People v. Tower — 10 N.Y. Crim. 95

Majority

p. 95

Supreme Court-General Term-Fifth Department.

January 22, 1892.

PEOPLE v. STEPHEN TOWER.

( 42 St. Rep. 164 .)

Headnote

it'. Forgery—Second degree. ‘

Forgery in the second degree, under section 511, is distinct from the same degree under 521 of the Penal Code.

2. Same—Indictment—Waiver. 1

An objection to their joinder in one count in an indictment is-waived by a failure to demur to it on that ground.

3. Trial—Arraignment.

An objection that the defendant was not arraigned upon, and did not plead to, the indictment, cannot be raised for the first time-after conviction.

Appeal by the defendant from a judgment of the Niagara, loounty sessions, entered on verdict of a jury, December 19,1890,. convicting him of the crime of forgery in the second degree.

Richard Crowley, for appellant.

P. F. King, for respondents.

J. — The indictment -charged the defendant with feloniously writing or- endorsing the name of "John Diez upon the back of a promissory note, and of uttering and putting off the same to one Sidney S. .Cross. The note was dated at Lockport, N. Y., April 14, 1890, and is as follows: «1156.00.

“Seven months from date I promise to pay to the order of E.A. Longstaff, one hundred and fifty-six dollars at the Merchants’ Bank, Lockport, N. Y. Value received, with interest. ■ “(Signed) STEPHEN TOWER.”

1 On the back of the instrument was the genuine endorsement in writing of one E.

p. 96

uiary demand purported to have been created, and by which" endorsement the said Diez might be bound, affected or injured in 'his property, and that, with intent to defraud the said John 'Diez feloniously, the defendant did fraudulently make, forge, utter and put off the said .note and endorsement, as true, to one Sidney S. Cross, against the form of the statute, etc.

The indictment, in the accusing part thereof, charges the defendant with the crime of forgery in the second degree. This ¡crime, Penal Code, § 511, is distinct and separate from the crime of uttering and putting off forged paper, under section 521, though each crime is forgery in the second degree. From this it is argued, by the learned counsel for the appellant, that the two crimes ought not to be joined in one count. If there existed any objection to the indictment of this nature, we are of the opinion that the same was waived by the failure of the defendant to demur to it on that ground. Code Grim. Pro. §§ 323, 331. The verdict was, that the defendant was guilty as charged in the indictment. Being general in its terms, it was, under the indictment, a finality in respect to both the making and the uttering of this forged paper; so that the defendant cannot again be convicted of the crime of forging or uttering it. ' ■ :

Other points are made in the brief of the learned counsel for the appellant, but they do not, in our judgment, merit special ■attention. They relate to the failure of the case to show that .the def endant was ever arraigned upon the indictment, or that he pleaded thereto. These matters were waived by the defendant going to trial upon the indictment upon the merits of the charge, and cannot be raised for the first time after a conviction, inasmuch as there was nothing in these omissions which tended to prejudice the rights of the defendant, and, consequently, they should be disregarded. Code Crim. Pro. §§ 285,684; People v. Johnson, 110 N. Y. 134 ; 16 St. Rep. 846 ; People v. Myers, 2 Hun, 6 ; People v. Bradner, 107 N. Y. 1 ; 10 St. Rep. 667 ; People v. McHale, 39 id. 758 .

We have looked into the testimony contained in the case upon ■the merits, and find that there was ample evidence to sustain the verdict and the judgment of the court entered thereon, upon the ground that the defendant feloniously uttered and put off as genuine the forged endorsement of Diez.

p. 97

It follows, therefore, that the judgment and conviction should foe affirmed.

Judgment and conviction appealed from affirmed:

DWIGHT, P. J., and LEWIS, J., concur.

Cases cited

People v. Johnson 110 N. Y. 134 N.Y. 1888-06-19 p. 96
People v. Bradner 107 N. Y. 1 N.Y. 1887-10-04 p. 96