#### The People of the State of New York, Appellant, *v.*Nicholas Arnstein, Impleaded with Donald L. Persch and Others, Defendants.

First Department,

July 10, 1913.

Crime — grand larceny, first degree — Penal Law, section 1930, construed — obtaining money without the State on false pretenses made within the State — indictment, when not bad for duplicity — amendment of, at trial—demurrer—conspiracy, liability of party to.

Where false pretenses are made within this State upon which money or property is obtained without the State, an indictment for larceny will lie under subdivision 1 of section 1930 of the Penal Law, on the theory that part of the crime was committed within this State.

The provisions of section 1930 of the Penal Law are substantive law and were intended to be declaratory of crime.

An indictment which charges the defendant with the crime of grand larceny in the first degree only, and in describing the manner in which the crime was committed specified acts which might be deemed to set forth the crime of conspiracy, is not bad for duplicity, and a demurrer thereto should be overruled.

Where an indictment shows on its face that there is a mistake as to the statement of dates on which the defendants caused telegrams and letters containing false representations to be transmitted, the error may be corrected by an amendment on the trial.

Indictments charging that the defendants mailed letters in New York and sent telegrams from the same place, containing false representations upon which they obtained money without the State, examined, and *held,*sufficient, and that demurrers thereto should be disallowed.

*It seems,*that one who becomes a party to a conspiracy is responsible for what has been done before as well as for what is done thereafter.

Appeal by the plaintiff, The People of the State of New York, from a judgment and order of the Court of General Sessions of the Peace in and for the county of New York, entered upon the minutes of said court on the 14th day of October, 1912, allowing demurrers and amended demurrers interposed by the defendant Nicholas Arnstein to two indictments against him and others, charging the crime of grand larceny in the first degree.

*Robert S. Johnstone,*for the appellant.

*George Gordon Battle [Raymond H. Sarfaty*and *Isaac H. Levy*with him on the brief], for the respondent.

*767Laughlin, J.:

One of the indictments is for obtaining $25,000 from one Fairchild, and the other is for obtaining $15,000 from one Shinks. Each indictment contains two counts, one charging larceny by false pretenses, and the other as at common law. The theory upon which the demurrers were interposed is that the crime charged was not committed within the State of New Y ork, and the demurrer to the Shinks indictment is upon the further ground that the first count of that indictment purports to charge two crimes, viz., grand larceny in violation of section 1290 of the Penal Law, and conspiracy in violation of section 580, subdivision 4, of the Penal Law.

The demurrer to the Shinks indictment cannot be sustained on the theory that two crimes are charged. The charging clause of the first count of that indictment charges the defendants with the crime of grand larceny in the first degree only. In describing the manner in which the crime was committed, it is recited in that count that the defendants feloniously conspired for the purpose of cheating and defrauding Shinks, and it specified the acts which might, were it not for the fact that only grand larceny in the first degree was charged, be deemed to set forth the crime of conspiracy; but that did not render the indictment bad for duplicity. *(People*v. *Klipfel,*160 N. Y. 371.)

The money was actually obtained from Fairchild in the city of Philadelphia, Penn., and from Shinks in the city of Bridgeport, Conn. It is unnecessary to set forth separately the facts charged in each indictment, for the point of law presented by each is the same. It is whether, where the false pretenses are made within the State of New York, but the money or property is obtained thereby without the State, an indictment for larceny will lie here by virtue of the provisions of section 1930, subdivision 1, of the Penal Law, on the theory that part of the crime was committed within this State. The learned counsel for the respondent contends that the allegations contained in the first count of the Shinks indictment are not sufficient to charge his client with the false representations. His argument on this point is based upon the fact that the indictment charges' that the conspiracy was entered into by all of the defendants on the 19th day of August, 1911, and that pursuant *768thereto they committed an overt act in the county of New York by deliberating and planning the commission of the fraud in furtherance of the conspiracy and then charges certain of the defendants, not including the respondent, with having caused telegrams and letters containing false representations to be transmitted from the county of New York to Shinks at Springfield, Mass., on the 15th and 19th days of August, 1911, and he contends that, inasmuch as one of those dates was prior to the time the conspiracy was formed, the respondent is .not liable for the acts of the other defendants committed before he became a conspirator. If this were the true construction of the indictment, it is not entirely clear that it would avail the respondent, for there is respectable authority to the effect that one who becomes a party to a conspiracy is responsible for what has been done before as well as what is done thereafter on the theory that by joining the conspiracy in its design and purpose he adopts all acts which have been or thereafter are done in pursuance thereof (8 Cyc. 642; *People*v. *Mather,*4 Wend. 229, 261, 262; *Commonwealth*v. *Rogers,*181 Mass. 184); but this is not the true construction of the indictment, for, after first charging the conspiracy, it is alleged that *“*after-wards, to wit, between the fifteenth day of August, in the year aforesaid, and the nineteenth day of August, in the year aforesaid,” the letters and telegrams were sent. Thus the indictment, shows on its face that there is a mistake with respect to one or the other of the dates, but if necessary that error may be corrected by an amendment on the trial, as it is manifest that the respondent could not be misled thereby. *(People*v. *Willis,*34 App. Div. 203; affd., 158 N. Y. 392; *People ex rel. Meeker*v. *Baker,*142 App. Div. 598; *People*v. *Formosa,*131 N. Y. 478.)

