People v. Wheeler

66 A.D. 187, 16 N.Y. Crim. 206, 73 N.Y.S. 130

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1901
• Status: Published

Opinion

Adams, P. J.:

The learned counsel for the appellant in his elaborate brief. and •argument directs attention to certain alleged defects in the indictment upon which the defendant was tried, and insists that by reason of the serious nature' of such defects the demurrer to the indictment should have been allowed. These defects are, in substance :

(1) That the indictment does not charge that the representations that Harris was the owner of the Hague street lots were made or communicated to the complainant Kitts ;

(2) That the representation of ownership in Harris was not negatived in the indictment by pleading a title in any other person or by the statement of any facts impeaching the title of Harris ;

(3) That inasmuch as it is stated in the indictment that a deed was made to Harris to give him “ a paper title or a record title to enable . him to sell,” this fact alleged upon the face of the indictment.could not be contradicted in it, and if the statement that he was not “ the true and actual owner ” is a contradiction, it is repugnant to and destroyed the principal allegation of the indictment;

(4) That the indictment being based upon the charge of a representation of ownership in Harris and a reliance upon such representation by Kitts, it should have been followed by an allegation of a purchase from or a deed by Harris or an agreement to deed and a failure of title, by which the false representations could be madé effectual in the attempt to defraud ;

(5) That the indictment contains no denial that Harris could and did give title, save that it alleges that Harris was not “ the true and actual owner; ” and

(6) That the indictment does not allege that the defendant obtained or received the money stolen, either from Kitts or Harris, to whom Kitts paid it, and omits to charge that Harris was in any way the agent of the defendant in receiving the money or that the defendant directed Harris to receive it.

These several grounds of demurrer are supported by ah extended discussion which we do not deem it necessary to analyze, inasmuch as all of the defects specifically pointed out are equally subject to existing rules prescribing what an indictment shall contain and how the allegations shall be stated.

Under our present system of criminal practice all hitherto existing forms'of pleading" in criminal actions are expressly abolished, and the forms as well as the rules by which the sufficiency of such pleadings is. to be determined are those prescribed by the Code. (Code Crim. Proc. § 273.)

Section 275 provides that the indictment shall contain “ a plain and concise statement of the act constituting the crime without unnecessary repetition.”

Subdivision 7 of section 284- declares that the indictment is sufficient if it can be understood therefrom “ that the act or omission, charged as the crime, is stated with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case.”

Section 285 provides that “ no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of an imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant,, upon the merits.”

While section 684, which is even more comprehensive than any of the sections heretofore cited, declares that “ neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right.”

It is quite likely that under the stringent and technical rules of the common law, which existed prior to. the adoption of the Code of Criminal Procedure, some of the counsel’s criticisms of the indictment in this case would have possessed much force) but when tested by the more liberal system of pleading which now obtains, ‘ they do not seem to require much consideration, for they all relate to imperfections of form or mode of expression, which to .no appreciable extent tend to the prejudice of the substantial rights of the defendant upon the merits.

It is plainly to be seen by even a mere casual reading of the indictment with what crime the defendant stands charged, and substantially all the essential elements of that crime are set forth with .sufficient clearness to apprise him of the proofs which he must be prepared to meet upon the trial. .

Perhaps the sixth ground of demurrer affords as fair an example as any of the character of the defendant’s criticism and of the importance which should be attached to it in view of existing rules. It is there said that the indictment is bad because it does not allege that the defendant obtained or received the stolen money either from Kitts or from Harris, and because it fails to charge that Harris was in any way the agent of the defendant in receiving such money. How, literally that is true, but it will be observed that after setting forth the stealing of the $800, and the manner in which such stealing, was accomplished by Harris, the-indictment concludes with this allegation, viz., “ that the words, pretenses, statements of the said James A. Harris were done and spoken at the instance and request of the said Wesley Wheeler and this, we think, is equivalent to saying that in all that was done, including the receiving of the stolen money, Harris acted as the agent of the defendant. Indeed, it would be difficult, if not impossible, to give to the language of the indictment, as a whole, any other construction.

But without dwelling at greater length upon this branch of the defendant’s case, it is sufficient to say that the view which we have here expressed as to the liberal construction which should be given to pleadings in criminal actions is but a reflex of that which has been repeatedly asserted by the Court of appeals since the present system of procedure was established. (People v. Peckens, 153 N. Y. 576; People v. Helmer, 154 id. 600; People v. Willis, 158 id. 396; People v. Lammerts, 164 id. 137.)

