question of fact for the jury to say whether the meaning was the same, but this is not such a case, nor did the defendant ask to leave it to the jury. In Lewis v. Few (5 Johns., 1, 28), wdiere the allegation was “ U. States,” and the proof “ United States,” the variance was held to be immaterial. In United States v. Hinman (1 Baldwin, 292) the indictment charged a forgery of an order on "the cashier of the corporation of the president and directors of the Bank of the United States,” and the order in evidence was drawn on “ the cashier of the Bank of the United States; ” held, not fatal. The order was alleged to have been signed " Jno. Ilulse,” and that in evidence was signed “ Jna. Ilulse; ” held, matter for the jury to say whether the same person was meant. (See People v. Runkel, 9 Johns., 156; also State v. Kean, 10 N. H., 347; 1 Archbold’s Cr. Pl. and Pr. [8th ed.], 242, 375, and notes.) The refusal to quash the indictment was not error.

Upon the trial a witness, Hutchins, testified on behalf of the people that Patterson told him he was worth $150,000 ; that he had taken care of his friends before the assignment, and tried 'to sell him land so as to protect Mm. Patterson, as a witness on his own behalf, denied these statements, and was then asked whether Hutchins had made threats against Mm, to which evidence the counsel for the people objected.

Defendant’s counsel then offered to show that the evidence of Hutchins was an after-thought on his part, and that he had threatened to give such evidence unless Patterson would pay him, he being a depositor. The court sustained the objection and defendant excepted.

The ground of the objection or ruling was not stated. The proof offered was not of an affirmative character, but went to the credit of Hutchins. Hutchins had testified to what was material on the question of intent. It was, therefore, proper to attack his credit in this way. (1 Greenl. Ev., § 450 ; Newton v. Harris, 2 Seld., 345.)

It does not appear that he had been previously interrogated as to these matters. This should have been done. (Starkie on Ev., 242; Lee v. Chadsey, 3 Abb. Ct. App. Decisions, 47.) This objection was not, however, specifically taken. If taken, it might have been obviated by recalling Hutchins. Not being taken, it should be considered waived. (McDonald v. North, 47 Barb., 530; Levin v. Russell, 42 N. Y., 255.) Objections to testimony, without assigning any ground therefor, will be disregarded, unless it clearly appears that the objection, if properly-made, would have been decisive of the case and could not have been obviated. I think, therefore, this evidence was improperly excluded. Having reached this conclusion, it will not be necessary to consider the other exceptions.

Judgment should be reversed, and case remitted to the Sessions for new trial.

Present — Talcott, P. J., Smith and Merwin, JJ

Judgment and conviction reversed, and proceedings remitted to Steuben Sessions for new trial.