This appeal has to do with a question of practice and pleading. The guilt of the defendant does not enter into it at all.
On the 12th day of March, 1926, Edward A. Noblett advertised in the New York daily papers that he would rent his apartment, 131 Riverside drive, by the month or year, furnished. The complainant, Stephen Bourne, *Page 366 answered the advertisement in person, and was told by the defendant that he had a two-year lease; that he would give him possession March 20 until June 1 for $510. The statements were false, as the defendant was a holdover tenant, with proceedings pending to dispossess him. The jury have found on competent evidence that his advertising was a mere trick and device for obtaining money; that he never intended to give possession of his apartment to Bourne; but at the time he took Bourne's money, he intended to steal it. After getting the money, the defendant refused to deliver possession of the apartment, and was found inserting like advertisements in the papers to catch other victims. We start the consideration of this case, therefore, with these facts: The defendant put a false advertisement in a newspaper, indicating that he would rent and deliver possession of his apartment; Bourne answered it, and paid $510 for possession from March 20; the defendant never intended to give possession of his apartment; he had no right to give possession of it, but he intended by this trick and by this device to get and steal the money. All these matters were fairly submitted to the jury on a charge of the court covering these points. None of the elements going to make up the crime of larceny were omitted in the trial of the case. The jury found against the defendant, and as there is evidence to support their conclusion, we in this court are bound by it. Therefore, I say we start with the crime of larceny, as defined by section 1290 of the Penal Law, proved against this defendant. The question is: "Did the indictment state the crime of which the defendant was convicted.'
All that we have in the Code of Criminal Procedure (Sect. 275) regarding the indictment is:
"The indictment must contain:
"1. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; *Page 367
"2. A plain and concise statement of the act constituting the crime, without unnecessary repetition."
All this the indictment in this case contained. The plea in this court is that the defendant, although guilty, was tried on the wrong count. In brief, the indictment consisted of two counts. The first accused the defendant of grand larceny in the second degree as a second offense, in that on the 13th of March, 1926, he obtained money from Stephen Bourne by means of false and fraudulent representations, in that he represented that he owned a lease of apartment 12C at premises 121 Riverside drive, New York county, with two years to run; all of which was false, and by means of which he got $510 from Bourne. The second count accuses the defendant of grand larceny as a second offender, in that on the day aforesaid, he did steal, take and carry away from Stephen Bourne personal property of the value of $510. The defendant was indicted as a second offender because he has been twice before convicted of larceny.
The first count is commonly known as obtaining money by false pretenses; the second is known as common-law larceny. Both are now included in the one provision of section 1290 of the Penal Law, defining larceny. No distinction whatever is now made in the definition of larceny between the common-law larceny and larceny by false pretenses and representations. There is a distinction which has grown up out of the cases, purely artificial, regarding the pleading. If a man is to be prosecuted for obtaining money by false pretenses, the pretenses must be set forth in the indictment provided, and provided only, that title has passed to him accompanying possession. If, on the other hand, he obtains by the same false pretenses merely the possession of the property, title remaining in the owner, it is a common-law larceny, and the false pretenses and representations need not be alleged in the indictment. That is, the same false representations may constitute larceny at common law, or the obtaining *Page 368 of property by false pretenses; in the first case the representations need not be alleged in the indictment; in the second, they must be. The determining factor on this question of pleading is the passing of title, not the representations.
Here we have inserted into our criminal practice upon a mere question of pleading all the uncertainties of the Uniform Sales Act, regarding the right to bring action for price, or an action for damage upon breach of contract. And this is no exaggeration, for the very situation confronted the trial judge and district attorney in this case. After a colloquy lasting over many pages in the record, the judge dismissed the first count and forced the district attorney to proceed on the second count, saying:
"The case will be submitted to the jury on the theory of common law larceny by trick and device * * * the testimony has been to the effect that he (Bourne) gave this money intending that he get possession of the premises. The jury may determine whether or not when he gave him the money he parted with title and possession, or whether he parted only with possession."
This ruling came at the end of the People's case; all the evidence was in. Surely it cannot be said that there was no evidence to sustain a finding that a larceny of some kind had been committed, either larceny by false representations or else common-law larceny. All the evidence for the People was before the court and jury. Which was it? The indictment covered both, and was broad enough and full enough to sustain a verdict upon one theory or the other. All the evidence going to show false representations need not be alleged in the indictment.
The same false statements proved either larceny by false representations or else larceny at common law by trick and device. The deciding point, as heretofore stated, would be the passing of title. To sustain the second count, it would be necessary to show that title did not pass with possession. The trial proceeded upon *Page 369 this second count. And now in the judgment of some of my associates this was fatal; title had passed and there was no common-law larceny. To me, this is a highly technical rule of pleading which need not be applied to this case. It serves here no use whatever. It is not an answer to say that the defendant should be informed of the false pretenses charged against him; he is not so informed when the false pretenses obtain possession but no title. The passing of title is not something which we can see and handle; it exists merely in the intention of the parties.
