This record contains no evidence upon which to rest a finding of conspiracy.
Previous to the incorporation of General Industrial Foundation, Dyche, White and Barnes had sought without success to interest Mrs. Patterson in the mine which was later taken over by General Industrial Foundation. Barnes was employed as salesman to secure subscriptions to the stock of the foundation in order to finance its activities. Barnes succeeded in interesting Mrs, Patterson in the *360stock of this corporation. He was of course anxious personally to succeed in so doing, and he admits he improperly withheld knowledge from Mrs. Patterson that the chief asset which the foundation then possessed was the gold mine in which Mrs. Patterson recently had declined to be interested. There is absolutely no evidence, however, of any knowledge on the part of the other defendants that such knowledge was withheld much less any agreement among the defendants that misrepresentations either affirmative or negative, should be employed for the purpose of securing the financial aid of Mrs. Patterson. Upon the contrary, the defendant Barnes, who confessed to being personally guilty and testified on behalf of the People to the fact that he concealed from Mrs. Patterson information that the Royal mine was the chief asset of foundation, expressly and specifically denied that there was any agreement among the defendants to defraud Mrs. Patterson. There is thus lacking not only any direct evidence of the gravamen of the crime of conspiracy to defraud, namely, the fact of a combination (People v. Suffolk Contracting Co., 171 App. Div. 645), but there is direct evidence to the contrary. It is not a case, therefore, where the conclusion of a corrupt agreement of conspiracy may be deduced from circumstantial evidence alone, since the inference of guilt of conspiracy does not exclude to a moral certainty the hypothesis of innocence. In other words, in view of the testimony of the People’s witness Barnes that there was no conspiracy, it is at least equally consistent with the hypothesis that the defendants conspired that only the defendant Barnes, in his personal desire to earn a commission and further his position with the corporation, deceived the complainant. Under such circumstances, a conviction of conspiracy to defraud cannot be sustained within the rule stated in People v. Razezicz, (206 N. Y. 249, 273), as follows: “ In a criminal case circumstantial evidence to justify the inference of guilt must exclude to a moral certainty every other reasonable hypothesis. Circumstantial evidence in a criminal case is of no value if the circumstances are consistent with either the hypothesis of innocence or the hypothesis of guilt; nor is it enough that the hypothesis of guilt will account for all the facts proven. Much less does it afford a just ground for conviction that unless a verdict of guilty is returned, the evidence in the case will leave the crime shrouded in mystery.”
In the case a,t bar the defendants, naturally, were interested in obtaining funds for the operations of the foundation. From that fact, however, does not flow exclusively the inference that they conspired to achieve that end fraudulently. Upon the contrary, it appears that the defendant Suffern long before knowing of Mrs. Patterson had projected the incorooration of the General Industrial *361Foundation, to be used as a medium for the organization of a group of distinguished and outstanding engineers and industrialists to be associated in working along engineering, mining and financial fines for the purpose of acting in a consulting and advisory capacity and also acquiring interests in such projects; and Barnes and he had attempted to interest people therein before either of them knew of Mrs. Patterson and before the incorporation of said foundation. The initial financing secured from Mrs. Patterson was expended upon a large number of engineering, mining and industrial projects, certain of which promised to be successful at the time this prosecution was instituted. There had also become associated with said foundation many leading industrial, mining and electrical engineers and experts. The defendants did not divert the money received, but appear in good faith to have used it for the purposes of the foundation. Moreover, the great weight of the evidence shows that the complainant was fully cognizant of the affairs of the General Industrial Foundation and of its interests in the Royal Gold Mine, and approved of its affairs following the delivery by her of the 600 shares of stock and up to the time that she lost confidence in the success of the enterprise. Assuming that the stock of the complainant was sold in violation of a parol agreement not to sell the same, these defendants, appellants, would then be liable for breach of contract; but this is a very different thing from sustaining an indictment charging a conspiracy to cheat and defraud the complainant out of her stock by specific false representations, none of which áre shown to have been made.
In addition, the court erred in a material matter when it instructed the jury that the complainant and the defendants had entered into an agreement of exchange of stock and that from such agreement a term might be implied which presupposed a representation that the value of the two stocks was equal. In the first place, this agreement did not provide for an exchange of ownership of the two stocks, but showed upon its face that all the parties contemplated was a loan of collateral for the purpose of raising funds in order that the General Industrial Foundation might be in corporate funds until such time as it had created a market for. its own stock and thereby might, with the funds so obtained from the sale of its own stock, repay loans to be obtained upon the collateral of the complainant. In addition and more important, there was no representation or even an agreement of equality between the two stocks. It is obvious that, even if there had been an exchange of ownership between the two stocks, no representation as to parity of values is thereby to be implied.
*362The court having dismissed the representation that a new Hotel Belmont was to be constructed, and there being no evidence of any representation, either express or implied, concerning the parity of values in the so-called exchange agreement, and no evidence of conspiracy, it follows that the judgment appealed from should be reversed and the indictments dismissed.
Judgment affirmed.