People v. Tower — 135 N.Y. 457

Majority

p. 457

The People of the State of New York, Respondent, v. Stephen Tower, Appellant.

Headnote

One T. Avas convicted of the crime of forgery in the second degree under an indictment Avhich contained a single count and charged that he “did make, forge and alter, and put off as true,” the indorsement of one D on a promissory note The evidence Avas conflicting as to Avhetlier the indorsement was written by defendant, but there was evidence which justified a finding that he wrote it or procured it to be Avritten, being present at the time, aiding and abetting the forgery, and it was not controverted that he uttered or offered to pass the note. Defendant’s counsel requested the court to direct a verdict in his faAror on the ground that the evidence did not warrant a conviction of the crime of which he was charged, and he moved for an arrest of judgment on the same ground. Both motions were denied. Held, no error; that as no demurrer Avas taken, the objection that two distinct offenses were

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charged in one count of the indictment will he deemed to have heen waived and did not constitute a ground for which the judgment could be arrested. (Code Grim. Pro. §§ 335, 467.)

(Argued June 17, 1892;

decided October 11, 1892.)

Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 22, 1892, which affirmed a judgment of the Court of Sessions of the county of Niagara entered upon a verdict convicting defendant of ■ the crime of forgery in the second degree.

The facts, so far as material, are stated in the opinion.

Pickard Crowley for appellant.

P. F. King for respondent.

It was proper to accuse the defendant of all the acts constituting forgery in the second degree in one count of the indictment. (Bishop’s Directions and Forms, § 462 ; Bork v. People, 91 N. Y. 13 ; People v. Every, 20 N. Y. S. R. 461.) If there is any formal defects in the indictment they have been waived. (Code Crim. Pro. §§ 285, 684; People v. Weldon, 111 N. Y. 569 ; People v. Williams, 18 N. Y. S. R. 403.)

The indictment contained but a single count, and charged that the defendant “ did make, forge and alter, and put off as true,” the indorsement of one Diez on a promissory note. The forging and the uttering of a forged promissory note, or of an indorsement thereon, are distinct and separate offenses, and each under one statute constitute the crime of forgery in the second degree, and subject the offender to the same punishment. (Code Civ. Pro. §§ 511, 521.)

On the trial the defendant’s counsel, at the close of the case on the part of the prosecution, requested the court to direct a verdict for the defendant on the ground “ that the indictment charged the defendant with having made and forged the signature of Diez, and that the evidence-does not warrant a conviction of the crime of which he is charged in, the indictment,”

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and after verdict he moved an arrest of judgment, stating the same ground. The motion to direct a verdict and the motion in arrest were denied, and the. exceptions to the rulings thereon present the only questions of law urged on this appeal.

There was a conflict of evidence upon the point whether the indorsement of Diez, which was admitted to he a forgery, was written by the defendant. But the evidence justified a finding that he wrote the indorsement, or procured it to be written, being present at the time, aiding and abetting the forgery. In either case he was properly charged as principal. (Penal Code, § 29; State v. Packer, 93 Mo. 88 ; Chidester v. State, 25 Ohio St. 433 .) It is not controverted that the defendant uttered or offered to pass the note with the forged indorsement. The principal point urged for a reversal is that the indictment is bad for duplicity in charging two distinct offenses in one count, viz., the forging and the uttering of the forged indorsement. It was held in People v. Rynders ( 12 Wend. 428 ) .that a count for forging an instrument could be united with a count for uttering the same instrument, in the same indictment, and that the prisoner might be properly triéd on both charges at the same time.

Sections 278 and 279 of the Code of Criminal Procedure prescribe that an indictment must charge but one crime and in one form, except that the crime may be charged in separate counts, to have been committed by different means, and that where the acts complained of may constitute different crimes, such crimes may be charged in separate counts. Under the Code it is perhaps doubtful whether the two offenses of forgery and uttering the forged instrument could be properly united in the same indictment. The crimes are distinct, Arising upon different acts, although each constitutes the offense of forgery in the second degree. But assuming that the offenses could not be united in the same indictment, the remedy is pointed out in the Code, and that is by demurrer. (Code Crim. Pro. § 323.) Where not taken by demurrer the objection is waived and does not constitute one of the grounds for which judgment can be arrested. (Code Crim. Pro. § 407.) It was

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formerly held that a prisoner was entitled to avail himself on motion in arrest of every objection in substance or form which could have been taken on demurrer to the indictment. (Nelson, J., People v. Wright, 9 Wend. 197 .) But the practice was not uniform, and it was held in some courts that the objection of duplicity was no ground for motion in arrest. (See Polinsky v. People, 73 N. Y. 72 , and cases cited.)

In this case there was no objection taken on the trial to the form of the indictment. The verdict was general, and the sentence was appropriate to either offense. Under the circumstances, the point raised is not tenable.

The judgment and conviction should be affirmed.

All concur.

Judgment affirmed.

Cases cited

People v. Weldon 111 N. Y. 569 N.Y. 1888-12-18 p. 458