New-York tribune., 1902-01-15
NO RETRlAL FOR MILLER.
COURT OF APPEALS UPHOLDS
LOWER COURT.
CALLS THE FRANKLIN SYNDICATE A
"TRANSPARENT TSWINDLE"-OPIN-
ION BY JUDGE OBRIEN.

Albany. Jan. 14.-The Court of Appeals has
reversed the order OF the Appellate Division Of
the Supreme Court, Second Department. grant
ing a new trial 10 Miller. of Franklin Syndicate
fame and has affirmed the judgment Of the trial
court convicting him OF larceny.
William F. Miller was convicted Of grand lar
ceny by jury in the Borough of Brooklyn. He
was charged with defrauding depositors who
placed their money in the Franklin Syndicate, of
which he the head and which agreed to
pay 520 per cent year all deposits. He
sentenced TO prison for ten years. The Appel
late Division granted trial. but the Court
OF Appeals holds that his first trial was a fair
one.
The opinion was written by Judge O'Brien. and
all concurred. The opinion says that the de-
fendant was convicted Of the crime of grand
larceny and sentenced to Imprisonment in the
State prison for ten years, but, upon appeal. the
court below has revised the judgment OF con-
viction and granted a new trial, and the people
have appealed to this court from that order.
The indictment charged the defendant with
grand larceny in two counts. The first count
charged the defendant with felonious appropria-
ton to his of $1,000 in money. This
charge was abandoned the trial. and no fur
ther reference need be made TO it.
The second count charged the defendant with
larceny in the common law from that on No
Eember 16, 1899. he did take $1,000 from one
Catherine. Moser- The defendant was charged
with the crime of which he convicted in
proper form. 1t is stated in the order appealed
from that the judgment reversed for errors
of law and not for errors on questions OF fact
and that the court had reviewed and considered
all the questions of fact in the case and found
error therein. This provision OF the order
means that the learned court below had ex-
arnined the evidence given at the trial TO prove
the various acts and dcings OF the defendant
which II is claimed constituted the crime
charged, and found that they were sufficiently
established. but reversed the Judgment ques-
a therefore
clear. We TO determine whether there is
any evidence in this record which could properly
have been submitted to the jury in support or
the charge Of larceny, and if so, whether there
are any exceptions 70 the rulings of the court
upon the trial which warranted the learned
court below in reversing the judgment. The
fundamental question in the case is whether the
proof given at the trial and embraced in the rec
ord before warranted the trial court IN
submitting the case to the jury The defend
ants counsel, at the close Of the evidence. re-
quested the court TO discharge the defendant and
dismiss the indictment upon the ground that no
proof had been given to sustain the charge OF a
common law larceny and his request was de-
MED and exception taken. The same point was
raised by other requests before the case was
finally submitted to the jury.
The evidence at the trial to prove the offence
charged took a wide range, and covered a broad
field Of inquiry, and although it related to only
about eight months OF the de1enaants career @
there is little, If any, dispute about the facts
They are stated very fully and fairly in the two
opinions rendered IN the court below (64 App,
Div 400. and, therefore, mere general outline
of the defendants transactions will be quite
sufficient here for all the purposes OF this appeal
The opinion then reviews Miller's history in
connection with the syndicate. and says the
whole project from beginning to end was a
transparent swindle," and continues:
The complainant in the at bar undoubt-
edly intended to part with the manual posses
sion Of the money, but even that purpose ana
intention on her part was the result OF trick
or fraudulent device on the part Of the defend
ant. Her consent to part with the manual pos
session of the money having been procured by
the defendants fraudulent device, II was IN law
no consent at all.
The evidence in the case really permitted but
one inference to the Defendants purpose, ana
that was that he intended TO appropriate the
intention is imputable to him must necessarily
have existed at the time that the money was
delivered TO him. The jury could not have found
upon the evidence that ne then received II inno-
Gently or rightfully, and that during the seven
or eight days that followed, preceding the col
lapse formed for the first time the intention or
converting II to his own There was moth
ing in the proof TO authorize the jury to find
that the intent TO steal was formed subsequent
10 the receipt of the money. Manifestly, he en-
tertained that purpose the time that the
tanned it Moreover, the exceptions referred to,
we think, come fairly within the scope Of Sec
tion $40 OF the Code Of Criminal Procedure,
which requires the court to give judgment with
out regard 10 technical errors or defects, or ex-
ceptions which do not affect the substantial
rights Of the parties. Our conclusion. there
fore is that the order Of the Appellate Division
should be reversed and the judgment OF conVic-
tion affirmed.