The People of the State of New York, Respondent, v. E. Upton Lovejoy, Appellant

The People of the State of New York, Respondent, v. E. Upton Lovejoy, Appellant. Indictment for grand larceny in stealing a check — sufficiency of — where a witness testifies to a deficiency in the defendant’s accounts, the account books should be put in evidence —proof of other similar acts as bearing on the question of intention. An indictment, for the crime of grand larceny, charging that the defendant, at a date and place named, “ with force and arms, one written instrument commonly called and designated a check or hill of exchange, which said written instrument was in words and figures as follows, to wit: “ ‘Elmira, N. Y„ Mar. 31, 1896, 189— No. 8294. “ ‘ Wm. 0. Wey, Prestí “ ‘Z. R. Brookway, Gen’l Sup’t. “ ‘ W. H. Peters, Treasurer of the Pew York State Reformatory. “ ‘ At the Second National Bank. “ ‘Pay to the order of 0. W. Nold, §39.57. Thirty-nine and 57-100 dollars. “‘No good unless countersigned by the General Superintendent State Reformatory. “ ‘ WM. C. WEY, President. “ ‘ Z. R. Brockway, Gen’l Sup’t. ‘ ‘ The same being then and there wholly unsatisfied, and of the value of thirty-nine dollars and fifty-seven cents, of the goods, chattels, moneys and personal property of William H. Peters, then and there being, feloniously, did steal, take and carry away against the form of the statute in such case made and provided,” is sufficient. On the trial of such an indictment an accountant, called by the prosecution, testified that he had made an examination of the books kept by the defendant, who had been employed as a clerk or bookkeeper at the New York State Reformatory at Elmira, covering the entire period that the defendant was there in charge of the cash books, and that, as a result of such examination, he found a deficiency of about $1,300. Seld,, that as the books were in the possession of the institution, the defendant was entitled to have them put in evidence. Semble, that it was competent for the prosecution to show, as bearing on the question of intention, that the act in question formed part of a series of similar occurrences within reasonable limits as to date. Appeal by the defendant, E. Upton Lovejoy, from a judgment of the County Court of Chemung county, rendered on the 7th day of July, 1898, upon the verdict of a jury convicting him of the crime of grand larceny in the second degree, with notice of an intention to bring up for review upon such appeal an order entered in the office of the clerk of the county of Chemung on the 4th day of April, 1898, overruling his demurrer to the indictment, and also an order entered in said clerk’s office on the 12th day of April, 1898, denying his motion to quash the indictment upon- the ground that the evidence given before the grand jury was insufficient and that incompetent evidence was given before the grand jury, and also an order bearing date on the 9th day of July, 1898, denying the defendant’s motion for a new trial. The indictment contains six counts. The first is as follows: “ The grand jury of the County of Chemung by this indictment accuse E. Upton Lovejoy of the crime of grand larceny in the second degree, committed as follows : The said E. Upton Lovejoy on or about the 31st day of March, 1896, at the city of Elmira, in this county, with force and arms, one written instrument commonly called and designated a check or bill of exchange, which said written instrument was in words and figures as follows, to wit: “ ‘ Elmira, N. Y., Mm\ 31, 1896, 189--No. 8294. “ Wm. 0. Wey, PresH. “ Z. R. Brookway, GenH SupH. “ ‘ W. H. Peters, Treasurer of the New Yorh State Reformatory. “ ‘ At the Second National Bank. “ ‘ Pay to the order of 0. W. Nold, $39.57. Thirty nine and 57-100 dollars'. “‘No good unless countersigned by the General Superintendent State Reformatory. “‘WM. 0. WEY, “ ‘Z. R. Brookway, GenH SupH. President.’ “ The same being then and there wholly unsatisfied, and of the value of thirty-nine dollars and fifty-seven cents, of the goods, chattels, moneys and personal property of William °H. Peters, then and there being, feloniously, did steal, take and carry away against the form of the statute in such case made and provided.” The second count is the same, except that it charges that the defendant was the bailee, servant, attorney, agent, clerk and trustee of Peters and as such had the custody and control of the check, which was further described as directing the payment of money, and that the defendant appropriated the same to his own use. The third and fourth counts are similar to the first and second, except that the ownership is alleged to be in William H. Peters, treasurer of the New York State Reformatory, and the defendant is alleged to have been bailee, etc., of said Peters, as treasurer. The fifth and sixth counts are similar to the first and second, except that the ownership is alleged to be that of the State of New York, and the defendant alleged to have been bailee, etc., of the State. The defendant interposed a demurrer which was overruled. Judson A. Gibson, for the appellant. Charles H. Knipp, District Attorney, for the