People v. Laurence , 73 N.Y. Sup. Ct. 574 ( 1893 )

DWIGHT, P. J.

We are of opinion that the indictment in this case charges no offense. It purports to chaige the crime of larceny committed by means of false pretenses and representations, but the facts stated do not constitute that offense. The pretenses and representations alleged are in the nature, only, of promises, or agreements, and relate wholly to future actions or events. It is elementary that not even fraud can .be predicated of representations concerning the future. Gray v. Palmer, 2 Rob. 500, affirmed court of appeals, 41 N. Y. 620. Neither at common law nor under the Penal Code of this state do such statements constitutue false pretenses. Ranney v. People, 22 N. Y. 413; People v. Blanchard, 90 N. Y. 314. But the district attorney argues that, though the allegations purporting to" charge false pretenses are not sufficient for that purpose, they may be treated as surplusage, and the residue will be sufficient to charge larceny at common law; and this, we may suppose, was the effect of the decision of the "learned trial court, given in response to a motion to direct a verdict of not guilty, in the following terms: “We have reached the conclusion that this indictment is sustainable as an indictment vi et armis; not as an indictment for obtaining the property by false pretense.” And so, perhaps, it'might have been, if, as the district attorney assumes, it anywhere charged the defendant with obtaining possession of the property by means of the alleged false pretense, and afterwards, with felonious intent, appropriating it to his own use; or even if it anywhere charged him in .general terms with stealing, taking, and carrying away the property, without making it a part of the charge that it was done by means of the alleged false pretenses and representations. But such is not the case. There is the charge that the defendant "obtained possession of the property by the false pretenses and representations alleged; but this is coupled only with the charge that possession was thus obtained with the intent to .appropriate it to his own use, and there is nowhere the allegation that, after so obtaining the possession, he did actually so appropriate.. So, also, it is charged, in the last paragraph of the indictment, that the defendant did steal, take, and carry away the property in question, “contrary to the form of the statute,” etc., but this, it is expressly alleged, he did “by means of the false pretenses and representations aforesaid.” It is impossible to find in the indictment any charge that the defendant committed the crime of larceny, except by means' of the alleged false pretenses and representations therein described; and since those pretenses and representations were not of a character upon which crime could be predicated, we conclude that no crime was charged in the indictment. The judgment and conviction should be reversed, and the defendant discharged.

, Judgment and conviction of the court of sessions of Niagara county reversed,, and the defendant discharged. All concur.