APPEAL by the defendant, Eli Cohen, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 2d day of September, 1909, convicting him of the crime of grand larceny in the first degree, and also from orders denying motions for a new trial and in arrest of judgment.
Clark L. Jordan, for the appellant.
Robert S. Johnstone, for the respondent.
Defendant has been convicted of the crime of grand larceny, committed under the following circumstances: He had inquired of his butcher, John G. Kloes, in May, 1908, whether he intended to purchase any copper stock, to which the latter replied that he had no money for that purpose, but if his wife's uncle, one Siegrist, would advance half the required cash, he would go in with him. Cohen then told Kloes that the stock was Amalgamated Copper, which company had its office at 42 Broadway, New York city, and that he wanted to sell Kloes 50 out of 200 shares which he owned. Thereafter he requently called at Kloes' store, exhibiting the newspapers, showing the rise in Amalgamated Copper stock, and solicited Kloes to buy the shares which were his property. Finally on July 2, 1908, Siegrist made out a check for $2,600 to the order of Kloes which the latter indorsed and turned over to Cohen in payment for 50 shares of Amalgamated Copper stock at $52 per share, the agreed price. Thereupon Cohen gave him, in
writing, a receipt as follows: 'Received from John G. Kloes Twenty-six hundred dollars for 50 shares of Amalgamated Copper at $52.' It was admitted that the defendant deposited the check to his account and received the proceeds thereof. When the check was turned over, defendant said he would have his broker attend to the transfer of the stock and when Kloes asked for his certificate on the afternoon of the same day defendant said he would bring it in the following day, July third. On that day defendant produced an envelope, saying: 'Here is your stock certificate, put your name on it.' Kloes signed it without opening the paper and defendant promptly sealed it up in the same envelope, telling Kloes to put it in the safe and not tell any one about it. For some time he still kept showing Kloes the market quotations for Amalgamated Copper stock, and in September gave him $25 as a dividend on Kloes' stock. When Kloes finally opened the envelope in Christmas week, 1908, he found that it contained what purported to be a certificate that Eli Cohen and Edward Bach owned 200 shares in an Amalgamated Copper Company organized under the laws of the State of New York, whereof 100 purported to be transferred to John G. Kloes. This was the paper upon the back of which Kloes had signed his name, without knowing its contents. It was conceded that there was no such company organized or in existence under the laws of the State of New York as the 'Amalgamated Copper Company.' The certificate bore upon its face the evidence of its spurious character as a certificate of stock in any company. Inclosed in the same envelope was a certificate for shares in the Juniper Gold Mining Company, valueless, and of whose existence Kloes knew nothing until he opened the envelope. Defendant never made any effort to deliver genuine shares of Copper stock to complainant.
It is plain upon this record that facts had been established sufficient to justify defendant's conviction of the statutory crime of grand larceny. For Kloes had parted with the title to his money relying on the false representation made by defendant of an existing fact, viz., that he was the owner of 200 shares of stock of the Amalgamated Copper Company which had its office at 42 Broadway and whose stock was that
shown in the market quotations brought to Kloes' attention by Cohen. Out of this stock Cohen undertook that his broker would arrange the transfer of 50 of such shares to Kloes. When it was shown that the 200 shares of stock which Cohen in fact claimed to own and which he tendered in performance of the purchase were represented by a bogus certificate for stock in a non-existent Amalgamated Copper Company, the prosecution had gone as far as it was required to raise the issue as to the falsity of the representation, for it has been recognized, in in view of the general impossibility of proving an absolute negative, that it is sufficient for the prosecution to approximate, so far as it is in its power, to such negative, leaving it to the defendant, if he can, to break this down by proving the affirmative act. ( People v. Coombs, 36 A.D. 284; affd., 158 N.Y. 532; People v. Pinckney, 67 Hun, 428.)
The facts proved did not justify the submission to the jury of the question of defendant's guilt of common-law larceny, which constituted the second count in the indictment, for that count cannot be supported by proof establishing only the crime of larceny by false pretenses. (People v. Dumar, 106 N.Y. 502.) It is apparent here that Kloes absolutely parted with the title to his money as well as its possession, relying on the representations made by Cohen and, therefore, the crime is false pretenses and not common-law larceny. (Loomis v. People, 67 N.Y. 322.) The denial of the motion to take from the consideration of the jury the second count in the indictment, therefore, constituted error.
Error was also committed in admitting the testimony of the witnesses Charles Herbstrith, Louisa Herbstrith, Alexander Collinge and George A. Young. Charles Herbstrith was allowed to testify as to a transaction with defendant in May, 1908, when the latter obtained from him $750 to buy for him enough to make up 100 shares of Pennsylvania railroad stock at $127 per share. His wife already had bought 40 shares through Cohen, but getting no dividend complained to Cohen who said they could get no dividends unless they owned 100 shares, whereupon Herbstrith ...