Opinion
July 1, 1942.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and Harris, JJ.
Judgment of conviction reversed on the law and indictment dismissed. Memorandum: The indictment accused defendant of grand larceny in the second degree for having obtained from one O'Connor the sum of $500 by falsely representing: First, that defendant "could purchase for the said Michael O'Connor five thousand shares" of a certain stock; and second, "that he, the said Michael O'Connor, could make a profit," etc. The second statement, that a profit could be made, was not a statement of a presently existing fact; it was purely promissory. That part of the indictment does not even allege a crime. The first statement, that defendant could purchase for O'Connor the stated number of shares of the stock named, was clearly proven to be true by the People's own evidence. All concur. (The judgment convicts defendant of the crime of grand larceny, second degree.)