Dowling, J.:
In 1913 James E. Foye was a clerk employed in the transfer department of the Farmers’ Loan and Trust Company in the city of New York at a salary of $75 a month. He corresponded with Charles T. Brown of Philadelphia, who had advertised in the newspapers his ability to loan money, and inquired of the latter if he would loan $10,000 on Foye’s note for six months with Stock Exchange collateral. On receiving a reply in the affirmative, Foye, who had obtained possession of twenty-six blank certificates of stock of the General Electric Company through his position with the trust company, and which properly should have been in the custody of the latter, forged the signatures on such certificates, and one of these certificates purporting to show that he, Foye, was the owner of 100 shares of such stock, he sent to Brown at Philadelphia. Brown did not send the proceeds of this loan direct to Foye, but the transaction was handled in the following way: Brown collected the amount of the loan from the source from which he obtained it, and then had his own check for the amount of the loan certified and turned it into his bank in Philadelphia — in this case, the Corn Exchange National Bank of Philadelphia — and by his direction the Corn Exchange National Bank of Philadelphia sent a wire in code to the Seaboard National Bank of New York, confirmed by a letter bearing date the same day, October 23,1913, by which the Corn Exchange National Bank directed the Seaboard National Bank to deposit with the Columbia-Knickerbocker Trust Company for the use of James E. Foye $9,700, to be charged to the account of the Corn Exchange National Bank. The Sea[669]*669board National Bank thereupon drew its cashier’s check to the order of the Columbiar-Knickerbocker Trust Company, “ use of James E. Foye,” for the sum of $9,700, which check was paid through the Clearing House on October twenty-fourth. As the transaction had gone through safely, Foye on November eleventh and November fourteenth put through similar loans from Brown, one on 500 shares of General Electric, on which there was placed to his credit in the same way $48,437.50, and a further loan of $40,000 by which he was credited with the sum of $38,740. The method followed in each of these loans was the same as that used on the first loan, except that the second loan was handled by the Franklin National Bank of Philadelphia through its wire to the Mechanics and Metals National Bank of New York, which in turn sent its check to the Columbia-Knickerbocker Trust Company for the use of James E. Foye, and the check was paid in like manner through the Clearing House; and the third remittance was made through the Land Title and Trust Company of Philadelphia, which wired to the Seaboard National Bank of New York, which in turn turned over its check to the Columbia-Knickerbocker Trust Company for the use of James E. Foye, which check was in like manner paid through the Clearing House on the following day.
In none of these transactions did any cash pass between the parties, and the documents were the sole evidences or results of the dealings between them, the rest of the transactions being bookkeeping entries as the result of which a credit was opened for Foye in the Columbia-Knickerbocker Trust Company aggregating nearly $100,000. Foye thereafter drew against this account and on November 28, 1913, when an attachment was issued against his property, he had some $40,000 left therein. In the interim on November eighteenth Foye drew his check against this account for $25,000 and had the same cashed at the paying teller’s window. Of course, this cash was money which had been intermingled from various accounts and sources, so that there is neither proof nor claim that the money which was paid to Foye represented his own particular account or any other specific source in the bank. As matter of fact, Foye had never deposited any cash in the [670]*670trust company, nor had any cash been transmitted to it from Philadelphia or by the New York banks upon any one of the three loans; so that there is no contention that any specific money can be traced from the hands of either Brown or his principals into the hands of Foye.
Foye had known the relator about a year and the testimony clearly establishes the nature of their relationship as well as the fact that she had knowledge that he was engaged in some criminal operation by which he hoped to steal a lot of money. It does not appear that she knew anything of the details of the method by which Foye hoped to get this money, and the only think definite which he seems to have told her was that he expected to realize from $10,000 to $100,000 and that the money was to be obtained in Philadelphia. After Foye had put through the three loans he told the relator that he had given his wife $20,000 to protect her in case he was arrested, whereupon he says the relator suggested that he give her $20,000 also to protect her in case of his arrest, and that thereupon he agreed to give her $20,000 with which to open a bank account and later to invest it in stocks, and a further sum of $1,000 for expenses and clothing for her use on their prospective elopement to California. On November 18, 1913, after Foye had drawn the $25,000 from the trust company, he put $21,000 of the amount in an envelope and gave the money to the relator while- they were riding in a taxicab after having counted out the money for her. Relator deposited this sum in the Astor Trust Company and by various withdrawals finally closed the account May 19, 1915.
