Thomas A. R. Webster, Plaintiff in Error, v. The People of the State of New York, Defendant in Error

Thomas A. R. Webster, Plaintiff in Error, v. The People of the State of New York, Defendant in Error. Upon a writ of error no exception 'lies to a refusal to postpone a criminal trial by reason of the absence of witnesses. An indictment for false pretenses averred in substance, that the accused having contracted to sell to B., the complainant, certain premises, fraudulently exhibited to B., who was illiterate and unable to read, a deed which he falsely represented to be a deed of the premises, when in fact the description covered other premises, etc. What purported to be a copy of the deed was set forth in the indictment. The deed offered in evidence on trial showed that in the copy in the indictment the easterly and westerly boundary lines were omitted. The copy, however, showed inferentially the length of these two lines. Held, that the variance was not material. The indictment did not allege that the deed was under seal. It was so stated, however, in the attesting clause, a copy of which was set forth. Held, this, with the averment that the instrument was a deed, amounted to a substantial averment that it was under seal. Where such an indictment sets forth various pretenses alleged to be false, if one or more are proved to be false, and are sufficient per se to constitute the offense, a conviction is proper, notwithstanding the failure of the prosecution to ppove the other alleged pretenses to be false. (Submitted May 2, 1883; decided May 11, 1883.) Error to the General Term of the Supreme Court, in the first judicial department, to review judgment, entered upon an order made November 24,1882, which affirmed a judgment of the Court of General Sessions in and for the county of New York, entered upon a verdict convicting the plaintiff in error of the crime of obtaining money by false pretenses. The indictment charged, in substance, that the accused, with intent to cheat and defraud one Breen, who was an illiterate man, unable to read writing, falsely represented that he owned four lots of land in the town of Brookhaven, north of the Long Island railroad, free and clear of incumbrances, and that a certain deed which he then and there exhibited was a deed and conveyance of said lots, that said Breen, believing the said representations and induced thereby, agreed to purchase said lots, and delivered to the accused $175 for the said conveyance, whereas in truth and in fact there was an incumbrance, by mortgage, upon the said lots, and the said deed did not convey and did not set forth or describe the same. What purported to be a copy of the deed was set forth in the indictment. The land was described therein as follows : “Beginning at a point in the east side of Coats avenue, distant two hundred and seventy-five feet south of the center of the Long Island railroad ; thence running easterly, parallel with the railroad, two hundred and eighteen feet, to the west side of Locust avenue, fifty feet; thence westerly, parallel with the south line, two hundred and eighteen feet, to the east side of Coats avenue, fifty feet to the point or place of beginning, making, as staked out, four lots of land each twenty-five feet front and rear, and one hundred and nine feet deep.” Upon moving the indictment for trial, a motion was made to adjourn because of the absence of a material witness, which motion was denied. When the deed was offered in evidence, it was objected to on the ground of variance between it and the one set forth in the indictment in that in the copy set forth no easterly and westerly boundary lines were given which were contained in the deed, also that the deed was under seal, which was not alleged in the indictment. Other facts are stated in the opinion. William F. Kirubzing for plaintiff in error. When an application for an adjournment is made in good faith and upon proper facts shown, and not for the purpose of delay, it is error at law to refuse same, and such refusal is reviewable. (B’klyn Oil Works v. Brown, 38 How. 451; Onderdonk v. Ranlet, 3 Hill, 323; Ogden v. Payne et al., 5 Cow. 15; Hooker v. Rogers, 6 id. 577; People v. Vermilyea, 7 id. 383 ; Pulver v. Hiserodt, 3 How. 49; 2 Tidd, 708; 1 Arch. 210; 1 Chitt. Cr. Law, 492; King v. D' Eon, 1 Bl. Rep. 510; 3 Burr. 1513.) The court erred in imposing the condition upon defendant that the testimony of the absent witness be taken upon interrogatories. (People v. Vermilyea, 7 Cow. 368; 1 Stark. Ev. 129-30.) The object of setting out an instrument in an indictment is to inform the accused of the offense of which he is charged, and must be an exact copy of the original instrument. The deed offered should have been excluded. (Kingsley v. People, 2 Cow. 522; People v. Shall, 9 id. 778 ; People v. Harrison, 8 Barb. 560.) Where a mortgagee assigns to the mortgagor and another there is a merger. (Beal v. Miller, 1 Hun, 390; Angel v. Boner, 38 Barb. 425.) The evidence was insufficient to justify the judge in submitting the question to the jury, and the court should have granted the motion of prisoner’s counsel and directed an acquittal. (Bennet v. People, 49 N. Y. 137.) Jolm Vincent for defendant in error. A motion for an adjournment is wholly addressed to the discretion of the court, and its refusal to grant the motion is not reviewable. (People v. Horton, 4 Park. Cr. 222; Eighmy v. People, 79 N. Y. 546.) The term “ deed,” used in the indictment, imports, per se, a seal, and it is unnecessary to allege, when that term is used, that the instrument is sealed. (Page v. People, 6 Park. Cr. 684.) The only object of setting out an instrument in an indictment is to inform the accused of the offense with which he is charged, and this is'answered, bven where the instrument is directly charged upon by describing it with sufficient definiteness to enable the defendant to identify it without setting it forth fully or exactly. (Tomlinson v. People, 5 Park. Cr. 313 ; People v. Holbrook, 13 Johns. 