Supreme Court—General Term—-Fifth Department.

*October,*1886.

#### PEOPLE v. DUMAR.

Larceny—Indictment.

An indictment for larceny in the common law form which charges the taking to be unlawfully and feloniously contrary to the form of the statute in such case made and provided and charging that the defendant did steal, take and carry away etc., sufficiently charges the crime of larceny under section 528 of the Penal Code, and admits proof of fraudulent representations or pretenses.

To render a person guilty of larceny by false representations as to the ability to pay of a third person such representations need not be in writing.

Appeals by defendant Alexander Dumar from a judgment of the Court of Sessions of Monroe County convicting him of grand larceny in the second degree.

The facts appear sufficient in the opinion.

P. *Chamberlain, Jr.,*for defendant appellant.

*Joseph W. Taylor,*district attorney, for the people, respondents.

Haight, J.

The indictment charges that the defendant, on the 3rd day of February, in the year of our Lord, 1885, at the city of Rochester, in the county of Monroe, a quantity of carpets, rugs and hassocks, particularly describing them, of the value of $671, of the goods, chattels and personal property of Thos. F. Carter, then and there being found, unlawfully and feloniously did steal, take and carry away contrary to the form of the statute in such case made and provided, and against the peace of the people of the state of Hew York, and their dignity. Upon the trial the district attorney gave evidence tending to show that the defendant purchased of Carter the goods in question, giving therefor his promissory notes endorsed by one Louis Hensler ; that to induce Carter to sell him the goods, he produced an affidavit from Hensler showing that he was the owner of a farm *56consisting of thirty-three acres, situated in the town of Little Valley, in the county of Cattaraugus, free and clear from all incumbrances and liens, of the value of $3,000; and another farm of twenty-eight acres, situate in the town of Barre, Orleans county, of the value of $2,500, upon which there was a purchase money mortgage of $900, and that the total of his liabilities did not exceed the sum of sixty-five dollars over and above the $900 mortgage; that this affidavit was false and was known by the defendant to be false at the time that he presented the same to Carter to induce him to sell the goods upon credit. The defendant objected to the evidence tending to show false representations as to Hensler’s responsibility, and at the conclusion of the people’s evidence asked to have the defendant discharged upon the ground of variance between the proof and the indictment. This was denied and exception taken.

The question thus presented is not free from difficulty. The indictment as we have seen is in the form approved and usually adopted for the crime of larceny under the Revised Statutes.

Under the Penal Code the crime of larceny has been enlarged so as to embrace the crimes formerly known as false pretense and embezzlement, and is defined as follows :

“ A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or any other person, either, first, takes from the possession of a true owner, or of any other person ; or obtains from such possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing; or secretes, withholds or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt, or contract, or articles of value of any kind; or second, having in his possession, custody or control as a bailee, servant, attorney, agent, clerk, trustee, or officer, of any person, association or corporation, or as a public officer, or as a person authorized by agreement, or by competent authority to *57hold or take such possession, custody or control, any money, property, evidence of debt, or contract or article of any nature, or thing in action, or possession, appropriates the same to his own use, or that of any other person other than the true owner, or person entitled to the benefit thereof; steals such property and is guilty of larceny.” Penal Code, § 528.

Section 275 of the Code of Criminal Procedure, provides that the indictment must contain a plain and concise statement of the act constituting the crime, without unnecessary repetition.

It will be observed that under section 528 of the Penal Code, there must be an intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or any other person. The indictment charges—the talcing to be unlawfully and feloniously, contrary to the form of statute in such case made and provided, etc. The word “ feloniously ” means criminal intent, which used in connection with the words “ unlawfully, contrary to the form of the statute in such case made and provided,” is a sufficient description of the act to satisfy this provision of the section. Sub-division one of the section embraces the taking of money, personal property, etc., from the possession of the true owner, or of any other person, or obtaining from such possession by color or aid of fraudulent or false representations or pretense ; in other words, it covers larceny under the Revised Statutes, and the obtaining of money or property by false pretense. Where it is by fraudulent or false representations or pretense, the person charged must take or obtain the money, personal property, etc., from the possession of the true owner, or of any other person, by color or aid of fraudulent or false representation or pretense. He must either take or obtain the possession, and where it is so taken or obtained, it is defined by the statute to be stealing.. Whilst the indictment does not charge the fraudulent or false representations, it does charge that the defendant did steal, take and carry away, etc. In other words, it charges the act, but does not describe the means by which the act was-accomplished.

*58A similar question has been considered by the courts in reference to indictments charging the crime of murder. Under the statute, murder may be committed in three ways :

*First.*By a deliberate or premeditated design to effect the death of the person killed.

*Second.*By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual.

*Third.*When perpetrated by a person engaged in the commission of a felony.

