People v. Gluck

McLaughlin, J.: The defendant appeals from a judgment convicting him of the crime of grand larceny in the second degree upon which he was sentenced to a term of imprisonment in State’s prison of not less than one nor more than four years. The validity of the judgment appealed from is attacked principally upon the ground that, taking all the evidence together, it is insufficient to sustain the finding of the jury that the defendant was guilty of the crime charged and for which he was convicted. The evidence, in substance, tends to show that on the 4th of January, 1906, the defendant went to the place of business, of the complaining witness (one Behrens) for the purpose of purchasing, as he said, a diamond ring, and on being shown several loose stones, selected one to be set in a ring; that the stone thus selected was set in a ring and on the following day Behrens delivered it to the defendant, who at that "time sighed a memorandum stating that one fourteen-karat solid gold tooth ring, Homan colored, set with solitaire diamond, weighing 3/4 L. 1 /16 1/64, value $115, was consigned by John Behrens & Co. to defendant, returnable on demand; that the same was not sold, nor did title thereto pass; that the conditions on which the consignment was made were in writing, which the defendant read carefully before he signed the [434] same, and received the ring; that concurrently with the execution of this writing another one was signed by defendant, stating that he was to deposit with Behrens & Go. $30 on the execution of the . agreement and certain sums on certain dates thereafter, until the. total deposits amounted to $175, when- Behrens & Go. were to deliver to him one diamond ring ; that all the deposits then made were to become the property of Behrens & Go., who, in case defendant defaulted in any payment, was to deliver an article of the same nature, reasonably worth the sum deposited. It was also made to appear that at the time the ring was delivered' to the defendant he gave to Behrens & Go., or Behrens, the complaining witness, five dollars in cash and a check of a third party, payable to- his own order, and which was indorsed by him, for twenty-five dollars, which was not paid, the same being returned to Behrens marked “ H. G-.; ” that subsequently' Behrens, in the presence of his son, demanded the return of the ring, and the demand was refused. The material part of the evidence offered on the part of the People was not disputed, but the defendant testified that when he purchased the ring Behrens weighed the diamond selected and told him it weighed a karat and a 'quarter, and that after the ring had been delivered to him he ascertained, by having it weighed, that this was. not its correct weight and he thereupon stopped payment of the check referred to and refused to make further payments; that subsequently he offered to return the ring if Behrens would give back the five dollars he had paid and return the check. This Behrens denied, and he was corroborated by his son as to the con-_ yersatión which took place at the time the demand was made for the return of it, after the check had been dishonored. That a demand was made for the return of the ring was not denied by the defendant. This, in substance, is the testimony offered by the respective •parties, from which it appears that the defendant signed a memorandum at the time he accepted the ring, Which showed the weight of the diamond to be a little less than three-fourths of a karat. It was, therefore, unnecessary for the defendant to apply to other jewelers to ascertain the weight of the stone, nor could he in any way have been deceived upon that subject. He knew from [435] the statement signed that the stone was not represented to weigh one and one-quarter karats, and, therefore, the jury was justified in finding that his stopping payment of the check was not for the reason assigned by him, but in pursuance of a purpose to obtain possession and keep the ring without paying for,it. The charge of the learned trial court was as favorable to the defendant as could be reasonably asked. He' charged the jury that it must acquit if it reached the conclusion that the defendant offered to return the ring, or if he did not receive it as bailee. The defendant obtained the ring from Behrens & Co. He did not pay for it, and it was specifically agreed that until the deposits amounted to the price asked, viz., $175, the title to the ring was to remain in Behrens & Co., to whom the same should be returned on demand. He did not make the payment agreed at the time the ring was delivered, nor did he return the ring when demanded. Having failed to return the ring when demanded, he was, under the. pro visions of section 528 of the Penal Code, guilty of larceny. The judgment of conviction, therefore, should be affirmed unless there is merit- in defendant’s contention that errors were committed in the admission of evidence. During the defendant’s direct examination, he testified that he had been arrested in connection with a ticket agency of a steamship line but was discharged. On cross-examination he was asked, and permitted to answer against objection and exception, if the steamship ticket business that he was connected with was not that of selling^ to poor Jewish immigrants worthless orders for steamship tickets and if he did not receive, in one instance, eighty-three dollars for selling worthless orders for such tickets. To the first question he answered that he did not get money on false tickets from any one, and to the second question, that he sold an order for tickets which would be honored. He contends that his exception in each instance was well taken. I am of the opinion that the ruling was proper and the evidence admissible. The defendant having offered himself as a witness, the People had a right to prove specific facts which tended to discredit him or to impeach his moral character. (People v. Irving, 95 N. Y. 541; People v. Webster, 139 id. 84.) In holding 'that the admission of this evidence was not error, the cases cited by the appellant have not been overlooked, but the dis [436] tinction between evidence of previous arrest, indictments or accusations of wrongful acts and evidence of the commission ' of the. wrongful acts themselves is apparent.. It is only.the' admission of evidence of the former character that the, authorities condemn; on the other hand, the rule is well settled that acts showing disregard' of law and contempt for the rights of others may be "shown on cross-examination to affect the "credibility of the witness and to impeach his moral character, and the questions here propounded tended to elicit evidence bearing on such subjects. (People v. Irving, supra; People v. McCormick, 135 N. Y. 663.) The judgment of conviction is z-ight and should be affirmed. Ingraham and Lambert, JJ., concurred .; Patterson, P. j., and Houghton, J., dissented.