People v. . Baker

Earl, J.

The defendant was tried and convicted in the Eensselaer County Sessions for obtaining of William H. Meeker, on March 30, 1876, the sum of $575 by false pretenses. The conviction was affirmed at the General Term of the Supreme Court, and then he appealed to this court. The facts of the case may be summarized as follows: In and prior to March, 1873, Meeker was a Methodist minister and the defendant was a reputable citizen of Schaghticoke, a merchant of considerable means, reputed to be wealthy and in business affairs skillful and sagacious. They were intimate friends, and there existed intimate social relations between their families. Meeker became aware that the defendant dealt somewhat in stocks, and that he had been successful in making in that way some money for himself and others; and having about ten thousand dollars invested in small sums in various ways, he conceived the idea of operating in stocks through the defendant, mainly for a more profitable and less troublesome investment of his means. The.defendant consented to act for him as his friend, and without compensation. It was finally agreed that the defendant was, through his brókers, to buy for Meeker, one hundred shares of New York Central Railroad stock, upon a margin of $2,000, and carry the stock through his brokers for him until he could pay for the same. - After the payment of the first $2,000, as fast as Meeker could gather in his money, he was to pay it to the defendant, and he was to pay it to the brokers, or use it in his business, allowing interest on the same, or in speculating in other stocks for Meeker, the profits of which were ultimately to be used in paying for the New York Central stock, which Meeker desired to hold as an investment. On March 28, 1873, the defendant wrote Meeker a letter which acknowledged the receipt of a sum of money to be used as a margin for the purchase of the stock, and after giving some facts and opinions about stocks, closed as follows : “ I have given yon the facts for you to decide and let me know your decision. You cannot make much mistake in the stocks I have mentioned. You can have the benefit (if any) of my experience; but do not forget that all human judgments are fallible, and I may be mistaken in my opinions. You should inform yourself as soon as possible. My opinion is there will be a large advance in all R. R. stocks except such as have been inflated.”

To this letter Meeker replied the next day, speaking of his resources and his efforts to get in his money, desiring to know how long he could carry the one hundred shares of stock upon payment by him of $2,000, expressing a wish that some of his money might be used to speculate in Lake Shore, and in Wabash stocks, and saying among other things, “ as you are disposed to help me a little, I wish you to practice that great rule, do by me as you do for yourself, and I will take the results.” “You understand now my resources and wishes, I think, and if you think it is best for me or for yourself to venture my $4,000, in this way, then let drive and I will send moneys to you as fast as they come, and pay you interest on any moneys you use of your own for my benefit.” “ Not that I care about speculating, but I would like to have as' much lawful interest in the way of dividends as my neighbors have,” “all of which I leave now to your judgment.” On April 9, before the defendant had received the full sum of $2,000, he purchased through his brokers the one hundred shares of New York Central stock at a total cost of a little over $10,000, and reported the purchase by letter to Meeker. They met soon after, and had a conversation in which the defendant told him that he need not hurry up his collections, or incommode himself, as the stock had been purchased. After that they did not meet for about a year and a half, and their business was transacted by correspondence. Meeker from time to time sent him more money,- suggesting in some of his letters that he should use his money in speculating in Western stocks so as to make money to aid in paying for the Mew York Central stock. The defendant in the letters he wrote acknowledged the receipt of money, gave -his opinion about stocks and sent statements of the account between them. The defendant was to carry along the stock in this way until, by the mobey sent him by Meeker and the dividends on the stock, it was paid for, and then, and not until then, Meeker was to have the stock certificate.