90 ; People v. Jackson, 8 Barb. 637.) The place where the money was obtained and the transaction completed determines the place of the commission of the offense and of the indictment therefor. (People v. Sully, 5 Park. Cr. 142,170.) Where several pretenses are alleged in an indictment it is sufficient to establish one to the satisfaction of the jury to sustain the indictment. (Wood v. People, 34 N. Y. 351; Bellschofsky v. People, 3 Hun, 40.) [MAJORITY — Miller, J.] Miller, J. Upon the application to postpone the trial of the indictment against the prisoner, there were circumstances to excite suspicion in the mind of the court that the application was not made in good faith. There had been a long delay, as appears from’ the facts, stated by the public prosecutor, which were not contradicted, and the proposition of the court to take the testimony of the absent witness at his residence was a fair one, and would have given the prisoner the benefit of the testimony and should have been acceded to by the prisoner’s counsel. Although it is always desirable that a witness should be present instead of his testimony being taken in writing, yet under the circumstances presented we do not think any just ground of complaint exists for refusing to postpone the trial on the ground of the absence or the inability to procure the person al attendance of the witness. It is enough to justify the condition imposed that the judge had reason to suspect the application was not made in good faith. It may be added that upon a writ of error no exception lies to a refusal to postpone a criminal trial by reason of the absence of witnesses. (Eighmy v. People, 79 N. Y. 546.) There was no error in admitting in evidence the deed offered by the prosecution. The objection is that the boundary lines easterly and westerly contained in the deed were left out of the indictment, and that there was no seal. The indictment, it is true, does not in terms allege that the deed was sealed. It is so stated, however, in the attesting clause of the deed as set forth in the indictment, and the allegation that it was a deed was a substantial averment that it was under seal. Such a conveyance imports a seal, and it may be assumed, therefore, that the deed set out in the indictment contained all that was required to constitute a valid conveyance. The omission of two of the boundary lines from the description in the deed set forth in the indictment did not constitute a material variation and was not important, inasmuch as the copy in the indictment shows inferentially that the northerly and southerly lines were fifty feet in length, and as the easterly and westerly points were correctly given the description was not radically deficient. The indictment stated that the lands had been staked out, and the length and breadth were given as stated in the deed itself. Ho mistake could have been made by the prisoner by reason of the omission, as the copy was in substance and effect the same as the one he had executed. It is claimed by the appellant’s counsel that the court erred in refusing to take the case from the jury. This position is based upon the ground that the evidence established the mortgage was assigned to the prisoner and his wife on the 23d day of October, 1872; that it was conceded the prisoner’s wife owned the fee of the land that was purchased at the time the representations were made; that the mortgage and fee in the land having merged the property was free and clear. Assuming the correctness of this position, we think there was sufficient evidence to authorize the court to submit the case to the jury. It was alleged in the indictment as one of the false representations made by the prisoner, to one John Breen, who was an illiterate person and unable to read writing, that he owned four lots of land north of the Long Island railroad, that a deed purporting to be executed by him and wife to the said Breen was a deed and conveyance of the said four lots, that the four lots were set forth and described therein, and that Breen, believing the representations and that the instrument was a conveyance of said four lots, and being deceived thereby, paid to the prisoner the sum of money mentioned in the indictment. The evidence shows that the witness was not able to read the deed and that the prisoner read it to him falsely, in that the property was situated one hundred and seventy-five feet north of the center of the Long Island railroad, and the prosecutor testified that he would not have paid the money if he had not believed the deed to contain a description of the property which had been exhibited to him by the prisoner as the property to be sold and which was situated on the north side of the railroad. There was proof to show the representations, in regard to the location of the property, were false, and that the allegation set forth in the indictment concerning the same was true. Where one or more pretenses are proved to be false, and the pretenses thus proved to be false are sufficient per se to constitute' the offense, the accused will be convicted notwithstanding that the public prosecutor fails in proving to be false other pretenses alleged in the indictment. (Butler v. Maynard, 11 Wend. 552; Bielschofsky v. People, 3 Hun, 40.) Whether the land was free and clear from all incumbrances was, therefore, of no consequence, if the intentional misreading of the deed induced the prosecutor to part with his money, and a case was made out independent of the false representations alleged to have been made in this respect. It follows that there was no error in refusing to take the case from the jury or in refusing to direct the acquittal of the prisoner. The judgment should be affirmed. All concur. Judgment affirmed.