respondent. [MAJORITY — Merwin, J.:] Merwin, J.: It is claimed on the part of the defendant that the indictment is. defective; that it does not contain a plain and concise statement of the acts constituting the crime, and that the facts set forth in the indictment do not state a crime. The indictment must contain “ a plain and concise statement of the act constituting the crime, without unnecessary repetition.” (Code Crim. Proc. § 275.) An indictment is not insufficient 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. (Code Crim. Proc. § 285.) The crime charged against the defendant is defined by section 528 of the Penal Code. Under that section the subject of larceny is “ any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession.” It is argued that the check or bill of exchange that the defendant is charged with stealing or appropriating to his own use is not sufficiently described. A copy of it is, however, set out and it purports to be a completed instrument. Its ownership and value are-alleged. It is described as a check or bill of exchange directing the payment of money and as wholly unsatisfied. If the allegations are true, it was certainly an article of value. It was personal property within the meaning of that term as used in the Penal Code. (§§ 528, 545, 718, subd. 15.) Whether it was in fact a valid check duly executed, and whether its ownership came from indorsement by C. W. Nold, or in some other way, were matters of proof. The general rule is that an indictment for a statutory offense, as the statute defines it, is sufficient. (Phelps v. People, 72 N. Y. 334.) It has been held that a check is sufficiently described in an indictment as a paper purporting to be a check for a certain sum of money, alleging its value and to whom it belongs. (State v. Pierson, 59 Iowa, 271. See, also, 12 Ency. PI. & Pr. 994, and cases cited.) The indictment is, I think, sufficient. In November, 1894, the defendant was employed as a clerk or bookkeeper at the New York State Reformatory at Elmira by the superintendent in charge thereof, and from August, 1895, to November, 1897, when he left, the moneys received at the institution passed through his hands. His duties required him to keep the books and. cash account, and he had charge of the hank deposits or checks. On the 31st of March, 1896, there was a man by the name of 0. W. Mold in the employ of the institution in its manufacturing department upon a salary of fifty dollars a month. In March, Mold bought goods of the institution to the amount of thirty-nine dollars and forty-seven cents, and the institution had rendered to him a bill for that amount. On the thirty-first of March, when the salary of Mold became due, the institution, in part payment thereof, gave to Mold the check in question and he thereupon indorsed and delivered it to the defendant as cashier of the institution in payment of the bill of goods. The institution in the conduct of its business kept two separate cash accounts, one of maintenance funds and the other of manufacturing funds, drawing checks on each account according to the nature of the transaction. If they paid a debt that they owed for manufacturing material, they paid it out of the manufacturing fund, and if they owed a debt for maintenance supplies it was paid out of the maintenance fund. The accounts were kept in the Second Mational Bank in the name of the treasurer of the reformatory. It was the duty of the defendant, when he received this check, to have deposited it in the bank to the credit of the proper account. Instead of doing that, he indorsed it and, as the evidence tended to show, appropriated it to his own use. It was presented at the bank and paid to other parties. The check represented so much money belonging to the institution, and its negotiation and misappropriation deprived the institution of that amount. In the course of the trial the prosecution called as a witness one Bush, an accountant, who testified that he made an examination of the books kept by the defendant, covering the entire period that the defendant was there in charge of the cash books. He was then asked to state the result of that examination. The objection was made on the part of the defendant that it was not the best way of proving it; that the books were the best evidence. The objection was overruled and the defendant excepted. The witness answered that he found a deficiency of about $1,300. We think that this exception was well taken. The books were in possession of the institution and the defendant was entitled to have them in evidence. (Brayton v. Sherman, 119 N. Y. 623 ; more fully reported in 28 N. Y. St. Repr. 854.) It was competent for the prosecution to show, on the question of intent, that the act in question formed part of a series of similar occurrences within reasonable limits as to date. (People v. Shulman, 80 N. Y. 373, note; Commonwealth v. Tuckerman, 10 Gray, 173.) The best evidence, however, should be given. We cannot say that the error in this respect was not prejudicial to the defendant, and, therefore, there should be a new trial. , All concurred. Judgment reversed and a new trial ordered.