People v. Fitz-Gerald

Houghton, J.:

'The defendant was indicted and convicted pf the crizne of gz-and larceny in the second degree’in appropriating to his own use with ci’iminal intent the sum of $250 which he had,colleeted'as attorney for one Teresa Happel, lzis- client.

In the early part of 1906 Mrs. Happel, through the defendant as her attorney, brought action against the city of New York to recover damages for the negligent killing of her child. Negotiations for the settlement of the claim were entered into between defendant and the corporation counsel of the city which resulted in the entry of a judgment for $500 and the payment of that sum to the defendant as attorney on the 29th day of August, 1907. The defendant had an agreement with his client that he should be entitled to one-half the recovery for his services. Several months after the action had been settled, and after the defendant had received the money, as the complainant testifies, she inquired of the defendant as to the progress of her case and what had become of it, and defendant replied, in substance, that it was not strange the case had not come on for trial in view of the congestion of the calendars of the courts, and that he would take it up with the city attorneys and see whether they would settle or go to trial, and that he made several appointments to meet her and explain the situation of affairs, which he failed to keep, and that finally, becoming suspicious, she caused inquiries to be made and learned that the case had already been settled and the money paid to the defendant. Other witnesses in behalf of the People testified that when the defendant was confronted with the complainant’s accusations he admitted that he needed the money at the time he received it and used it for his own purposes, and that he did not tell the complainant that the case had been settled and the money collected when she made inquiries because he was financially embarrassed and could not pay her. On the other hand,'the defendant testified, in which respect he was corroborated by his wife, that he told the complainant when she made inquiries respecting the progress of the action that it had been. settled for • $500, and that $250 was coming to her, which he offered to pay, and that she refused to tal^e the $250 and demanded the whole $500, and complained that he had settled for so small a sum and desired he should pay the money back to the city and continue the prosecution of the action; and further, that he had been at all times financially responsible and willing to pay her the $250 to which she was entitled.

It was clearly for the jury to say whether they believed the story of the "defendant or that of the complainant and the other witnesses produced in behalf of the People to the effect that the defendant concealed the fact of settlement of the cause of action and the receipt of the money and represented that it had not been settled, as well as the claimed confession of the defendant that he had used the money for his own purposes and was so financially embarrassed at the time inquiries were made by the complainant that he could not pay her share to her.

The learned trial court instructed the jury that if they believed the defendant’s testimony they must render a verdict of not guilty, but on the contrary if they believed the evidence of the witnesses produced by the People and that the defendant had a guilty intent to appropriate the money to his own use at the time he received it, and did in fact so appropriate it, then they could and should find the defendant guilty.

The defendant urges as his principal ground for reversal of the judgment of conviction that the theory of the trial was wrong in that it was incumbent upon the People to show a demand on behalf of Mrs. Happel for the $250 belonging to her, and that until such demand no conversion or misappropriation could be committed because the money was rightfully in the hands of the defendant as attorney for the Owner. Such a demand was never made and the trial court held' that under the facts proved it was not a necessity because deception had been practiced and receipt of the money concealed and the share belonging to the complainant actually appropriated by the defendant, and that the length, of time which had elapsed from its receipt to the defendant’s interview with his client, together with the fact of the" actual appropriation by the defendant permitted the jury to find, if it saw fit, a guilty intent on the part of the defendant.

We think the court’s ruling in this regard was correct. The same question was considered by this court in People v. Birnbaum (114 App. Div. 480). In that case an attorney who was entitled to one-half the recovery settled the case of his client for $2,000 and falsely represented to her that it had been settled for only $1,300: In his opinion in that case Mr. Justice Laughlin said : “ On the facts -here presented a demand therefor by the client upon the attorney and refusal upon his part to pay would have completed the crime- She was deprived of making a demand by his concealment of the fact that he still retained some of her money and by assuring her that he had fully accounted.”

The court broadly charged the jury that the complainant was entitled to only $250 of the $500 and that the defendant came lawfully into possession of the complainant’s share and did not need to keep the identical money which he received to pay over to her, but could mingle it with his own provided he had remaining $250 with which to pay her.

The question of necessity for demand was raised by counsel for the defendant in various forms and by many requests to charge. We do not deem it necessary to discuss them in detail further than to say that in view of the deception proved to have been practiced by the defendant upon his client respecting the receipt of the money, and his confession that he had used it for his own purposes and was unable to repay it, and the length of time which elapsed between its receipt by him and inquiry concerning it by the com- ' pláinant and continued concealment of the fact of collection, we do not deem failure to prove demand fatal to the conviction of the defendant.

At first blush some of the defendant’s requests to charge with respect to guilty intent might seem to have been improperly refused. In his main charge the court told the jury that they must find that the defendant had used the money for his own purposes. After various requests respecting intent had been made and various responses made by the court, the defendant’s counsel finally asked the court to charge that guilty intent unless coupled with some overt act could not constitute the crime of larceny. To this the court responded that he had all along assumed in charging as to intent that the defendant had used the money for his own purposes. In view of the charges made and this explanation of the court the jury could not have understood that the court intended to instruct them that a guilty intent unaccompanied by any overt act would make the defendant guilty of the crime charged against him. What the jury did understand was that notwithstanding the defendant may have appropriated the money to his own use, still it must have been with a guilty intent in order to make him guilty of any crime.

It is unnecessary to discuss further phases of the case, but only to say that upon a careful examination of the record we are convinced that the defendant was proven guilty of the crime charged, against him and given a fair trial, and that there were no errors committed which call for a reversal.

The judgment of conviction should be affirmed.

Patterson, P. J., Laughlin and Scott, JJ., concurred; McLaughlin, J., dissented.