(202 N.Y.S.)

PEOPLE v. DOUD et al.

(Supreme Court, Special Term, Chautauqua County. December 28, 1923.) 1. Criminal law 97(1)—That money secured by artifice was raised in New York did not give that state jurisdiction of crime.

Where defendants and complainant were in Florida and while there defendants caused complainant to believe that they could manipulate the Stock Exchange, and complainant came to New York and raised money, with which he returned to Florida, and while there defendants by artifice secured the money, held that, under Penal Law, § 1930, defendants cannot be punished in New York, as no part of the crime was committed there.

2. Criminal law 20-No Innocent act can be part of crime.

No innocent act can be a part of a crime, even though an innocent person might perform a part of the crime and do a wrongful act. Martin J. Doud and others were indicted for grand larceny in the first degree. On motion to dismiss the indictment. Motion granted. Glenn W. Woodin, Dist. Atty., of Dunkirk, and Lanza, Bell & Montesano, of Buffalo, for the People.

Samuel M. Fleischman, of New York City, for defendant Doud.

HINKLEY, J. This is a motion to dismiss an indictment for grand larceny, first degree, found against the defendant Martin J. Doud, alias Harris, etc. The basis of this motion is that no part of the crime alleged in the indictment was committed in the state of New York. While certain phrases in the indictment might indicate that the alleged false representations and larceny were committed in New York state, the entire facts are presented to the court at this time by inspection of the minutes of the grand jury which found the indictment. An inspection of these grand jury minutes was heretofore granted to defendant's counsel, who concedes the facts therein alleged for the purpose of this motion.

[1] The main question involved in the motion, and upon which a determination of this motion depends, is whether or not any portion of the crime alleged in the indictment was committed within the state of New York. Section 1930 of the Penal Law provides as follows: "The following persons are liable to punishment within the state:

"1. A person who commits within the state any crime, in whole or in part; "2. A person who commits without the state any offense which, if committed within the state, would be larceny under the laws of the state, and is afterwards found, with any of the property stolen or feloniously appropriated within this state;

"3. A person who, being without the state, causes, procures, aids, or abets another to commit a crime within the state;

"4. A person who, being out of this state, abducts or kidnaps by force or fraud, any person contrary to the laws of the place where such act is committed, and brings, sends or conveys such person within the limits of this state, and is afterwards found therein;

"5. A person who, being out of the state and with intent to cause within it a result contrary to the laws of this state does an act which in its natural and usual course results in an act or effect contrary to its laws."

The complainant, Ira P. Watson, fell among thieves while on a visit to Florida for his health. He formed a chance acquaintance upon the

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street with the above-named defendant Doud, who will be hereinafter referred to in this opinion under his alias of Harris. Harris formed a pretended friendship and intimacy with Watson, and met one day a man named King, who, Harris said, was an acquaintance of his from his home town of Rockford. Ill. King pretended to be a manipulator of the stock markets, and in the presence of Watson took $10 of Harris' money to speculate upon the market, and brought back to Harris an additional $20 as his winning. Later King produced in the presence of Harris some $40,000, which he claimed he had won as an operator for some concern upon the Stock Exchange. King pretended not to know Harris very well, and asked Watson if Harris was a man whom he could trust. King later gave to Harris the sum of $1,400, and wrote on a slip of paper what Harris was to do upon the Stock Exchange with the $1,400. Later Harris came back, and in the presence of Watson informed King that he had won $121,000. King then gave to Harris a ticket to take to the Stock Exchange to get the money. Harris returned to King and Watson, and brought with him a man whom he introduced as Mr. Allen, the cashier of the Stock Exchange. Allen produced the sum of $121,000, but claimed that he could not turn that money over to King, unless King could establish himself, as they called it, at the bank. They made Watson believe that they could not receive the $121,000 unless they could produce and exhibit to the cashier of the Stock Exchange $60,000 in cash to prove to the Stock Exchange that they were in possession of that amount of money at the time they won the larger sum, so that, in the event they had lost, they could have paid their losses.