Unfortunately for both parties, in the Autumn of 1873 the great financial panic -occurred, which caused great stringency in money, and .great depreciation in the price of stocks; and on March 11, 1874, after he had received of Meeker, including the dividends credited, about $5,000, pressed by his financial necessities, without the knowledge or consent of Meeker, he sold the stock. After -that, Meeker continued to send him money from time to time to apply upon the stocks, and he continued to acknowledge the receipt of the money so sent, and to send statements -to Meeker showing credits for the money and for dividends as if made upon stock actually held by him. In a letter to Meeker dated March 12, 1875, he advised him not to sell -the. stocks until times were better, and said that he would carry it just as long .as he wished; and in a letter dated March 15, he said : “You will certainly do well not to sell until times .are better, for then you will get a higher price.” They met .in the Autumn of 1875 and had some conversation about the stock and the account, in which Meeker proposed thereafter1 to pay his money directly to the brokers instead -of the defendant, but it was suggested by the defendant that as he had .charge of the matter and there was some discrepancy between him and the brokers about the account, he should continue to make his payments to him. On January 12, 1876, the defendant wrote him a letter giving him a statement of his credits for dividends, upon the stock, besides credits for several payments of money. He closed the letter in language not uncommon with deluded and sanguine dealers in stocks by saying: “ I think stocks have about reached their lowest prices. The market is very buoyant. There will be a prodigious advance in them before long. Bottom has been touched.” Thereafter, without any further meeting or communication between them, on March 30, Meeker sent him $575, for which he gave a receipt, and that is the sum which he is charged with obtaining by the false pretenses. Afterward Meeker continued to send the defendant money which the defendant continued to acknowledge, and this course of business continued until April 13, 1877, when the defendant gave Meeker a receipt for a small sum, which was stated to be in full payment for the one hundred shares of stock. The correspondence between the parties which continued down into the year 1879, shows that the defendant was financially embarrassed, but that he was hopefully struggling against the adverse tide, and waiting for a favorable turn in the stock market. In the end he became insolvent, and all his property, and all Meeker had paid him, seem to have passed into the Wall Street maelstrom, where so many fortunes of sanguine and confiding speculators have been engulfed.

It must be noticed that not a word passed between Meeker and the defendant, personally, from the Fall of 1875 until long after the payment of-the $575.

The defendant at no time asked Meeker to pay that or any other sum, and the only false representations upon which the people rely are those contained in the statements made in the accounts sent to Meeker by the defendant on and prior to January 12,1878.

We have thus given an outline of all the evidence tending to establish the crime of which the defendant was convicted. A careful examination and consideration of all the facts, has left upon our minds a strong conviction that the defendant was not guilty. He ought not to have sold the stock without Meeker’s consent; but in doing so he was at most guilty of its conversion. After he had sold it, he ought to have informed Meeker of the sale, so that he could have withheld further payments, or, at his option, continued the payments relying upon the ability of the defendant to furnish the stock when it should be paid for. But for withholding this information he was not guilty of any crime. He ought not to have used language in his letters and statements sent to Meeker, substantially conveying information that he was still carrying the stock. So far as his letters and statements convey that information they were undoubtedly false ; but a mere false statement is not punishable as a crime. It is not claimed that the defendant, at the time of the original arrangement with Meeker to i-eceive his money for the purchase of the stock, had then formed any plan or intention to defraud or swindle. It is entirely clear upon the evidence that he intended them, in good faith to aid Meeker to make money by operating in stocks, and to procure for him a profitable and safe investment. Having been somewhat successful in stock operations, he was sanguine that his good fortune would continue and that his sagacity would enable him to aid Meeker. There is not a particle of evidence which justifies the inference that when he sold the stock he meant to defraud Meeker. At that time, so far as the evidence tends to show, he had abundant property left after the sale to respond to any claim of Meeker. There is no reason to doubt that he made the sale of the stock to relieve himself from what he then believed to be a temporary embarrassment, expecting to be able to replace the stock, and in any event to deliver it whenever Meeker should pay for it. It is not a just inference from the evidence that when, on January 12, 1876, more than two months before the $575 was paid, the defendant entered into an account then rendered to Meeker, credits for dividends paid upon the stock as if he were still holding the stock for him, he made such entries for the purpose of inducing Meeker to make further payments. As between himself and Meeker, the latter was entitled to such credits, and it was simply a mode of stating the account between him and Meeker, as an account would have to be stated whenever the stock should be fully paid for and the time should come for its delivery. Those statements in the account were not made to induce any payment or any action on the part of Meeker. He at no time

pressed Meeker for payments or asked him to make payments, and whatever payments were made by Meeker at any time were voluntarily made. It is not a just inference from the evidence that on January 12, or at any time before the §575 was paid, the defendant had conceived any design to swindle or defraud Meeker. He was evidently confident and sanguine that a turn in the stock market would bring him out all right, and enable him to perform his entire obligation to Meeker in reference to the stock.

