People v. Elliott

The indictment is in two counts, first, charging the forgery of a check on the Irving National Exchange Bank, dated December 28, 1911, for $8,250, purporting to be drawn by the Woodhouse Manufacturing Company, D. W. Woodhouse, Prop., and second, uttering the same knowing it to be forged. The fact that the instrument was forged is conceded as well as proved.

One Chester Errico, who was also indicted, had been for some time in the employment of the Woodhouse Manufacturing Company as bookkeeper and cashier. He was married and had children. He seems to have fallen into evil ways, to- have become addicted to gambling and to the opium habit. He consorted with a girl named Evelyn Curtis who admitted that she had been twice convicted of soliciting. He spent considerable time with her. The reason for this frequentation as stated by him was for the purpose of opium smoking. There is no doubt that their relations were meretricious. After the crime she went with him to Boston at one o’clock in the morning on the

Errico was the principal witness for the prosecution. He had pleaded guilty. He testified that through some considerable period prior to the twenty-eighth of December he had raised a number of checks of his employer and had caused to be cashed a number of other checks, the signature to which he claimed to have been forged by a friend of his by the name of Edward Slattery, and that the amounts so feloniously obtained aggregated some $3,000. He strenuously denied that he had over forged the signature on any of these checks and makes a nice ethical distinction between procuring a check to be forged, the raising of a check, and the forgery of the signature itself.

About the end of November Errico lost his salaried position, but was still continued in the employment of the company with the privilege of making outside sales, with the right to receive commissions thereon. A new bookkeeper was to be installed and Errico feared that his peculations could, no longer be concealed but would be discovered upon examination of the books. During those preceding months the defendant Elliott that a woman friend also addicted to the opium habit were intimates of Errico and the Curtis girl. Errico charges the defendant with inducting him into the habit. Errico testified that two weeks prior to the night of December twenty-seventh he fold the defendant that he was in a bad way down at the office with the books. “ He says to me, £ What do you expect to do ? ’ I says, £ Well, they have got a new bookkeeper down there and all the defalcations will come out now when he goes to draw a trial balance ’ and he spoke up and said, £ Well, supposing you put another big check over,’ he says, £ and you will not get any more for it than you will for the past that you have done.’ * * * So finally I agreed to it and I says to

The story told by both Errico and the Curtis woman is that on the afternoon of December twenty-seventh they were all at the Curtis woman’s flat and that the defendant left, saying he was going over to the house to get some pen points and things. Thereafter he came back again with a parcel. They continued to smoke opium, lying on the bed in her room. About twelve o’clock at night the defendant said it was time to get to work. He and Errico got up and went to work while the woman stayed in her own room. This parcel was opened and contained a check book with a number of checks and some pens. With the genuine check, the so-called model which Errico had given to the defendant, he went to work writing signatures on the checks. He kept at it for about two hours and a half. They were finally satisfied with one. Just at this time the ink bottle was upset and the Curtis woman came out of her room to clean up the ink, and according to her testimony she saw Elliott write the last signature which was pronounced satisfactory. There was discussion between Elliott and Errico as to the amount and $8,250 was agreed upon. Errico filled in the amount and the number of the check. The signature was made by a rubber stamp impression of the Woodhouse Manufacturing Company, and under that stamp Woodhouse’s written signature was put on by Elliott. The check was made out to cash. The next day about eleven-thirty o’clock Elliott met Errico at the Curtis woman’s flat and they went down town. Errico had been in the habit of attending to the bank business of the Woodhouse Manufacturing Company, both in depositing and cashing checks- and of course was known at the bank. It was arranged that the attempt should be made at a time in the day when Mr. Woodhouse was away from his

The present bookkeeper said that on the 28th of December, 1911, he saw the defendant come to the office between twelve and one o’clock. He asked if Mr. Woodhouse was in, “ I told him he had gone to lunch. * * * He stopped and thought a moment and then he asked me, ‘ Could I use your telephone? ’ And I said, ‘ yes, there it is, you can use it ’ and he talked to someone for a few minutes. * * * He called up someone and was talking and then he says, ‘ what’s the number of this telephone? ’ I told him and he says, ‘ Well, the party I want to talk to is out, so he will call me up here in a few minutes.’ He waited around there for about ten minutes for the man and he says, ‘ I guess that party ain’t going to call me up; I will come in again and see Mr. Woodhouse.’ That was all; then he went out.”

