APPEAL by the defendant, Orrin N. Lumbert, from a judgment of the County Court of Onondaga county, rendered against the defendant on the 4th day of January, 1898, convicting him of the crime of grand larceny in the first degree, and also from an order denying the defendant's motion for a new trial made upon the minutes.
Frank Hopkins, for the appellant.
George H. Bond, District Attorney, for the respondent.
The defendant was indicted by the grand jury of Onondaga county, October 27, 1896, charged with the crime of larceny in the first degree, committed on the 28th day of May, 1896, at the city of Syracuse in that county, in misappropriating the sum of $3,000 then in his custody and control, belonging to the Industrial Benefit Association, of which he was then president, and feloniously appropriated, so it is charged, to the use of himself and one M. E. Galvin, and under such circumstances as to constitute stealing. The indictment also contains a count for larceny in the first degree at common law.
Defendant was tried and a verdict of guilty as charged in the indictment was rendered. A motion for a new trial was made and denied and on January 4, 1898, he was sentenced to a term of imprisonment and on the same day a notice of appeal was filed. A certificate of reasonable doubt seems to have been granted, but nothing further done until the present district attorney brought the appeal to the attention of this court and
asked to have it disposed of. The case does not seem to be complete, although it appears that the record contains correct copies of the indictment, evidence, exhibits (except such as cannot be found) and the judgment roll, orders, notice of appeal and case on appeal.
It is contended on behalf of the appellant that upon the undisputed evidence he was not shown guilty of the crime of larceny, and that pre-judicial errors were committed on the trial.
That the money belonged to the Industrial Benefit Association is not in dispute, and I think the evidence establishes the fact that the money was paid out by the defendant or by his procurement, upon a valid claim owing by the association. The ground upon which the charge of larceny is founded is that the $3,000 was taken from a fund which could not properly be used for that purpose, as will more fully appear later.
The Industrial Benefit Association was a domestic mutual benefit insurance company. It commenced business in 1885, with its principal office in Brooklyn. In 1889 the defendant was elected its secretary and its principal office was moved to Syracuse. He was made its manager and a contract entered into between him and the association practically committing to him the entire management of it to January 1, 1900. It is unnecessary to follow in detail the business career of the association and the connection of the defendant with it. It is sufficient to call attention to the transactions which it is contended constituted the offense charged and the immediate surrounding circumstances.
It appears that the defendant and others associated with him advanced from time to time about $20,000 to the association to carry on its business, of which something over $4,000 was furnished by Galvin, mentioned in the indictment. In 1890 and 1891 the board of directors of the association, by resolutions, recognized and admitted the liability of the association for the moneys so advanced and directed the payment thereof out of the reserve fund of the association 'as now provided in the by-laws thereof, in installments from time ...