Now this old rule of pleading has been repeatedly criticised, and the courts have endeavored to get away from it. Under the old Revised Statutes (2 Rev. Stat. part 4, chap. 1, art. 4th [year 1828]), cheats, or obtaining property by false pretenses was made a crime in a separate article (Sect. 53) for which a distinct punishment was enacted. Article 5th provided for another crime, which was larceny and embezzlement, and different punishment. Section 63 thereof enacted that feloniously taking and carrying away the personal property of another was larceny. This was the old common-law larceny. From these separate divisions of crime, grew up the practice of pleading the false representations in the first case, and omitting them in the second. This division was continued in the Revised Statutes of 1875. (See art. 4th and art. 5th of part IV, chap. 1 of the Rev. St. vol. 3, 6th ed.) The Penal Code, in section 528, and now the Penal Law, in section 1290, combined both offenses into one with one punishment, to be known as larceny. For myself, I can see no reason why there should be any distinction in pleading; but the courts have made this distinction, calling attention to the fact that the crimes frequently merge into one; that the same false pretenses may make the crime of obtaining money by false pretenses or the common-law larceny; that the distinction between them is often shadowy. Thus, in People v. Dumar (106 N.Y. 502), DANFORTH, J., said:
"In either case the property may have been obtained *Page 370 by artifice or fraud; but if in one the owner intended to part with his property absolutely and to convey it to the defendant, but in the other intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not. It was, therefore, uniformly held that if a person, through the fraudulent representations of another, delivered to him a chattel intending to pass the property in it, the latter could not be indicted for larceny but only for obtaining the chattel under false pretenses."
And the judge added:
"The distinction was adhered to, although with reluctance, and in deference only to earlier cases."
This Dumar case also held that if the crime be that of obtaining property by false pretenses, the false pretenses must be set forth in the indictment. So too, People v. Blanchard (90 N.Y. 314). In Loomis v. People (67 N.Y. 322, 329) this court said:
"There is, to be sure, a narrow margin between a case of larceny and one where the property has been obtained by false pretences. The distinction is a very nice one, but still very important. The character of the crime depends upon theintention of the parties, and that intention determines the nature of the offence. In the former case, where by fraud, conspiracy or artifice, the possession is obtained with a felonious design, and the title still remains in the owner, larceny is established. While in the latter, where title, as well as possession, is absolutely parted with, the crime is false pretences. It will be observed that the intention of the owner to part with his property is the gist and essence of the offence of larceny, and the vital point upon which the crime hinges, and is to be determined." And the court further said that the intention was a question for the jury. See, also, Bassett v.Spofford, regarding intention (45 N.Y. 387, 392); Thorne v.Turck, again calling attention to this "nice *Page 371 distinction" (94 N.Y. 90); Smith v. People (53 N.Y. 111), where it was said: "Here the jury have found the intent to steal at the time of taking, which is all that is required to constitute larceny, where the mere possession is obtained by fraud or trick."
In Commonwealth v. Rubin (164 Mass. 453) it was held that a chattel accepted upon a contract or promise with intent not to carry out the promise, but to convert the chattel, amounts to larceny as it existed at common law. Mr. Justice HOLMES said: "There is the less cause for anxiety upon the point, in view of the merely technical distinction between larceny and embezzlement." And in this court in People v. Miller (169 N.Y. 339) it was held that obtaining possession of property upon a promise to do something did not constitute obtaining it under false pretenses, but did constitute larceny at common law; that such promise was a mere trick and device to get possession of property. This was the case of 500 per cent Miller, who got money on representations that he would pay enormous rates of interest. The money given to him was not to be held in kind; the title to the particular bills or specie invested passed to Miller. He promised to pay big interest for the money, or the use of the money. The money was used by him; it was stolen, and this court held it to be common-law larceny. Judge O'BRIEN said:
"It would be difficult to show that the defendant in this case made any material false statement concerning any existing fact. His statements were all promissory in nature and character. He represented to the public very little if anything concerning any fact existing at the time. His statements consisted in persuading the depositors that he could and would obtain for the use of their money large profits in the form of dividends."
Miller in this case was convicted under the same form of indictment as the second count of the indictment upon which the defendant has been convicted here. Continuing, the opinion stated: *Page 372
"But the jury could have found that he did obtain the money by means of a fraudulent device, with the intent on his part at the time he received it to convert it to his own use; and also that the complainant intended to part with her possession merely and not with the title, and so the verdict convicting the defendant of larceny was warranted by the evidence."
The case against this defendant in my judgment comes within these rulings. The jury have found that Bourne did not intend to part with his money except upon a condition unfulfilled. When Stephen Bourne gave $510 to the defendant, it was with the understanding that he should receive possession of the apartment March 20. The defendant obtained the money by promising to give possession March 20. It was a false promise, made with intent to cheat. The jury have found that he never intended to keep the promise; that it was a mere device to obtain the money, and that Bourne did not intend to part with the title to his property, that is, give it to the defendant so as to make it his, except upon condition that he received the apartment. Under a fair charge explaining all these differences, of which we have been speaking, the jury have found the fact of intent, both of Bourne and of the defendant. Suppose that the defendant had held in his hand a diamond, and said to Bourne: "Give me $510 and I will give you this diamond." Upon getting the money, he runs away and refuses to give the diamond. Would there be any question as to larceny; that it was common-law larceny, obtaining money by trick, device and false pretense? Why then should there be any difference because the promise is made to take effect a day or a week after the receipt of the money instead of instantly, provided that at the time the promise is made, and the money obtained, there is the intent to steal, no intent to keep the promise, no intent to part with the money, except upon fulfillment of the condition. To my mind, we are refining this matter of pleading beyond all *Page 373 usefulness. The defendant well knew what he was being tried for; no claim whatever was made that he was surprised or deceived; he himself testified and produced evidence to meet the charge and no assertion is even made by his counsel that he has any other proof to offer. At most, he pleads a technical rule of law as to a pleading which in his case has no merit. He obtained $510 by a trick advertisement, and a promise to give that which he did not have. This in my opinion constitutes a common-law larceny.
For these reasons, I believe the judgment of conviction should be affirmed.
CARDOZO, Ch. J., POUND and KELLOGG, JJ., concur with LEHMAN, J.; CRANE, J., dissents in opinion in which ANDREWS, J., concurs.
Judgment accordingly.