People v. Pollock

4 N.Y.S. 297, 58 N.Y. Sup. Ct. 613, 22 N.Y. St. Rep. 64, 51 Hun 613, 1889 N.Y. Misc. LEXIS 291

• Court: New York Supreme Court
• Decided: February 11, 1889
• Status: Published

Opinion

Pratt, J.

The statute (section 528, Pen. Code) under which the defendant was indicted and convicted provides that any person who, with the “intent to deprive or defraud the true owner of his property or of the use and benefit thereof, * * * or appropriates to his own use any money,. * * * is guilty of larceny, ” changes the law as it formerly existed in that it makes what was formerly embezzlement and obtaining of money or goods under false pretenses larceny, but it has not changed the methods of proof of these respective offenses. It simply classes these respective offenses as larceny, and requires the same proof of criminal intent to make out a case as was required before the Penal Code was passed. The section, it will be observed, begins with the statement that “a person who, with the intent to deprive or defraud the true owner of his property,” etc., does the acts specified, shall be-guilty of larceny. To constitute guilt, there must be evidence of intent to-deprive or defraud the owner, and the jury must find such criminal intent as a fact upon the evidence before a conviction can be had. The jury had a clear right to pass directly upon the question of intent, and by taking that question from the jury we think the court committed an error. It appears-that the defendant was a banker, and the complainant had long been his customer, and knew that the money was on deposit for his credit, and it became-important to determine whether the relation at the time of the failure of the defendant’s firm was that of agent or debtor; it was certainly competent upon the question of intent to show and permit the jury to know all the surrounding circumstances of the case. That part of the charge which referred towliat was termed the “Tweed Statute” also was calculated to prejudice the case for defendant. It is true that the evidence is sufficient to sustain the verdict if the jury disbelieved the defendant and believed the evidence of Hamilton, but the defendant was entitled to have the issue of an intent directly passed upon by the jury. It was not conclusive evidence, under all the circumstances, to show that defendant merely mixed the money with his own funds; but it was incumbent on the people to satisfy the jury that it was so-mixed with the intent, or was at some time used with intent, to deprive the owner thereof. We also think the charge was erroneous upon the question relating to the good character of the defendant. Such evidence is competent to be submitted to a jury for the purpose of raising doubt. It is not essential that a case must be doubtful before such evidence can be considered. Upon the whole case we think there were errors which worked to the prejudice of the defendant sufficient to warrant a reversal of the judgment, and the ordering of a new trial. All concur.