Bork v. People

Hardin, J. Under chapter 19 of the Laws of 1875 the plaintiff in error was indicted, tried and found guilty. That statute is entitled, “ An act to provide more effectually for the punishment of peculation and other wrongs affecting public moneys and rights of property.” Section one declares u every person who with intent to defraud shall wrongfully obtain, receive, convert, pay out or [376] dispose of . . . or in any other manner or way whatever shall. aid or abet any other in wrongfully obtaining, receiving, converting, paying ,out or disposing of any money, funds, credits or property, held or owned by this state, or held or owned officially or otherwise for or on behalf of any public or governmental interest by any municipal or other public corporation, board, officer, agency or agent, of any city, county, town, village, or civil division, sub-division, department, or portion of this state, shall, on conviction of such offense, be punished by. imprisonment in a state prison . . . &c.” Plaintiff in error insists the indictment is fatally defective, for the reason that it does not allege that the bonds charged to have been obtained and received by him were held by the comptroller of the city of Buffalo for or on behalf of any pub-lip or governmental interest. The indictment chargés: First: The city of Buffalo was and is a municipal corporation, duly organized and incorporated. Second : That Thomas B. Clinton was an officer of said city of Buffalo, to wit, comptroller of said city. Third : That on the first of October, 1875, at the city of Buffalo, as such officer of said city of Buffalo, “ the said Thomas B. Clinton held officially for and on behalf of the said city of Buffalo, such city and municipal corporation as aforesaid, a large quantity of bonds of the said city of Buffalo, to wit: Two hundred bonds of the said city of Buffalo, such city and municipal corporation as aforesaid, then and there unpaid and unsatisfied, of the kind known as City and Connty Hall bonds, and of the denomination of one thousand dollars, each bond of the vahie of $1000, each bond the credits, funds and property of the said city of Buffalo, such city and municipal corporation as aforesaid. Fourth : That on the first day of October, 1875, at the city of Buffalo aforesaid,. Joseph Berk, with intent to defraud the said city of Buffalo, such city and municipal corporation as aforesaid, feloniously, fraudulently, wickedly and wrongfully, did obtain and receive from some person or persons to the jurors aforesaid unknown,. and did convert to his own use, pay out and dispose of a large quantity of bonds, to wit: One hundred bonds of the said city of Buffalo, such city and municipal corporation as aforesaid, then and there unpaid and unsatisfied, of the denomination of one [377] thousand dollars each bond, and of the value of one thousand dollars each bond, and of the value in the aggregate of one hundred thousand dollars, a further or more particular description of which said bonds, and of the kind, quantity and value of which said bonds is to the jurors aforesaid unknown, of the funds, credits, and property of the said city of Buffalo, such city and municipal corporation as aforesaid, then and there held so as aforesaid by said Thomas It. Clinton, such officer as aforesaid of the city of Buffalo, such city and municipal corporation as aforesaid, officially for and on behalf of said city of Buffalo, such city and municipal corporation as aforesaid, to the great damage of the said city of Buffalo, such city and municipal corporation as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace of the people of the state of New York, and their dignity.” All elements and incidents of the crime, as the same is defined by the statute, are contained in the indictment. Phelps v. People, 72 N. Y. 334. The bonds when held by Clinton, the comptroller, were by him held for the city of Buffalo. They -were held by him officially for and on behalf of said city. That city is “ a public or governmental interest,” and when they were held by the comptroller, they were held for and on behalf of a public or governmental interest, by a municipal .or public corporation. The bonds were the property of the city, and the fraudulent receiving of them, the fraudulently disposing of them, obtaining, converting or paying out thereof (they being the property of the city) was a crime, within the intent and meaning of the statute. All the facts needful in proof for the people to establish the crime defined by the statute were averred. The case is unlike Wood v. People (53 N. Y. 511), where it was needful to prove a pardon or discharge upon the expiration of his sentence, as the statute required, to establish the crime as a second offense. It was said in that cáse that the indictment must aver all the things that make the offense. Folger, J., in People v. Phelps (72 N. Y. 355), says that, “ the reason of that rule is to inform the accused of the leading grounds of the charge ; to enable the court to pronounce the proper judgment affixed [378] by law to the combination of facts alleged, and to enable the party to plead, the judgment in "bar of a second prosecution.” We think the requirements of the rule, an averment of the elements and leading grounds of the charge under the statute, were satisfied and complied with so fulty that the indictment should be upheld and pronounced by us sufficient under the statute. The bonds in the hands of the comptroller were property. The paper and labor thereon had been procured by the city, to enable it to put them into the public market upon which to obtain a loan of money, in accordance with a statute authorizing the city to do so. People v. Wiley, 3 Hill, 194; Commonwealth v. Rand, 7 Metcalf, 476; Reg. v. Morris, 9 Carrington & Payne, 347; People v. Campbell, 4 Parker, 386; U. S. v. Nolton, 5 Mason, 537. The jury have found that the plaintiff in error wrongfully with intent to defraud, obtained, received, and disposed of the funds, credit or property of the city, and that finding is supported by evidence, and we must accept their conclusion, in the consideration of the questions presented. Their verdict was warranted by the evidence produced upon the trial. It was not error to receive in evidence the resolution of the Common Council, authorizing the issue of the bonds, nor proof of the statutes under which the bonds were issued. These facts were proper to establish the validity of the bonds, and their value incidentally depended upon the authority upon which they were issued. Having found no error in the course of the trial, we must affirm the conviction. Conviction affirmed and proceedings remitted to the Oyer and Terminer of Erie county, with directions to proceed thereon. Smith, P. J., concurs; Talcott, J., not voting.