Webster v. the People

Daniels, J.

The facts stated by the district attorney and not denied by the prisoner’s counsel supplied a complete answer to the application for the postponement of the- trial. The delay has been such as to subject the application to the; suspicion that it was not made in good faith, and the proposal m'ade by the prosecuting officer to go to the residence- of the- absent witness and take his evidence was entirely reasonable in itself, for it afforded the defendant the means- of using his evidence upon the trial. And when his counsel refused, as he did,, to- accept that offer, the court was justified in. denying the application, for the postponement. But even if that were not the- case, the exception taken to the decision would be of no avail upon a writ of error, for it is not a subject which can be brought up. for review in that manner. Eighmy v. People, 79 N.

Y. 546 .

The deed which' was made the instrument for obtaining, the money from the prosecuting witness, was set out in. the indictment, but it was not in terms- alleged to- have been sealed,, and as the deed offered in evidence upon the trial was sealed, this was objected to as rendering the deed produced, improper by the way of evidence. But in the attesting clause of the deed set out in the indictment, it was stated to have been sealed, and beyond that, alleging it to> have been a deed, was, in substance, alleging it to have been executed under seal. Paige v. People, 6 Park.

683. .

By a comparison of the deed produced with that set out in the indictment, the courses of two of the boundary lines appeared to have been omitted in copying the deed into the indictment. With the exception of those omissions, the copy obtained in the indictment was an exact copy of the deed as it was produced upon the trialbut on account of these omissions the deed itself was objected to as evidence, for the reason that in this respect it differed from that set forth in the indictment. But these differences were not important, for the copy in the indictment still constructively showed that the northerly and southerly lines of the land described,, were, fifty feet in length,, *194 and as the easterly and westerly points were literally given, the description was not materially deficient, particularly as the lands were stated to have been staked out, and their length and breadth were afterwards given with the same precision as that shown by the deed itself. There was no possibility of the prisoner being misled by these omissions, for without them the copy was in legal effect and substantially the same as the deed executed by him.

The evidence .tended to show that the land which the prosecuting witness had agreed to purchase from the prisoner, was on the north side of the Long Island .Railroad, while that described in the -deed, both as it was set out in the indictment, ¡and was made to appear upon the trial, is stated to be seventy-five feet south of the center of the Long Island Railroad. And -one -of the representations by which the money was obtained, is alleged to have been that the defendant falsely read the deed to the witness, as a deed of land on the north side of .the railroad, and in that manner obtained from him the money mentioned in .the indictment. This witness was an illiterate person, not able to -read the deed himself, and he and the other persons who were present at the defendant’s office in the city of Hew York, when the transaction was completed, testified that the -defendant there read the description in the deed, as describing property on the north side, while in fact it wholly described property on the south side of the railroad, and the' prosecuting witness testified that he would not have paid the money if he had not believed the deed to contain the property which had been exhibited to him by the defendant, as the property to be sold, and which was situated on the north side of the railroad.

This was sufficient to make out the case, although other false representations were set out in the indictment, for where more than one of such representations are alleged, the case may still be established by proof of one of them. Bielschofsky v. People, 3 Hun, 40 .

It is not necessary, therefore, to inquire whether the title of the defendant’s wife to the property on the north side of the railroad, was shown to have been good and free from incumbrance, for the intentional misreading of the deed, in the man *195 ner in which that is stated to have been done, and by means of that reading obtaining the money of the prosecuting witness, were sufficient to lead to a denial of the motion made by the defendant’s counsel, requesting the direction of a verdict of acquittal. As the case was presented, it justified the verdict returned by the jury, and the judgment should, therefore, be affirmed.

Davis, P.

J., and Beady, J., concur.

Upon appeal to the Court of Appeals, the judgment was affirmed, and the following opinion was written :

Miller, J.