On November 25, 1913, Foye was arrested, extradited to Pennsylvania, and convicted of fraudulently making a written instrument in the Court of Quarter Sessions of the Peace for the county of Philadelphia, and on December 30, 1913, was sentenced to a term of five to ten years in the State Penitentiary for the Eastern District of Pennsylvania. The indictment charged the crime as having been committed in fraud of Charles T. Brown trading as Charles T. Brown & Co. This was the person with whom the transactions were had in Philadelphia. Foye was pardoned some three years later and called on relator’s husband and brother-in-law for the apparent purpose of getting back the $21,000 which he had [671]*671given to relator, and when he failed in so doing he called upon the complainant, who was a detective in the employ of the attorneys for Chandler Brothers & Co., Brown’s principals. The present prosecution is based on the complaint of Norman J. Fitzsimmons, the detective, who makes affidavit of Foye’s admissions to him that he feloniously si ole from Chandler Brothers & Co. the sum of $100,000 and that Foye had informed relator on some four dates specified that he had stolen said moneys from Chandler Brothers & Co., and that Foye had subsequently handed to relator the sum of $21,000 in currency, and that relator accepted the same, knowing the same to have been stolen, and that she opened an account with the money in her name in the Astor Trust Company and then and there converted the same to her own use and purposes, knowing the said bills and money to have been stolen. The only supporting affidavit is that of an employee of the Bankers Trust Company as to the relator’s account with that company.
The section of the Penal Law under which the complaint is made is 1308, formerly known as section 550 of the Penal Code, and reads as follows: “
Free access — add to your briefcase to read the full text and ask questions with AI
Dowling, J.:
In 1913 James E. Foye was a clerk employed in the transfer department of the Farmers’ Loan and Trust Company in the city of New York at a salary of $75 a month. He corresponded with Charles T. Brown of Philadelphia, who had advertised in the newspapers his ability to loan money, and inquired of the latter if he would loan $10,000 on Foye’s note for six months with Stock Exchange collateral. On receiving a reply in the affirmative, Foye, who had obtained possession of twenty-six blank certificates of stock of the General Electric Company through his position with the trust company, and which properly should have been in the custody of the latter, forged the signatures on such certificates, and one of these certificates purporting to show that he, Foye, was the owner of 100 shares of such stock, he sent to Brown at Philadelphia. Brown did not send the proceeds of this loan direct to Foye, but the transaction was handled in the following way: Brown collected the amount of the loan from the source from which he obtained it, and then had his own check for the amount of the loan certified and turned it into his bank in Philadelphia — in this case, the Corn Exchange National Bank of Philadelphia — and by his direction the Corn Exchange National Bank of Philadelphia sent a wire in code to the Seaboard National Bank of New York, confirmed by a letter bearing date the same day, October 23,1913, by which the Corn Exchange National Bank directed the Seaboard National Bank to deposit with the Columbia-Knickerbocker Trust Company for the use of James E. Foye $9,700, to be charged to the account of the Corn Exchange National Bank. The Sea[669]*669board National Bank thereupon drew its cashier’s check to the order of the Columbiar-Knickerbocker Trust Company, “ use of James E. Foye,” for the sum of $9,700, which check was paid through the Clearing House on October twenty-fourth. As the transaction had gone through safely, Foye on November eleventh and November fourteenth put through similar loans from Brown, one on 500 shares of General Electric, on which there was placed to his credit in the same way $48,437.50, and a further loan of $40,000 by which he was credited with the sum of $38,740. The method followed in each of these loans was the same as that used on the first loan, except that the second loan was handled by the Franklin National Bank of Philadelphia through its wire to the Mechanics and Metals National Bank of New York, which in turn sent its check to the Columbia-Knickerbocker Trust Company for the use of James E. Foye, and the check was paid in like manner through the Clearing House; and the third remittance was made through the Land Title and Trust Company of Philadelphia, which wired to the Seaboard National Bank of New York, which in turn turned over its check to the Columbia-Knickerbocker Trust Company for the use of James E. Foye, which check was in like manner paid through the Clearing House on the following day.
