The People of the State of New York, Respondent, v. William T. Huggins, Appellant

The People of the State of New York, Respondent, v. William T. Huggins, Appellant. Third Department, January 8, 1906. Criminal law—obtaining money on fraudulent draft—Penal Code, section 528, construed — jurisdiction of Court of Special Sessions. The' defendant obtained a check on the promise to deliver immediately his own check for the amount, but failed to do so for several days, when he made payment of a balance due by the delivery of his own check with a statement that the same was good and that he had plenty of money in the bank. Such statements were false. Held, that the defendant was properly convicted of obtaining money by fraudulent draft under section 529 of the Penal Code; That said section, ,malting a person so obtaining money “ guilty of stealing the same and punishable accordingly,” read in connection with section 528 of the Penal Code, defining larceny, makes such act a crime; That a Court of Special Sessions had jurisdiction of such crime; That, as defendant had appeared, pleaded not guilty, had a trial and been convicted, it was too late to raise a formal objection to the information or the warrant; That, under the circumstances, no credit had been given to the defendant. Appeal by the defendant, William T. Huggins, from a judgment of the County Court of Delaware county in favor' of the plaintiff, entered in the office of the clerk of said county on the 17th day of August, 1905, affirming a judgment of conviction rendered by a justice of the peace át a Court of Special Sessions. The information charged the defendant with committing the ' crime of obtaining the sum of fifteen dollars by means of a fraudulent check or draft, by felonibusly, wrongfully, unlawfully, willfully, corruptly, falsely, maliciously and knowingly representing the check or draft as good when he had no funds in the bank to pay the same. The deposition of the 'complainant recites the facts and charges.the defendant with knowingly and unlawfully violating section 529 of the Penal Code,, in that he unlawfully obtained from - him by means of a false check (describing it) the sum of’ fifteen dollars. The warrant issued upon this information and deposition charged the defendant with the crime of obtaining the money by' fraudulent' draft or check. The defendant, was arraigned, plead not guilty, had a jury trial and was convicted. The record of conviction recites the defendant as charged with the crime of obtain- ' ing money under false pretenses, in violation of section 529 of the Penal Code, and adjudged that the defendant be imprisoned thirty days in 'the county jail and pay a fine of twenty-five dollars. The evidence showed that on December 3, 1904, the defendant asked the complainant to cash a check for him, saying that Peter Mitchell had refused to accept the check, and lie had some" trouble with him, and that he had plenty of money in the bank and the check was good. The complainant obtained for him a check of twenty-five dollars, and the defendant took it and said that Mitchell was waiting for him, and as soon as he could hand the money to Mitchell he would return and hand the complainant the check. He did not return arid was not seen until. the fifth of December, when complainant demanded the check, and he gave the complainant' ten " dollars, but said he had not his. check book with him and would give him the check the next. morning. The next mor ti ing he gaye, the corhplainant his check for fifteen dollars, and stated that the check was good and that he .had plenty of money in the bank. C. R. O'Connor, for the appellant. Alexander. Neish, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: The appellant contends that there is no such crime as obtaining money by fraudulent draft or by false representations; that even if there is such á crime it is not one of the. offenses of which, by section 56 of the Code of Criminal Procedure, a Court of Special Sessions has jurisdiction, arid that,, therefore, the conviction is void, and cites People v. Jeffery (38 N. Y. St. Repr. 313). The provisions of the Penal Code are not quite clear upon this subject, but when carefully considered, in view of the provisions of section 684 of the Code of Criminal Procedure, which provides, “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 Ms prejudice in respect to a substantial right,” and section 11 of the Penal Code, which provides, “ The rule that a penal statute is to be strictly construed does not apply to this Code or any of the provisions thereof, but all such provisions must be construed according to, the fair import of their terms, to promote justice and effect the objects of the law,” it will be seen that the conviction is fairly within the provisions of the statute and should be sustained. Section 528 of the Penal Code-defines the crime of larceny, and in its terms is probably broad enough to cover the offense of the defendant. Section 529 of the Penal Code has the caption, “ Obtaining money or property by fraudulent draft,” and provides that a party so doing is “ guilty of stealing the same and punishable accordingly.” Section 528 provides that the person guilty of the acts stated therein steals (such property) and is guilty of larceny. It is not strictly accurate, therefore, to say that the Penal Code does not recognize the obtaining of money by a fraudulent draft as a crime. It does not say in so many words that such-act is larceny, but brands it as stealing. And when it says it shall be punished accordingly, it fairly refers back to the preceding section which declares that where a person obtains property by means therein mentioned, such person steals the property and is guilty of larceny. -It is not, therefore, a radical departure from the Penal Code to describe the acts of the defendant in this case as obtaining money by a fraudulent draft. Neither is it a departure, to prosecute him in the same manner that he would be prosecuted if the crime, strictly speaking, were larceny. The Jeffery case does not refer in any manner to section 529 of the Penal Code. That case arose upon a motion to dismiss _an indictment charging false representations, and it was held that the acts complained of were defined by section 528 of the Penal Code as larceny. Here, the act done by the defendant is made a crime under another section, the caption of which is “ Obtaining money or property by .fraudulent draft,” and when a deposition upon which a warrant is issued refers to that section, the defendant, has ample and precise , information as to just what the particular offense charged against him is, and has more accurate information than if- the crime was defined to-be larceny. ' The Jeffery case is, therefore, not an author- . ity for the defendant in this case. And, while it .might have been better practice, to declare the crime in this case as larceny, the defendant is not prejudiced by a reference to the section,, the describing the act as( obtaining money by fraudulent draft and a prosecution of the charge as larceny. It is punishable-in the same manner as larceny, and when the crime of petit larceny is made punishable by a Court of Special Sessions, that court clearly has cognizance of the offense here charged. Where the indictment charged the offense of selling liquor without a license, instead of selling withgut having paid the tax and having the certificate therefor, the conviction was sustained by this court, (People v. Seeley, 105 App. Div. 149 ; 93 N. Y. Supp. 982.) After the defendant has appeared, plead not guilty, had a trial before a jury and been convicted, it is too late for him to raise a formal objection to the complaint or the warrant. (People v. Shaver, 37 App. Div. 21.) There never was in this case any intent to give the defendant credit for- the twenty-five dollars. ,fle leddhe complainant to believe that he had the. check with him-ready to hand over, and the fact that as soón as lie received the. money or check from the complainant he left, saying he would return at once and hand over the check, and then absented himself for several days; does not amount to an extension of credit, and when he later handed over- tlie check it had the same force and effect as though it had been handed over .at the time he agreed to and the complainant supposed he was to hand it Over. The whole transaction was one act, and the whole act constituted the crime charged. A careful examination of the rulings complained of by the defendant shows that no error was committed to his prejudice which calls for a reversal of the conviction. The crime was sufficiently charged and sufficiently proven, and the description of the crime, under, the eir-' cumstances shown, is sufficient to sustain the judgment. The judgment of the County Court, is, therefore^' affirmed. All concurred. Judgment affirmed.