Opinion
Submitted May 2, 1883
Decided May 11, 1883
William F. Kintzing for plaintiff in error.
John Vincent for defendant in error.
Upon the application to postpone the trial of the indictment against the prisoner, there were circumstances to excite suspicion in the mind of the court that the application was not made in good faith. There had been a long delay, as appears from the facts, stated by the public prosecutor, which were not contradicted, and the proposition of the court to take the testimony of the absent witness at his residence was a fair one, and would have given the prisoner the benefit of the testimony and should have been acceded to by the prisoner's counsel. Although it is always desirable that a witness should be present instead of his testimony being taken in writing, yet under the circumstances presented we do not think any just ground of complaint exists for refusing to postpone the trial on the ground of the absence or the inability to procure the personal attendance of the witness. It is enough to justify the condition imposed that the judge had reason to suspect the application was not made in good faith. It may be added that upon a writ of error no exception lies to a refusal to postpone a criminal trial by reason of the absence of witnesses. ( Eighmy v. People, 79 N.Y. 546.)
There was no error in admitting in evidence the deed offered by the prosecution. The objection is that the boundary lines easterly and westerly contained in the deed were left out of the indictment, and that there was no seal. The indictment, it is true, does not in terms allege that the deed was sealed. It is so stated, however, in the attesting clause of the deed as set forth in the indictment, and the allegation that it was a deed was a substantial averment that it was under seal. Such a conveyance imports a seal, and it may be assumed, therefore, that the deed set out in the indictment contained all that was required to constitute a valid conveyance The omission of two of the boundary lines from the description in the deed set forth in the indictment did not constitute a material variation and was not important, inasmuch as the copy in the indictment shows inferentially that the northerly and southerly lines were fifty feet in length, and as the easterly and westerly points were correctly given the description was not radically deficient. The indictment stated that the lands had been staked out, and the length and breadth were given as stated in the deed itself. No mistake could have been made by the prisoner by reason of the omission, as the copy was in substance and effect the same as the one he had executed.
It is claimed by the appellant's counsel that the court erred in refusing to take the case from the jury. This position is based upon the ground that the evidence established the mortgage was assigned to the prisoner and his wife on the 23d day of October, 1872; that it was conceded the prisoner's wife owned the fee of the land that was purchased at the time the representations were made; that the mortgage and fee in the land having merged the property was free and clear. Assuming the correctness of this position, we think there was sufficient evidence to authorize the court to submit the case to the jury.
It was alleged in the indictment as one of the false representations made by the prisoner, to one John Breen, who was an illiterate person and unable to read writing, that he owned four lots of land north of the Long Island railroad, that a deed purporting to be executed by him and wife to the said Breen was a deed and conveyance of the said four lots, that the four lots were set forth and described therein, and that Breen, believing the representations and that the instrument was a conveyance of said four lots, and being deceived thereby, paid to the prisoner the sum of money mentioned in the indictment. The evidence shows that the witness was not able to read the deed and that the prisoner read it to him falsely, in that the property was situated one hundred and seventy-five feet north of the center of the Long Island railroad, and the prosecutor testified that he would not have paid the money if he had not believed the deed to contain a description of the property which had been exhibited to him by the prisoner as the property to be sold and which was situated on the north side of the railroad. There was proof to show the representations, in regard to the location of the property, were false, and that the allegation set forth in the indictment concerning the same was true. Where one or more pretenses are proved to be false, and the pretenses thus proved to be false are sufficient per se to constitute she offense, the accused will be convicted notwithstanding that the public prosecutor fails in proving to be false other pretenses alleged in the indictment. ( Butler v. Maynard, 11 Wend. 552; Bielschofsky v. People, 3 Hun, 40.) Whether the land was free and clear from all incumbrances was, therefore, of no consequence, if the intentional misreading of the deed induced the prosecutor to part with his money, and a case was made out independent of the false representations alleged to have been made in this respect.
It follows that there was no error in refusing to take the case from the jury or in refusing to direct the acquittal of the prisoner.
The judgment should be affirmed.
All concur.
Judgment affirmed.