In the case of *Fitzgerrold*v. *People*(37 N. Y., 413-426), Woodruff, J., after referring to the cases, says : “ The result of these cases most clearly is that the crime of murder is sufficiently charged, when alleged in the present indictment, with malice aforethought; but in order to prove the crime the proofs must establish a case within the requirements of the statute in one of its three subdivisions, and the party indicted is entitled to proper instructions to the jury as to what facts must be found to sustain the indictment.”

In the case of *Cox*v. *People*(80 N. Y., 514) the indictment contained the common law count, charging a felonious killing, with malice aforethought, with other averments necessary in a common law indictment for murder. It was claimed that there could be no conviction of murder in the first degree under the act making a killing murder when perpetrated by a person engaged in the commission of a felony. Andrews, J., in delivering the opinion of the court, says: “ It has been settled by a series of adjudications, commencing with the case of *People*v. *Enoch*(13 Wend., 159) that the specification in the statute of the cases which shall be deemed murder in the first degree, and the introduction of new definitions or divisions, does not necessarily require a change in the form of indictment, and that a conviction under a common law indictment of murder in the first degree may be had in any case where the offense proved is brought within either of the statutory definitions.”

*59In the case of *People*v. *Conroy*(97 N. Y., 62) the second count of the indictment was in the common law form, charging that the defendant committed the crime feloniously, willfully and with malice aforethought. Ruges, Ch. J., in delivering the opinion of the court, says : “ This count seems to contain all of the allegations necessary to describe the crime of murder in the first degree, as defined in the Penal Code. * * * It has never been required under the strictest and most technical rules of pleading that the particular intent with which the homicide was committed should be set forth in the indictment, but it has been uniformly deemed sufficient to allege it to have been done feloniously, with malice aforethought, contrary to the form of the statute. The question as to whether the crime was committed under such circumstances with reference to an intent as makes it murder in'the first degree within the statutory definition, has been held under several changes of the statute defining that crime to be one of evidence determinable by the jury under the instruction of the court,” citing with approval the remarks of Woodkuff, J., in the case of *Fitzgerrold*v. People, *supra.*

In the case of *Phelps*v. *People*(72 N. Y., 350) it was held a sufficient averment of the crime of larceny to follow the precise words of the statute.

In the case of *People*v. *Willett*(4 N. Y., Crim. 200) the court of appeals held that the ordinary common law count in an indictment for murder is, notwithstanding the numerous statutory enactments, sufficient to sustain a conviction where the murder was perpetrated while engaged, in the commission of a felony. Finch, J., in delivering the opinion of the court, in spealdng upon the subject of an indictment for larceny, says : “ That section 528 of the Penal Code defines, with considerable detail, what acts shall constitute larceny and what intent shall characterize the crime, and in the end provides that he who with such intent does any such acts, steals any such property, is guilty, of larceny. The word *‘*steal ’ is thus defined by the statute itself as covering all the prescribed details, and its use in the indictment which charges the talc*60ing to have been felonious or with a criminal intent, sufficiently includes the particular intent needed to constitute a larceny.”"

In Virginia, the statute makes the obtaining of money or other property by any false pretense, larceny. In that state, the courts hold that an indictment for the offense may be either in the form of indictment for larceny at common law, or by charging the specific facts, which the act declares shall be deemed larceny. *Leftwich*v. Commonwealth, 20 Gratt, 716 ; *Dowdy*v. Commonwealth, 9 Id., 727, 734.

These authorities appear to sustain the respondent’s position, and incline us to hold that the indictment is sufficient, and that there was no variance between the proof and the charge.

The case of *People*v. *Moore*(37 Hun, 84; 3 N. Y. Crim., 458.), has no application, for no such question was involved in the appeal or considered by the court.

We are aware that in California a different rule has been established. *People*v. Jersey, 18 Cal., 337; *People*v. *Poggi,*Id., 600; *People*v. *Miller,*12 Id., 291. But under the authorities of our own state, we think these cases cannot be followed.

Again, it is contended by the appellant that there were no written representations made as to the ability of the defendant Dumar to pay for the goods purchased by him as required by section 544 of the Penal Code. The false representations and pretense complained of did not relate to Dumar’s ability to pay, but did relate to Hensler’s ability to pay. His representations were in writing and in the form of an affidavit, subscribed by himself. The false representations and pretense of the defendant Dumar consisted in the presenting of this affidavit to Carter, knowing it to be false, and in statements made to Carter in reference to Hensler’s ability to pay. His false representations did not relate to the ability of himself to pay, and consequently were not within the provisions of section 544 of the Code. Numerous exceptions were aken upon the trial to the admission and rejection of evidenced *61to the charge and the refusals to charge, but none which we consider it necessary to here discuss.

The judgment and conviction should be affirmed.

Smith P. J., Barker and Bradley, JJ., concur.