In none of these transactions did any cash pass between the parties, and the documents were the sole evidences or results of the dealings between them, the rest of the transactions being bookkeeping entries as the result of which a credit was opened for Foye in the Columbia-Knickerbocker Trust Company aggregating nearly $100,000. Foye thereafter drew against this account and on November 28, 1913, when an attachment was issued against his property, he had some $40,000 left therein. In the interim on November eighteenth Foye drew his check against this account for $25,000 and had the same cashed at the paying teller’s window. Of course, this cash was money which had been intermingled from various accounts and sources, so that there is neither proof nor claim that the money which was paid to Foye represented his own particular account or any other specific source in the bank. As matter of fact, Foye had never deposited any cash in the [670]*670trust company, nor had any cash been transmitted to it from Philadelphia or by the New York banks upon any one of the three loans; so that there is no contention that any specific money can be traced from the hands of either Brown or his principals into the hands of Foye.
Foye had known the relator about a year and the testimony clearly establishes the nature of their relationship as well as the fact that she had knowledge that he was engaged in some criminal operation by which he hoped to steal a lot of money. It does not appear that she knew anything of the details of the method by which Foye hoped to get this money, and the only think definite which he seems to have told her was that he expected to realize from $10,000 to $100,000 and that the money was to be obtained in Philadelphia. After Foye had put through the three loans he told the relator that he had given his wife $20,000 to protect her in case he was arrested, whereupon he says the relator suggested that he give her $20,000 also to protect her in case of his arrest, and that thereupon he agreed to give her $20,000 with which to open a bank account and later to invest it in stocks, and a further sum of $1,000 for expenses and clothing for her use on their prospective elopement to California. On November 18, 1913, after Foye had drawn the $25,000 from the trust company, he put $21,000 of the amount in an envelope and gave the money to the relator while- they were riding in a taxicab after having counted out the money for her. Relator deposited this sum in the Astor Trust Company and by various withdrawals finally closed the account May 19, 1915.
On November 25, 1913, Foye was arrested, extradited to Pennsylvania, and convicted of fraudulently making a written instrument in the Court of Quarter Sessions of the Peace for the county of Philadelphia, and on December 30, 1913, was sentenced to a term of five to ten years in the State Penitentiary for the Eastern District of Pennsylvania. The indictment charged the crime as having been committed in fraud of Charles T. Brown trading as Charles T. Brown & Co. This was the person with whom the transactions were had in Philadelphia. Foye was pardoned some three years later and called on relator’s husband and brother-in-law for the apparent purpose of getting back the $21,000 which he had [671]*671given to relator, and when he failed in so doing he called upon the complainant, who was a detective in the employ of the attorneys for Chandler Brothers & Co., Brown’s principals. The present prosecution is based on the complaint of Norman J. Fitzsimmons, the detective, who makes affidavit of Foye’s admissions to him that he feloniously si ole from Chandler Brothers & Co. the sum of $100,000 and that Foye had informed relator on some four dates specified that he had stolen said moneys from Chandler Brothers & Co., and that Foye had subsequently handed to relator the sum of $21,000 in currency, and that relator accepted the same, knowing the same to have been stolen, and that she opened an account with the money in her name in the Astor Trust Company and then and there converted the same to her own use and purposes, knowing the said bills and money to have been stolen. The only supporting affidavit is that of an employee of the Bankers Trust Company as to the relator’s account with that company.
The section of the Penal Law under which the complaint is made is 1308, formerly known as section 550 of the Penal Code, and reads as follows: “ A person, who buys or receives any stolen property, or any property which has been wrongfully appropriated in such a manner as to constitute larceny according to this article, knowing • the same to have been stolen or so dealt with, or who corruptly, for any money, property, reward, or promise or agreement for the same, conceals, withholds, or aids in concealing or withholding any property, knowing the same to have been stolen, or appropriated wrongfully in such a manner as to constitute larceny under the provisions of this article, if such misappropriation has been committed within the State, whether such property were so stolen or misappropriated within or without the State, * * * is guilty of criminally receiving such property.”