Up until this time Watson had had no part in the transaction. It was then suggested to Watson that, if he could produce $24,000 as his share of the money to be exhibited to the cashier of the Stock Exchange, he would be declared in for a share of the $121,000 which had been Watson tried to obtain the money by telegraph, and then, at the suggestion of the defendants, went to Fredonia, where he raised the sum of $24,000. He then telegraphed from Dunkirk to Harris in Florida that he had raised 24 barrels, which was their code to indicate that he had $24,000. Watson had mortgaged and borrowed this money, which included his savings of a lifetime. He is a man. 56 years of age. He took this money in the form of two New York drafts to Florida, and the defendants kept in touch with him until the drafts were cashed. It was arranged then that Harris was to take the money over to the Stock Exchange. Before he left, King gave him some instructions to operate for him upon the Stock Exchange. When Harris returned, he told King that he had used, not only King's money, but Watson's $24,000, to operate on the Stock Exchange, saying that, if it was good enough for King's company, it was good enough for them. King told him that he had not operated properly, and had lost all of the money. King then took Harris by the neck and threw him out of the room. That was the last that Watson ever saw of his $24,000. Upon the promise of King that he would make good to Watson, Watson went to the Statler Hotel in Cleveland, where he waited for some time for King to make good. Some time after this transaction

(202 N.Y.S.)

the above-named defendant Doud, alias Harris, was arrested by chance upon a train passing through New York.

It is apparent from the above statement that no defendant came into New York state during the progress of the crime. Upon the false representations of the defendants, and at their instigation, the complainant, Watson, came to Fredonia from Florida and raised $24,000, sending a telegram to Harris that he had done so. The complainant then took this $24,000 to Florida, which is the only connection in any way between the entire affair and the state of New York.

The forlorn position of the complainant is most pathetic. By the silliest artifice imaginable, this man, well along in years, was robbed of a life's saving. With one of the thieves now in jail, a court would be justified in overlooking any technicality in order that the thief be brought to justice. Notwithstanding the feeling of the court, it is apparent that, in order to sustain this indictment, this court must exceed its jurisdiction. It must be borne in mind that no part of the conspiracy, no representations, no wrongful act, no taking of any money, and no act of any defendant, took place in New York state. The only relation which New York state bore to the transaction was the act of the complainant himself in coming here, raising money, and telegraphing from Dunkirk to the defendant in Florida.

[2] Counsel for the prosecution contend that whatever the complainant did was done by the superior will of the defendants; that the act of the complainant in coming to New York state was therefore the act of the defendants. If we concede that, we still fall short, because the act which the complainant did in coming to New York state was not wrongful, and therefore not a part of the crime. This is the real test. Every act of a defendant in furtherance of a crime is wrongful. There can be no innocent act upon the part of the defendant which is part of the crime. The suggestion of counsel for the prosecution that every act which could be proven upon the trial is part of the crime is not logical. For instance, it might be shown upon a criminal trial for robbery that the complainant was walking innocently down the street with money in his pocket. That would be proper evidence upon the trial, but would not be in any way a part of the crime. As indicated before, no innocent act can be a part of the crime, even though an innocent person might perform a part of the crime and do a wrongful act. In the case of People v. Arnstein, 211 N. Y. 585, 105 N. E. 814, the wrongful act of conspiracy took place in New York state. In the case of Adams v. People, 1 N. Y. 173, the innocent agent performed a wrongful act in obtaining money upon fraudulent receipt in New York state.

The court is asked in this case to hold that the innocent act of the complainant in raising money for the purpose of being robbed was a part of the crime which would give this state jurisdiction. No authority for such a holding has been produced, and the court does not believe that any court could or would sustain such a ruling. The court is informed that, upon the release of the defendant under this indictment, he is to be taken immediately to the state of Florida, in which state, in the judgment of this court, the entire crime was committed. Motion by defendant Doud to dismiss indictment granted.

(207 App. Div. 76)

PEOPLE v. FINCH, PRUYN & CO., Inc., et al.

(Supreme Court, Appellate Division, Third Department. November 15, 1923.) 1. Woods and forests 8-State's acceptance of deed reserving timber held not unconstitutional.

Acceptance by the state of a deed reserving the right to enter and remove timber for 10 years in settlement of an action by the state to compel conveyance of the lands, title to which defendants fraudulently acquired with knowledge of an agreement by prior owner to convey to the state, was not a violation of Const. art. 7, § 7, prohibiting sale of timber on state lands.

2. Attorney general 6-Authorized to compromise action to compel conveyance of lands to state.

The Attorney General has power under the common law, if not under Executive Law, § 62, to settle an action to compel conveyance of lands to the state by accepting a deed reserving the right to remove timber thereon for 10 years.

3. Estoppel 62(2)—Authorized acts of state officers may estop state.

Authorized acts of state officers may operate as an estoppel against the state.