The office of the Woodhouse Manufacturing Company is about three short blocks from the Irving National Exchange Bank. Errico presented the check at the bank and received six $1,000 bills, four $500’s and five $50’s, and shortly after coming out of the bank met Elliott, who said: “ ‘ Did you get the money? ’ I says, ‘ I did,’ he says, ‘ I can’t hardly believe it.’ ” And they started in a devious way uptown, first redeeming a ring from a pawnbroker and then buying a couple of dollars’ worth of opium. Elliott said: “Now don’t let nobody touch you for the money on the way up.” Errico handed the money, to Elliott, who slipped it into his glove, and they went back to the Curtis flat, where Elliott gave Errico one $1,000 bill, two $500’s and five $50’s, $2,250 in all. Later that night Elliott told Errico he had given $1,000 to his brother “ to hold for me in case both of us drop, and we will have something to

So far as the count for uttering is concerned, the appellant claims that while there may be some evidence in the alleged identification of the bookkeeper and his testimony as to the defendant’s presence in the office and hanging around the telephone at the time of the cashing of the check at the bank, yet it is not enough; that the cross-examination showed the impossibility of a real identification, and that it is so slight a circumstance that the jury ought to have been instructed to acquit, assuming that the other two witnesses, Errico and Curtis, were accomplices. •

But there were other matters bearing on this count. When he was arrested the officer said: “ I says, ‘ I come here to lock you up.’ He says, ‘ What for? ’ I says, ‘ they charge you with acting in concert with Errico, putting over that check for $8,250.’ * * * Q. What did he say to that? A. He says, ‘ I did not put it over.’ Well, I says, ‘ they claim that

The important question is as to the status of Evelyn Curtis. The defendant claims that she was an accomplice, that the jury should have been so instructed as matter of law, and that without her testimony no conviction could be had, it being, of course, admitted that Errico was an accomplice in the crime of forgery. The court declined to charge that the Curtis woman was or was not an accomplice, but left it to the jury as a question of fact for them to determine, charging fully as follows : “ The defendant’s counsel claims that the woman Curtis is an accomplice. * * One who aids and abets in the commission of crime, one who advises, counsels, procures or commands another to commit crime, is an accomplice. Now, was that woman an accomplice? Did she aid and abet in the commission of this crime ? Did she procure the act to be done ? Did she advise the act to be done? Did she counsel that to be done? Is there anything in this evidence that would bring her within the provisions of section % of the Penal Law, as I have read it to you? You let your memories go over the evidence from one end to the other. If you find anything in this evidence that she counselled the drawing of the check, or she advised it or procured it to be done, commanded it to be done, why then of course you would be justified in finding that she was an accomplice; but if you cannot find any of these elements in it, you could not find she was an accomplice; she was just merely a witness, in other words, and her testimony need not be corroborated if she was a mere witness. It depends upon the intrinsic credibility of the testimony itself, and of the woman herself. Now, she says that she was called in to wipe

She denied that prior to the transaction she had any knowledge of the intended crime or any participation therein; that while, having been called in at the time of the upsetting of the ink, she did see those checks, and did see Elliott sign, yet she did not know what the purpose was and had nothing to do with it. Of course she admits that after the perpetration of the crime she did go to Boston and did live with Errico on the proceeds thereof, but the district attorney claims that such facts, after the event, did not make her a principal and accessory before the fact or an accomplice; that at best she was an accessory after the fact and that the test is, could she have been convicted if indicted herself for the forgery or uttering.

In People v. McGuire ( 135 N. Y. 639 , 10 N. Y. Crim. 557 ) a man and a woman were attempting to swear upon each other the perpetration of a murder. The question came up as to the status of a third person named Brazington. The court said: “A distinct confession of his guilt [that is, McGuire’s], made by him to Brazington was sworn to by the latter. He cannot be regarded as an accomplice in the commission of the crime.

In People v. Zucker ( 20 App. Div. 363 ; 14 N. Y. Crim. 464 ; affd. on opinion below, 154 N. Y. 770 ) the appellant was convicted upon the testimony of a witness, Schoenholz, of arson, who swore that he set fire to the premises and that he was employed by Zucker to do so. The question was as to the corroboration of the statements of this witness. The court said: “ The record contains corroborating evidence, and it is to be found in the testimony of the witness Meyers, who swore to a conversation between himself and Zucker, the prisoner, which conversation took place at about the exact time the fire occurred. * *' ® It is claimed that this evidence is subject to the same criticism as that made of Schoenholz’s, namely, that Meyers also was an accomplice. I do not think that Meyers can be regarded as standing in that relation to Zucker. He

In People v. Bright ( 203 N. Y. 78 , 26 N. Y. Crim. 377 ) Bartlett, J., writing for an unanimous court, said: “ ‘ To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an accessory before the fact.’ (People v. Zucker, 20 App. Div. 363 , 365; affd. on opinion below, 154 N. Y. 770 .) There is no view of the evidence which would have justified the jury in convicting the witness of the crime of which they found the defendant guilty.”

In People v. Elliott ( 106 N. Y. 288 , 7 N. Y. Crim. 126 ) the defendant was indicted for the crime of forgery in the second degree, charged as a second offense, in uttering a forged draft purporting to be drawn by a Montreal bank on the National Bank of the Republic of New York. The principal evidence against him at the trial was that of an accomplice, and it was claimed on his behalf that the testimony of the accomplice was not sufficiently corroborated. The General Term held that the testimony of the accomplice was not sufficient corroboration, and on that ground reversed the conviction and granted a new trial. The Court of Appeals, Earl, J., writing, reversed, and in regard to evidence that the defendant and the accomplice were acquaintances and had been seen together in Rochester and other places without explanation of his presence and various slight things of that kind, the court

The judgment should be affirmed.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment affirmed.