We, therefore, pass on to the consideration of the question raised by the counsel’s second point, and the one upon which, as he frankly admits, he bases his main reliance for a reversal of the judgment. As introductory,, however, to the consideration of that question, it is important that some of the facts of the case, as established by the verdict of the jury, should be adverted to.

It seems that the defendant owned a double house and lot situate upon. Leopold street in the city of Rochester, which he desired to dispose of, and to that end he directed Albert P. Wicks, whom the indictment charges with being a co-conspirator of the defendant, to look up some property and he, the defendant, would fix up some deals, and show him how to trade. In pursuance of these, instructions Wicks saw the complainant Kitts, and learned from him that he would sell his Hague street lots for $2,800, and that if he could obtain $500 in cash he would accept a mortgage for the balance. These facts were communicated by Wicks to Wheeler, whereupon the latter declared, “I will put up a three-cornered deal; will show you a three-cornered deal; ” , and upon Wicks saying that he never saw such a deal, Wheeler replied, “I will show you one this time.” . It appears that the title to the Leopold street property was in one Edith L. Johnston, who figures quite conspicuously in the defendant’s real estate transactions, and in order to induce Kitts to make some sort of a trade for that property Wheeler called to his assistance Ella H. Clements, who presumably is one of the “ divers other persons ” referred to in the indictment, and directed her to dress herself in such manner that she would look “ nice and act like a wealthy woman,” and to that end wear some diamonds which were furnished by him, and then to represent to' Kitts, with a view to negotiating a trade with him, that she wished- to purchase this Leopold street property for $6,000, and that she would be able to pay for it as soon as she could realize upon a mortgage of $3,200 which she held. Captain Kitts protested that he simply wished to sell his four lots and that he did not desire to purchase the Leopold street property* but his objections were overcome, and the defendant caused a deed thereof to be made from Mrs. Johnston to Kitts, and from Kitts to Ella H. Clements. In the latter deed Kitts assumed two mortgages upon the property of $1,500 each, the second one being held by Wheeler’s wife, Mrs. Clements giving back. a third . mortgage of $2,500 upon the same property. The defendant also had prepared two deeds of the Hague street lots from Kitts to Edith L. Johnston, one of which contained restrictions requiring the purchaser to use the lots for residential purposes only, and the other containing no restrictions whatever. These papers were given to Wicks with instructions by Wheeler, as the former testified, to show Kitts the deed containing the restrictions, and before proceeding to execute the same to substitute the deed without, restrictions.. All of which was done, and Kitts actually signed the deed containing no restrictions. ■

At this point James A. Harris becomes an important factor in the scheme and in all subsequent proceedings relating thereto. In obedience to instructions from the defendant, he appeared upon the Hague street property one morning with a squad of men proclaiming himself to be the owner of the lots, and declaring his intention of laying out and erecting a soap factory thereon. Inasmuch as Kitts was the owner of a handsome residence- located in front of these lots and had, as he believed, protected himself from any such nuisance by a restrictive clause in his deed, he naturally resented the intrusion upon his supposed rights and protested that the soap factory should not be built. Here, again Wicks comes into prominence, ostensibly as the friend of Kitts, and after a pretended investigation informs the latter that he has discovered that Harris has taken all the lots from Edith L. Johnston; that he had put a mortgage of $1,800 on the same; that he was going to erect a soap factory thereon; that there were no restrictions in the‘deed, and that the best thing he (Kitts) could do would be to buy Harris out, and after some preliminary negotiations Kitts did buy back his property, paying therefor $800 in cash, and assuming the mortgage of $1,800, whereupon Harris, and his men retired from the field, and' the $800, which is the money referred to in the indictment, was taken by Harris and delivered to the defendant.. Harris testified, that he was employed by Wheeler to perform his part of the transaction ; that he received for his services the sum of $25 and his expenses,.and that as matter of fact.there was no intention' on the part of any one to carry into execution the threatened erection of a soap factory upon the premises. At the time Harris made the representations which, it is claimed, induced Kitts to retake the title to the Hague street property upon the terms and conditions hereinbefore mentioned, it is contended that he did not own the .premises, but that the title was in Mrs. Johnston, who was at that time, out of the State. It seems, however, that Mrs. Johnston had left with the defendant some blank deeds with her signature attached, and that Upon the morning of the day when the larceny is alleged to have been'-committed one of these blanks was filled out, in which Harris’ name was inserted as grantee, and at the same time a mortgage from Harris to Mrs. Johnston was also drawn up, which was executed by Harris after being assured by the defendant that it would make him no trouble; and these instruments were recorded in.the clerk’s office of Monroe county shortly after nine o’clock on the morning of November tenth. Another deed from Harris to Kitts was also drawn up after Wheeler had been informed that the scheme had progressed to a point where Kitts had expressed a willingness to pay the $800, and this deed was taken by Harris and delivered to Kitts at the time the money was actually paid.