4. Woods and forests 8-Consequences of grantor's failure to remove timber under reservation in deed must be borne by grantors.

Under a deed to the state reserving the right to remove timber for 10 years, grantors would have been entitled to remove the timber without fear of civil or criminal prosecution, and the consequences of their failure to do so because their title to the timber was challenged by a state official must be borne by themselves.

Appeal from Special Term, Warren County.

Action by the People of the State of New York against Finch, Pruyn & Co., Inc., and others. From an order granting the motion of defendant first named to set aside a stipulation and deed made and delivered by defendants in settlement of the action, plaintiff appeals. Reversed, and motion denied.

Argued before HENRY T. KELLOGG, VAN KIRK, HINMAN, HASBROUCK, and McCANN, JJ.

Carl Sherman, Atty. Gen. (Roy Lockwood, Deputy Atty. Gen., of counsel), for appellant.

George N. Ostrander, of Albany (William T. Moore, of Mechanicsville, of counsel), for respondents.

HASBROUCK, J. In 1905 and prior thereto one Zenas Van Dusen held title to and was the owner of a strip of land 45 chains wide aross the northerly end of township 13 in Totten and Crossfield's Purchase, in the county of Warren, N. Y. The state employed one Frank L. Bell to investigate the title and to make recommendations as to its purchase. Having found the title in Van Dusen, he was authorized by the forest, fish and game commission to acquire it for the state. He employed William H. Rice, because he was a cousin of Van Dusen, to conduct the negotiations. They resulted in a deed of the property to Rice, who refused to convey to the state, and conveyed to several defendants his interest in the property. On or about the 11th day of August, 1908, the state brought an action to comFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.)

pel the defendants, accepting title based on the alleged fraud of Rice, to convey the lands in dispute to the state.

Answers were interposed by the defendants. On or about January 4, 1909, the action was settled. The evidence of the settlement is a deed by the defendant owners to the state of the lands in question. The state accepted the deed containing a reservation to the defendants of the soft timber down to 10 inches, the right to enter upon the land and remove such timber within 10 years, or the timber to become the property of the state. The state, too, as a condition of the grant, recognized the validity of the title of the defendants.

[1] About the year 1910, in another case, the people brought an action to vacate a judgment of November 8, 1904, had in an action wherein the people were plaintiff and the Santa Clara Lumber Company and others were defendants, in which they had judgment, with an award for damages which was based upon a stipulation of the parties and an order of the court. In the 1910 action the plaintiff, having suffered defeat in the original and intermediary court, succeeded in the Court of Appeals. People v. Santa Clara Lumber Co., 213 N. Y. 61, 106 N. E. 927. The principle invoked by the state was that, where the complaint in the action was based on an allegation of the ownership of land in the forest preserve, it could not, if such ownership existed, allow the timber thereon to be reserved, and thus suffered to be sold, removed, or destroyed. Const. art. 7, § 7. Upon the facts involved in the 1904 action, Collin, J., held in the 1910 action:

"Had the state, through its proper officers and agents, determined in good faith that it did not own the lands, it could constitutionally have abandoned its claim to them for that reason. It believed, however, and with reason and honesty, that it did own them, and so the fact may have been, although its title was not apparent or indisputably demonstrable. The fact that it was not finally determined or adjudicated that the state owned them did not justify the commissioner in disposing of them. He had no power of disposition in any event, inasmuch as ownership of the state destroyed his authority by virtue of the Constitution and lack of ownership withdrew them wholly from his jurisdiction." People v. Santa Clara Lumber Co., 213 N. Y. 61, 66, 106 N. E. 927, 928.

There are differences between the case at bar and the Santa Clara Case. There the action was based upon the ownership of the state of the lands in suit. Here it is not based on such ownership. It is based upon a claim of fraud in refusing to carry out an agreement. The complaint negatives ownership and seeks to obtain it. Inasmuch as there was no claim of ownership to the lands in question asserted by the state up to the time of the settlement, it must be apparent that the decision of the Court of Appeals in the Santa Clara Case furnished no precedent for the court at Special Term. The lands never having been in the ownership of the state, it was perfectly competent for it to receive a deed reserving the right of the grantors to remove certain timber. That timber could not become the property of the state until 10 years had elapsed under the terms of the deed.

[2] The claim asserted May 18, 1917, in the letter of Pratt to the defendants after the state had received the deed from the defend