—Upon the application to postpone the trial of the indictment against the prisoner there were circumstances to excite suspicion in the mind of the court that the application was not made in good faith. There had been a long delay, as appears from the facts stated by the public prosecutor, which were not contradicted, and the proposition of the court to take the testimony of the absent witness at his residence was a fair one and would have given the prisoner the benefit of the testimony and should have been acceded to by the prisoner’s counsel.

Although the presence of a witness is always desirable instead of his testimony being taken in writing, yet under the circumstances presented we do not think any just ground, on complaint exists for refusing to postpone the trial on the ground of the absence or the inability to procure the personal attendance of the witness. It is enough to justify the condition imposed that the judge had reason to suspect the application was not made in good faith. It may be added that upon a writ of error no exception lies to a refusal to postpone a criminal trial by reason of the absence of witnesses. Eighmy v. People, 79 N. Y.

546 .

There was no error in admitting in evidence the deed offered by the prosecution. The objection is that the boundary lines northerly and southerly contained in the deed, were left out of the indictment, and that there was no seal. The indictment, it is true, does not in terms allege that the deed was sealed. It is so stated, however, in the attesting clause of the *196 deed as set forth in the indictment, and the allegation that it was a deed was a substantial averment that it was under seal. Such a conveyance imports a seal, and it may be assumed therefore that the deed set out in the indictment contained all that was required to constitute a valid conveyance. The omission of two of the boundary lines from the description in the deed set forth in the indictment did not constitute a material variation and was not important, inasmuch as the copy in the indictment shows inferentially that the northerly and southerly lines Were fifty feet in length ; and as the easterly and westerly points were correctly given, the description was not radically deficient. The indictment stated that the lands had been staked out, and the length and breadth were given as stated in the deed itself. No mistake could have been made by the prisoner by reason of the omission as the copy was in substance and effect the same as the one he had executed. It is claimed by the appellant’s counsel that the court erred in refusing to take the case from the jury. This position is based upon the ground that the evidence established that the mortgage was assigned to the prisoner and his wife on the 23d day of October 1872; that it was conceded, the prisoner’s wife owned the fee of the land that was purchased at the time the representations were made; that the mortgage and fee in the land having merged the property was free and clear.

Assuming the correctness of this position, we think there was sufficient evidence to authorize the court to submit the case to the jury. It was alleged in the indictment as one of the false representations made by the prisoner to one John Breen, who was an illiterate person and unable to read writing that he owned four lots of land north of the Long Island Bailroad and that a deed purporting to be executed by him and wife to the said Breen was a deed and conveyance of the said four lots, and that the four lots were set forth and described therein, and that Breen, believing-the representations and that the instrument was a conveyance of said four lots, and being deceived thereby,, paid to-tile prisoner the sum of money mentioned in the indictment. The evidence shows that the witness was not able to read the deed, and that the prisoner read it to him falsely, in that the property was situated one hundred and *197 seventy-five feet north of the center of the Long Island Railroad, and the prosecutor testified that he would not have paid the money if he had not believed the deed to contain a description of the property which had been exhibited to him by the prisoner as the property to be sold and which was situated on the north side of the railroad. There was proof to show the representations in regard to the location of the property were false, and that the allegation set forth in the indictment concerning the same was true. Where one or more pretenses are proved to be false, and the pretenses thus proved to be false are sufficient jper se to constitute the offense, the accused will be convicted notwithstanding that the public -prosecutor fails in proving to be false other pretenses alleged in the indictment. Butler v. Maynard, 11 Wend.

552 ; Bielschofsky v. People, 3 Hun, 40 . Whether the land was free and clear from all incumbrances, was, therefore, of no consequence, if the intentional misreading of the deed induced the prosecutor to part with his money, and a case was made out independent of the false representations alleged to have been made in this respect.

It follows that there was no error in refusing to take the case from the jury, or in refusing to direct the acquittal of the prisoner.

The judgment should be affirmed.

Judgment affirmed.

All concur.