Under this statute there must be three concurring facts to constitute the crime: (1) The property must have been stolen by someone; (2) it must have been bought, received, concealed or withheld by a certain person; and (3) such person must have known that the property was stolen, and it must-be received by him with intent to deprive the true owner of the property. (People v. Hartwell, 166 N. Y. 361; People [672]*672v. Walker, 198 id. 329; People v. Acerno, 184 App. Div. 541, 542.)
The question which arises in this case is whether the relator received the identical property stolen. For the statute does-not cover the case of the receiving of other property into which stolen property has been converted, nor is. there any contention that such a crime ever existed at common law. The reasons which led lo declaring the receiving of the identical property stolen with guilty knowledge and with intent to deprive the true owner of his property, to be a crime are apparent. But these reasons do not apply to cases where the property stolen has lost its identity and no longer represents what the original owner had in his possession. The general proposition seems to be unquestioned as laid down in 34 Cyc. 517: “ The property received must be the identical property which was stolen, not something for which the stolen property was exchanged.” That this is the law in this State as well as in every other jurisdiction is clearly recognized in People v. Ammon (92 App. Div. 205; affd., without opinion, 179 N. Y. 540). In the opinion of the court, written by Mr. Justice Ingraham, the conviction of Ammon as a receiver of stolen property was held to have been proper because, although the actual cash, amounting to $30,500, had been turned over to the receiving teller of the bank by Miller to be counted, in the presence of himself and Ammon, the disposition of the money to be determined by Miller pending its counting, still Miller would have been entitled to receive back at any time before it was finally deposited by Ammon the identical money which was in the hands of the teller. The opinion holds that Miller never parted with title to the money until with his consent it was transferred to Ammon and by the latter deposited with the bankers. The court says (p. 209): “ When the defendant made out the deposit slip which placed this money to his credit, and that slip was received by the banking house with the money, whether it was in the defendant’s actual custody or not, he then received the money which, prior to that time, had been in possession of Miller, and appropriated it to his own use.” Furthermore, the court charged the jury in that case that it was necessary, before they could convict, to find “ that at the time the [673]*673defendant received the said sum of $30,500 he actually took it into his possession for the purpose of claiming ownership in the identical money which had been stolen by said Miller.” The Ammon case recognizes throughout the doctrine that the receiver cannot be convicted unless he has obtained possession of the identical property stolen. I find no later case which questions, overrules or distinguishes the law laid down in the Ammon case, and I think it is decisive of the question now before us. There never was any money which passed between Philadelphia and New York. The actual cash of Chandler Brothers & Co. or Brown never came into the possession of Foye. What Foye received was money taken from the general funds of the trust company and paid to him on account of the credit which had been opened for him as the result of the Philadelphia transactions. Thus, the money of the real complainants in this case, Chandler -Brothers & Co., whether in the shape of cash or check, was passed over to Brown, and then he deposited his own certified check with a Philadelphia bank, which bank merely notified a New York bank to send its check to the Columbia-Knickerbocker Trust Company to be there deposited to the account of Foye. These successive bookkeeping transactions, it seems to me, have entirely destroyed the identity of any property which originally belonged to Chandler Brothers & Co. What passed into the possession of Foye was something entirely different from what left the possession of Chandler Brothers & Co. It is as if Foye, having stolen an automobile in Philadelphia, had exchanged it for horses as he passed through New Jersey, and then again exchanged those horses for a diamond ring in New York, which he gave to the relator. I do not think it could be held, under the New York statute or any other which has been called to our attention, that relator would have been guilty of the crime of criminally receiving stolen property, even if she had known that Foye’s original taking of the automobile in Pennsylvania was felonious. If modern business methods require such an extension of criminal liability as will make persons guilty of criminally receiving stolen property who receive the proceeds of a thief’s operations, no matter how often the original stolen property has changed [674]*674its character on the way, then the remedy is by legislative act, and not by an extension of what seems to me the clear meaning and intent of the present act.
I favor the affirmance of the order appealed from.
Clarke, P. J., Smith and Page, JJ., concurred; Shearn, J., dissented.