Lesser v. . People , 73 N.Y. 78 ( 1878 )

The check, which was passed off upon the complainant, was dated on the twenty-ninth of August, the transaction taking place on the twenty-eighth, and the defense is placed upon the point that the delivery of a post-dated check does not constitute a representation that the money to meet it is in the bank at the time of delivery of the check, but simply an undertaking that it shall be there at the maturity of the check.

If there had been no representation made except by the delivery of the check, and the prosecution rested wholly on the allegation that this was a representation that the money was in bank, the point which the prisoner's counsel seeks to raise would be in the case, and the circumstances that the check was not drawn by the prisoner, but by a third party, and was post-dated, would be very material. But we do not think that the case turns upon the point argued. The indictment charges that the prisoner represented, among other things, that the check was good and a valuable security, and of the value of $255; whereas it was not good, or of any value whatever. The evidence of the prosecutrix was that the prisoner and his companion Melville came together to her residence, and after bargaining for the goods, and agreeing upon the price, Melville went out, as he said, to get the money to pay for them, leaving the prisoner there; that the prisoner represented Melville as a man in business, having two stores, etc.; that Melville returned with the check, and at the time of passing it off to prosecutrix and obtaining the goods, in answer to a remark of the prosecutrix's sister that the check was dated the twenty-ninth, said, "it is too late to go to the bank to-day" (it being then half-past three in the afternoon); that at the same time the prisoner said that the check was good, and also that Steinbach, the maker of the check, "had a business." The sister testified that, in answer to her remark about the date, Melville said, that it was too late to go to the bank, and he dated the check for to-morrow. No such person as the drawer of the check kept any account in the bank on which it was drawn, and it was admitted on the trial that the check was worthless. The circumstances tended to show that the transaction was a device to defraud the prosecutrix of her goods, and that Melville and the prisoner were acting in concert. They together took the goods away. No explanation or defense was offered by the prisoner on the trial, nor did he show that there was any such person as Steinbach, or what were his own relations with Melville, but he relied wholly on the fact that the check was post-dated.

Under the circumstances we think that the evidence, although meagre, was sufficient to justify a finding that the prisoner represented that the check was good, and the maker a man of substance; while he knew that it was worthless, and was a false token got up for the purpose of defrauding the prosecutrix, and that he and Melville were confederates, and jointly obtained the goods. The question of the prisoner's guilt was fairly submitted to the jury, and there is no legal error in the conviction.

The judgment should be affirmed.

All concur.

Judgment affirmed.