I very much fear that this decision of the court may reintroduce some of the confusing uncertainties which the Legislature sought to eliminate from larceny prosecutions some six years ago. Consequently — quite apart from doubts which I entertain as to the sufficiency of the proof establishing the guilt of the defendant Cohen — I cannot concur in the affirmance of the conviction of either appellant, for the reason that the mass of evidence relating to false representations was received at the trial in violation of a controlling statute.
Section 1290 of the Penal Law, as it existed before 1942, defined not a single crime of larceny but three separate and distinct offenses, known as larceny, embezzlement and obtaining property by false pretenses. Each had to be prosecuted by a different indictment or by a separate count of the same indictment, and a vast amount of confusion accompanied the attempt to preserve the identity of each. Indeed, so subtle and nebulous were the distinctions drawn between them that not infrequently one categorically proved a thief was able to escape the consequences of his crime because the prosecutor charged the wrong sort of larceny or the trial judge misconceived the type of theft established. (See, e.g., People v. Noblett, 244 N.Y. 355; People *Page 259 v. Dumar, 106 N.Y. 502; Zink v. People, 77 N.Y. 114; see, also, Commonwealth v. King, 202 Mass. 379, 388-390.)
To rid the law of these perplexing refinements and distinctions, the Legislature in 1942 redefined the crime of larceny by completely rewriting section 1290 of the Penal Law (L. 1942, ch. 732). In its preface, the amendatory act declared that it was "the public policy of the state that the best interests of the people of the state will be served, and confusion and injustice avoided, by eliminating and abolishing the distinctions which have hitherto differentiated one sort of theft from another". By explicitly rendering "immaterial" the concept of "possession" and "title" in prosecutions for larceny, the Legislature put an end to the legal mumbo-jumbo and to the "very nice" distinctions (Loomis v. People, 67 N.Y. 322, 329) that had previously plagued prosecutor and court and hindered the effective administration of justice.
The Legislature also added section 1290-a — to regulate the manner of pleading and proof — and it is with that provision that we are concerned. A larceny indictment, it is recited, "shall be sufficient" as long as it charges that the accused, possessing the requisite intent, "stole" property. If, however, it is further specified, "the theft was effected by means of any false or fraudulent representation or pretense, evidence thereof may not be received at the trial unless the indictment * * * alleges such means".
In the case before us, the indictment, containing 479 separate counts, charged the defendants with the commission of a large number of thefts and forgeries, assertedly connected together and constituting part of a common plan and scheme. The indictment did not contain any allegation of false representation or pretense. Nevertheless, evidence of false representations — which, the district attorney in his opening declared, "duped" the victim's officers — was concededly, and over objection, received at the trial. The question for determination, then, is whether or no the thefts charged against the defendants were "effected" by means of those false representations so as to have required their allegation in the indictment.
Little purpose is to be served by treatment of the evidence. It is sufficient merely to note that the proof indicated, first, that defendants evolved a fairly elaborate scheme which called *Page 260 for false representations — in the form of faked invoices — to induce certain action on the part of officers of the victimized Mergenthaler Linotype Company, and, second, that it was by means of those faked invoices that defendants contrived to have checks written in such form as best to assure the success of their plan involving the stealing of those checks. There can be no question that the preparation of the invoices, the preparation of the checks to the order of nonexistent firms, the presentation of both invoices and checks to Mergenthaler officers, the signing of those spurious checks by the officers in reliance upon the faked invoices, and under the belief thereby induced that the payees were Mergenthaler creditors — there can be no question, I say, that all of those acts constituted necessary and vital links in effectuating the larcenous scheme ascribed to defendants. Assuredly, the larcenies proved were, in ordinary understanding, "accomplished" or "effected" by means of false and fraudulent invoices and checks. Absent evidence of such false and fraudulent invoices and checks, the People's case would have taken on a completely different aspect; evidence of different acts, of an entirely different scheme, would have been adduced.
It may well be that none of the thefts was consummated until one of the defendants actually placed the fraudulently-inspired check into his pocket; it may well be that each of those thefts was of the type previously denominated a common-law larceny rather than larceny by false pretenses. But to attach operative effect to either one or the other of those circumstances, to insist that the false representations did not "effect" the crime because they did not immediately induce the victim to part "voluntarily" with title to the property, is but to resurrect the ancient confusion: it is merely another way of saying that the theft committed was old common-law larceny rather than larceny by false pretenses. The net effect is to disregard the clearly expressed legislative design and policy that the distinctions between common-law larceny and false pretenses be eliminated and abolished. In other words, if decision as to whether or not false representations need be alleged, is made to depend upon the pre-1942 type of larceny committed, it is evident, I believe, that we would we perpetuating the very hairsplitting distinction between larceny and false pretenses that the new law sought to do away with. It is, of course, no answer *Page 261 that the attempted distinction is here invoked in favor of the prosecution, for justice to the People demands fairness for the individual.
It cannot be too often repeated or too strongly emphasized that, in enacting the new larceny law, the Legislature declared its aim to be the elimination and abolition of "the distinctions which have hitherto differentiated one sort of theft from another" (L. 1942, ch. 732). Obviously, after providing for their abolition, the Legislature did not mean to continue the distinctions in effect for the purpose of determining whether false representations had to be pleaded in the indictment. That enactment — and the redefinition of the crime of larceny — is as significant as any step toward a more rational criminal procedure. Judges should be alert not to detract from its significance or impair its value. The courts may effectuate and carry out the legislative purpose and thereby assure the nonappearance of technicality and confusion, simply by making certain that those distinctions legislatively eliminated remain eliminated and are not imported anew into larceny prosecutions.
A consideration of section 1290-a of the Penal Law confirms my conclusion. That section requires the allegation of false or fraudulent representations if they aided in the consummation of the theft or facilitated its commission, regardless of what the offense may previously have been called. Whether the People could have established the offenses charged in the indictment without introducing evidence of false representation — whether the case would have been legally sufficient or factually persuasive without such proof — is beside the point. Important and consequential is the circumstance that the statute unequivocally provides that evidence of false representations "may not be received at the trial unless the indictment * * * alleges" them. And, as indicated, the necessity for such allegation is not limited to thefts previously prosecuted under the label, obtaining property by false pretenses; in terms, the statute encompasses every case in which false representations were utilized to "effect" or bring about the theft. Consequently, if the People elect to prove that the thieves made use of false representations to induce certain conduct on the part of their victim, and those representations constituted an integral part of the scheme devised to steal the property — as is the case here — the *Page 262 theft is one "effected" by those misrepresentations, and the indictment must set them forth.
In my view, therefore, there should be a reversal. The People should determine whether to retry the case on the present indictment — and desist from offering proof of false representation — or to seek a new indictment alleging the essential false representation and pretense.
I would reverse the judgments and order a new trial.
CONWAY, THACHER and DYE, JJ., concur with LEWIS, J.; DESMOND, J., concurs in separate opinion as to defendant Lobel but dissents and votes to grant a new trial as to defendant Cohen; FULD, J., dissents as to both defendants in an opinion in which LOUGHRAN, Ch, J., concurs.
Judgments affirmed. [See 298 N.Y. 920.]