People v. Winslow

Cooley, J.

None of the evidence received on the trial was foreign to the issue except that of the officer Sullivan that he found a small amount of money on the prisoner’s person; and it is impossible to conceive that that could have worked any prejudice to the prisoner. All the rest had a direct tendency, more or less strong, to support the theory of the prosecution. That theory was that Winslow & Parker, by a false show of business, a false pretense of being about to engage in other business, and by' other fraudulent devices to give color to assurances that a situation could and would be procured for Nicholas, had succeeded in defrauding him of his money. The evidence that the conspirators had engaged offices for which they paid no rent was not, as is argued on the part of the prisoner, put- in to show that they had been guilty of frauds or wrongs of any sort upon others, but as a part of the showing that the appearances by which Nicholas was deceived were wholly fictitious and fraudulent. It is not necessary in a case of *507 this sort to set forth in the information the false pretenses by which the offense was accomplished; People. v. Clark, 10 Mich., 310 ; nor in the proof of them can the prosecution be restricted to the exact transaction as it took place between the prosecutor and the accused: the preparation for the crime is often more significant in demonstrating the intent than -are the circumstances in which the prosecutor has been an actor; and the transaction appears innocent until the preparation is exposed which led to it.

Nor can the conspirators escape responsibility for the fraud because they accomplished it by means of a promise. The promise was accompanied by assurances of Winslow’s confidence in his ability to procure the desired situation, which evidently referred to a situation in Parker’s proposed business, and which the jury must have found were wholly baseless. The promise was therefore accompanied by a false assertion of confidence, as well as by various false and fictitious devices calculated to win confidence in it. The case of Ranney v. People, 22 N. Y., 413 , is called to our attention, but we cannot concur in its reasoning. - _ A false assertion that one has a position to give out, or one in mind which he can fill, is as much within the statute, in our opinion, as any other falsehood by means of which one is induced to part with his property; and some accompanying promise is in many cases of false pretenses a matter of course.

It is probable the prisoner had reasonable complaint of the language employed by the public prosecutor in his address to the jury; * but we cannot correct such *508 faults on writ of error. The trial court should restrain counsel within due limits, and it is to be assumed that this will be done.

The Recorder’s Court must be advised to proceed to judgment on the verdict.

The other Justices concurred.

The record states that counsel for "the People in concluding his address to the jury used this language: “It seems to me, gentlemen, that the only inference you can draw from the acts of these men "Winslow and Parker, is that they are the lowest of the low dead beats.” The counsel for the respondent interposed and insisted that this was not proper language to be used. The attention of the judge was called to the language and counsel for the respondent requested the court to prohibit the counsel from using language of that character, The court declined to make any ruling and counsel for the respondent excepted.