The foregoing resume of the essential features of the case, compiled as it is from over 1,000 pages of the printed record, is necessarily somewhat fragmentary ; but it is. sufficient, we think, to justify the conclusion that if the facts stated are true they furnished the jury with ample reason for rendering a verdict which,- in effect, found .the -defendant guilty of the crime charged in the: indictment, provided it. was established to their satisfaction that the representations made by Harris to Kitts were false in .respect of Harris’ ownership of the. Hague street property.' And thus we come to what the trial court obviously regarded as the crucial question in the case,-and the one -which gives rise to the. claim of counsel which we are about to consider.'

The evidence in the case leaves it by no means certain when Harris became possessed of the title to this property, if ever. We have seen that a deed was made out which purported to run from Edith L. Johnston to him, and which was left at the clerk’s office for record early in the morning of November tenth; that this deed was drawn upon a form 'which had been signed by Mrs. Johnston in blank; that it purported to have been acknowledged by her- before Charles O. Peckens on the seventh day of November, at which time Mrs. Johnston was in the State of Massachusetts; and that the deed was not in fact delivered to Harris before he made the alleged false representations and .obtained from Kitts an agreement to purchase.

It was claimed that Peckens held a power of attorney from Mrs. Johnston, which not only authorized him to fill out the deed signed by her, but also to execute and deliver the same. This power of attorney was riot produced upon the trial, but it was, nevertheless, left to the jury to say whether the deed to Harris was executed in pursuance thereof, and if so, whether it was deposited at the clerk’s office with the intention that it should be regarded as thereby irrevocably delivered to Harris, the grantee named therein, and the jury were instructed over and over again by the learned trial judge that if they should find that the' deed was legally executed and delivered on the morning of November tenth they must acquit the defendant, inasmuch as in that event there was no evidence of false and fraudulent representations of ownership, and consequently no proof of the one essential element of the crime charged.

In this connection it may be well to note that Harris had no knowledge of the execution of the deed from Mrs. Johnston to him, or that the same had been left for record at the clerk’s office until after he had induced Kitts to repurchase the Hague street property. On the contrary, he sought the interview with Kitts and made the assertion of ownership and of his intention to erect a soap factory, without any idea that either was true, and in reliance upon the assurance of the defendant that he would put the title in his (Harris’) name if he made the deal work. Indeed, it may be fairly assumed from the evidence before us that Harris did not at any time regard himself as the owner of the premises, for he testified : “ I never owned them (meaning the Hague street lots), or pretended to own them only to old man Kitts.” ' And there is some evidence tending quite strongly to show that notwithstanding all that had "been done towards perfecting the title, it was not the intention of Wheeler that such title should actually vest- in Harris, .unless the deal between him and Kitts was fully consummated, and this presented one of the questions of fact with which the jury had to deal.

The learned trial judge, after instructing the jury respecting the various matters submitted to their consideration, in a charge which was exceptionally clear and intelligible, summarized the entire case in the following language, viz.: “ Let me recapitulate the propositions of law affecting Harris’ title. He got no title if - the deed to him was not delivered, and that is true whether a power of attorney , was in existence or not; no matter how much authority or how little authority Mrs. Johnston conferred upon Peckens or Wheeler; no matter whether the transfer to Harris' was within the scope of authority which she had given them or not, whether that authority was evidenced by writing or only given by word of mouth.

“ If there was no delivery of that deed to Harris he. got no title. If there was a delivery of that deed he got no title if no' written power of attorney was in existence, and if the deed was filled out and used for a purpose not authorized by her, but if a power of attorney actually existed, broad enough in its terms to permit Peck-ens to convey on her behalf property that thereafter might be put in her name, and if in addition thereto that deed from Mrs. Johnston to Harris was in fact delivered, if it was a final and unconditional and irrevocable delivery, then you must acquit the defendant, because he became, under that, the owner of the lots, and had a title which he could convey. * * *

“ If you find that he did not get any ownership, and that he was not the owner of these lots until the instant that Kitts passed the money and got his deed.; that the pretense that he had a right to erect a soap factory or to sell the lots just as' he chose was a false statement, then it becomes necessary for you .to determine whether that can be laid at the door of Wesley Wheeler.”