We come now to the real question presented by the appeal. It is not contended that it was not competent for the Legislature to declare it to be larceny to make false representations here by which money is obtained without the State, and the validity of section 1930 of the Penal Law is not challenged. Since, therefore, the case depends upon the construction- of that section, all of its provisions should be considered. It is as follows:

> *769“Thefollowing persons are liable to punishment within the State:

> “1. A person who commits within the State any crime, in whole or in part;

> “2. A person who commits without the State any offense which, if committed within the State, would be larceny under the laws of the State, and is afterwards found, with any of the property stolen or feloniously appropriated within this State;

> “3. A person who, being without the State, causes, procures, aids, or abets another to commit a crime within the State;

> “4. A person who, being out of this State, abducts or kidnaps by force or fraud, any person contrary to the laws of the place where such act is committed, and brings, sends or conveys such person within the limits of this State, and is after-wards found therein;

> *“5.*A person who, being out of the State and with intent to cause within it a result contrary to the laws of this State does an act which in its natural and usual course results in an act or effect contrary to its laws.”

It is contended by the learned counsel for the respondent that this section is not substantive law, and does not declare any crime, but is declaratory merely of a common-law principle of local jurisdiction, with respect to crimes prescribed by the other provisions of the Penal Law, or other statutory enactments; and with respect to subdivision 1 of the section he contends, on the history of the statutory provisions embraced therein, that, in accordance with the common law, as declared in the case of *People*v. *Adams*(3 Den. 190; *Adams*v. People, 1 N. Y. 173), it was intended to apply only to crimes committed in this State by an innocent agent instigated from without the State.

The learned assistant district attorney takes the opposite view, and contends that this provision was designed to apply to the commission within the jurisdiction of this State of any essential part of a crime, as defined by the laws of this State, even though other parts of the crime were committed elsewhere and it was consummated without the State. We have considered the history of the statute and examined the authorities cited in support of the respective contentions, and are of *770opinion that this is substantive law, and was intended to be declaratory of crime. The phraseology of the provision so plainly indicates this that we do not deem it necessary to dwell on the origin and history of the statute, for, as the Court of Appeals wrote in *People*v. *Sherman*(133 N. Y. 349, 355), “It is of little utility to carry our inquiry back of the terms of the Penal Code when the offense charged and proved is clearly within it.” It is perfectly plain that if all the acts alleged to have been committed by the defendants in procuring the money had been committed within this State and the money had been received here, the crime of grand larceny under section 1290 of the Penal Law would be complete. One of the principal elements of that crime is the making of false representations to induce the owner to part with his property. *(People*v. *Peckens,*153 N. Y. 576; *People*v. *Dimick,*107 id. 13; *People*v. *Wicks,*11 App. Div. 539; affd., 154 N. Y. 766.) The letters having been mailed in New York, and the telegrams having been sent from New York, the false representations therein contained are deemed to have been made here. (12 Am. & Eng. Ency. of Law[2ded.], 848; *People*v. *Bihler,*154 App. Div. 618; *Reg.*v. *Holmes,*L. R. 12 Q. B. Div. 23; *Perkin’s Case,*2 Lewin C. C. 150; *People*v. *Summerfield,*48 Hisc. Rep. 242.) It is immaterial whether the consummation of the plan and conspiracy to defraud without the State constituted the crime of grand larceny in the foreign jurisdiction, for to hold that to be the test would be to impute to the Legislature an attempt to punish a violation of the statutory law of the foreign jurisdiction, which it could not constitutionally do. *(State*v. *Hall,*114 N. C. 909; *Huntington*v. *Attrill,*146 U. S. 657; *The Antelope,*10 Wheat. 66, 123.) It was unquestionably competent for the Legislature to declare such acts as those alleged to have been committed by the respondent and the other defendants within this State to be a crime, even though the conspiracy to obtain the money by fraudulent representations was consummated elsewhere; and the reasonable inference is that the Legislature intended to punish as a crime committed here the acts performed within the sovereignty of this State, as if all the steps resulting in the consummation of the plan and conspiracy in furtherance of which they were done had been taken here *771(See *People*v. *Sturdevant,*23 Wend. 418; *People v. Noelke,*94 N. Y. 137; *State*v. *White,*76 Kan. 654; 92 Pac. Rep. 829; *Worthington*v. *State,*58 Md. 403; *State*v. *Underwood,*49 Maine, 181; *People*v. *Staples,*91 Cal. 23; *Hemmaker*v. *State of Missouri,*12 Mo. 453; *Barclay*v. *United States,*11 Okla. 503; *Green*v. *State,*66 Ala. 40; *Commonwealth*v. *Macloon,*101 Mass. 1; 1 Bishop New Crim. Law, §§ 112, 136,140; Wharf. Confl. Laws [3d ed.], §§ 825a, 826); and on .that theory the Legislature evidently intended to declare such acts to be a crime, and to be punished as grand larceny. This is the construction placed upon that section by this court in *People*v. *Bihler (supra),*and it is the construction placed upon a like provision of the Penal Code of the State of California (§ 27, subd. 1) by the Supreme Court of that State. *(People*v. *Botkin,*132 Cal. 231.)

We are of opinion, therefore, that the indictments are sufficient and that the court erred in allowing the demurrers. It follows that the judgment and order should be reversed, and the demurrers disallowed.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Judgment and orders reversed and demurrers disallowed. Order to be settled on notice.