In order to constitute the crime of obtaining property by false pretenses, it is not sufficient to prove the false pretenses, and that property was obtained thereby ; but it- must be proved that the false pretenses were made with intent to cheat and defraud another. Here there was an entire failure to prove that necessary element of the crime. It is impossible to say that the statements as to the dividends, in the letter of January, 1876, were made to induce the payment of the $575, or to induce any further payments. The defendant undoubtedly wished Meeker to understand that he was still carrying the stock, not for the purpose of inducing him to make further payments, but undoubtedly so that Meeker should not complain of, charge him with, or hold him for the conversion of his stock. Another essential element of the crime which the people in all cases of this kind are bound to establish, is that the money was paid, or the property parted with in reliance upon and under the inducement of the false pretenses alleged. Here it is not a just inference from the evidence that this $575 was paid in reliance upon the representation that the defendant was still holding and carrying the stock. At that time Meeker had implicit confidence in the financial ability, the business sagacity and the personal integrity of the defendant. For aught that appears in the evidence, he would have continued his payments relying upon the defendant to deliver the stock when it had been fully paid for, if he had known, that to tide over a present necessity, he had sold the stock. And so, when Meeker was asked the direct question, he testified that he relied entirely upon the promise of the defendant that he would purchase the stock and deliver it to him after he had fully paid for it, and that his promise to deliver the stock was the only thing he relied upon. He did not testify, as he could if it had been true,’ that he relied upon the representations of the defendant that he still continued to carry the stock. It must be borne in mind that mere silence and mere suppression of the truth —the mere withholding of knowledge upon which another may act—is not sufficient to constitute the crime of false pretenses.

We do not sit here to square the conduct of the defendant by any code of morality, or any standard of integrity ; the sole question is whether the proof was sufficient to show that he had committed the crime with which he stood charged, and we are of the opinion that it utterly failed.

It does not relieve ns from our responsibility that the jury have found the defendant guilty. The point was taken at the trial on his behalf, that there was not evidence sufficient to establish the crime, and that he should be discharged on that account; and that makes it our duty to determine whether the evidence was sufficient, and finding that it -was insufficient, it is our duty to reverse the judgment entered upon the verdict of the jury.

But if so far wrong, and the case was one for the jury, errors were committed at the trial, of which the defendant can justly complain. Against his objection, the people were permitted to show payments of money by Meeker to him from time to time, before and after the payment of the $575.- Proof of such payment was made for the purpose of showing the guilty intention of the defendant, and was competent only for that purpose. The defendant, as a witness in his own behalf, was permitted to testify that he did not, at the time he received the $575, intend to defraud Meeeker. He was also asked this question : “ Was your intention, when you received moneys from time to time from Meeker to defraud him ?” That was objected to as incompetent and inadmissible, and the objection was sustained. As the intent with which those moneys were received was one of the material inquiries he should have been permitted to show that he did not receive it with any fraudulent intent. The case went to the jury in such a way as to enable the people to claim, that not only the $575, was received by the defendant with the intent to defraud Meeker but that all the other moneys were received in the same way, and that the receipt of all the moneys liad a tendency to show with what intent the $575 was received ; and hence the defendant clearly had the right to show that he had no fraudulent intent in receiving any of it.

The defendant, after answering that at the time he received the $575, he did not intend to defraud Meeker, was also asked to state his intention at the time he received it, and the question was objected to on the part of the people and the objection was sustained. We think that ruling was also erroneous. Upon the facts of the case as they were developed at the trial, it was claimed by the defendant that when ho received the $575, it was his intention to replace the stock, to respond to Meeker whenever called upon for the stock, and that he was at the time able to do so. That was a theory he had a right to prove if he could,, and the proof would bear upon the final issue, whether he intended to cheat and defraud him; and hence he should have been permitted to answer the question.

The judge charged the' jury as follows : “ If you find that the defendant made the representations charged in the indictment, and that they were false, and that the defendant knew they were false when he made them, then the law presumes the fraudulent intent.” That portion of the charge was excepted to by the defendant, and we think the exception well founded. The crime of false pretenses is not made out by simply showing that the representations charged in the indictment were made, and that they were false, and that the defendant knew them to be false. The jury, from those facts and from all the other facts, may infer a fraudulent intent; but the law does not presume a fraudulent intent. That is to be found as a fact by the jury, and is not an inference of law.

The indictment alleged that Baker did purchase this stock on April 9, 1873. The people, against the objection of the defendant, gave some evidence on the trial tending to show that the defendant never had the stock; and his counsel requested the judge to charge that under the indictment the jury must find that Baker had the stock April 9,1873 ; and the judge declined. That should have been charged. It was so alleged in the indictment, and the people could not take any benefit from any proof tending to show the contrary.

We are therefore of opinion that the defendant was improperly convicted, and that the judgment should be reversed and a new trial ordered.

Bapallo, Danforth and Finch, JJ., concur.