Subsequently, and at the conclusion of the principal charge, the court was requested by the defendant’s counsel to instruct the jury • that “if at the time Harris received the eight hundred dollars mentioned in the indictment, Harris’ representation that he ■ was the owner .was made good' by what your honor characterizes as the instantaneous perfection of the delivery of the deed at that time, the defendant cannot be convicted.”

This request was refused, to which ruling an exception was taken, and this exception fairly raises the point relied upon by the learned counsel. The theory upon which this feature of the case is pressed upon our notice is that, however false the representations of ownership by Harris may have been at the time they were made, if they became in fact true before Kitts parted with his $800, they could not be made the basis of a conviction under the indictment.

It is doubtless true, and the jury were virtually so instructed, that if Kitts had been negotiating for the purchase of the Hague street property merely for the purpose of acquiring the title thereto as an investment, or because he desired' it for some particular purpose, a false statement as to ownership would have worked no prejudice to him provided such statement was made good before the title actually passed. But it is hardly necessary to suggest that such is not the case here. Mr. Kitts was not seeking to retake the title to the lots in question because he desired them, but rather because he regarded Harris’ ownership and his consequent right to erect on the premises such obnoxious structures as he might see fit, as a menace to his peace and comfort, and in this view the truth of the declarations made as to ownership was a matter of the utmost importance to him. Had he known that Harris’ assertion of ownership was false, that he really had no right to erect a soap factory on the premises, and that.his apparent right to do so had not been conferred by the real owner, he might have refused to purchase or to negotiate further therefor. But however this may be, the fact remains that the representation which probably operated more strongly than any other to induce Kitts to part with his money, was false if Harris was not actually clothed with the attributes of ownership; and it will hardly do to say that because it was made true at the very moment when the agreement was consummated its viciousness and injurious effect were cured. In our opinion, it would be a gross perversion of justice to hold that a person who had induced another to expend large sums of money in payment for property which he did not want, but which he had purchased in reliance upon the false representations of the seller that he was the owner thereof, and as such intended putting it to a use which would prove hurtful and annoying to the purchaser; should be permitted to escape all responsibility for his fraud by subsequently acquiring title to the property sold..

In support of such a proposition the learned counsel cites with especial emphasis the cases of Matter of Snyder (17 Kan. 542) and. Scott v. People (62 Barb. 62). The former case, as we understand it, -furnishes an apt illustration Of the very distinction which we have endeavored to make plain in this case. There a party was.negotiating for the purchase of some cattle, property which he desired to purchase, and in reliance upon the assurance of Snyder that “ he •had bought the pick of a large' lot of cattle, about one hundred, head,” the purchase was consummated, and it turned out that when Snyder made the representation which induced the purchase it was false; but before- the consideration was actually paid it had become true; and in these circumstances it was held that the pretense, although false when made, was not within the statute. In the second case cited the rule was declared to be “ perfectly well settled that the pretense alleged to be false must. have(.formed some part of the inducement to the doing of the act, and must be of Some existing fact and made for the purpose of inducing the prosecutor to part with his property, or to- do the act.”

Assuming for the moment that Harris did not own the title to the Hague street property until his agreement with Kitts was aboqt being consummated, and this case, as submitted to the jury, falls within, both the spirit and the letter of the rule' thus declared, for Harris’ assertion of ownership was the statement of an existing fact, . upon which Kitts testified that he relied in making the purchase, and there is no room for doubt that such statement was made for the express purpose of inducing Kitts to part with his money. Indeed, when tested by this rule, there seems to be no occasion for further argument to sustain the proposition that the learned trial court committed no error in refusing to charge in accordance with the request of defendant’s counsel.

We have examined the other exceptions set forth and commented •upon in the brief of counsel without discovering any which present prejudicial error, and we have consequently reached the conclusion that the judgment and orders appealed from should .be affirmed. . The. order denying the defendant’s, motion for leave to inspect the minutes of the grand jury is affirmed, without any special consideration by reason of the fact that counsel in his argument and brief makes no point of the appeal from that order.

All concurred.

Judgment, conviction and orders affirmed, and case remitted to the County Court, pursuant to section 547, Code of Criminal Procedure.