People v. Carlesi

The defendant was indicted as a second offender for the crime of forgery in the second degree (Penal Law, § 887; Penal Code, § § 511, 512) and uttering a forged instrument (Penal Law, § 881; Penal Code, § 521). The jury found him guilty “ of forgery in the second degree as a second offense. This appeal is from the judgment of conviction by which he was sentenced to imprisonment in a State prison for the term of twelve years and eleven months.

It was proved,that on or about June 15, 1907, the defendant got possession of a genuine check of the Piss, Doerr & Carroll Horse Company by cashing it for the holder; that he procured facsimile lithographed blanks to be made, filled in one of the blanks for $3,200, and caused it to be deposited in a bank by a third party and the proceeds to be drawn out. The signature on the forged check was traced from that on the genuine check, which remained in the defendant’s possession until July 17, 1907. The forged check was made and uttered on July ninth. While the evidence consisted principally of the testimony of accomplices, that testimony was strongly corroborated by the fact which was established by independent evidence of the possession by the defendant of the genuine check which was on a special lithographed form and of which the forged check was a facsimile, except for date, amount and name of the payee. That fact tended directly to connect the defendant with the commission of the offense, and the proof of it did not depend upon expert testimony as is asserted by the appel

The appellant urges, however, that he was improperly convicted as a second offender. The indictment charged that the defendant was convicted on the 20th day of December, 1895, at a Circuit Court of the United States of America for the Southern District of New York, of the crime of selling and having in his possession counterfeit silver dollars upon an indictment which charged that the defendant and others “ did unlawfully and feloniously, and with intent to defraud some person unknown, sell, utter and publish a certain falsely made, forged and counterfeited coin, in resemblance and similitude of the silver coin of the United States, called and known as the standard silver dollar, * * * and within the jurisdiction of the court last aforesaid, feloniously and with intent to defraud some person unknown did have in their possession a certain falsely made, forged and counterfeited coin, in resemblance and similitude of the silver coin of the Unit.ed States, called and known as the standard silver dollar, * * * well knowing the same to be false, forged and counterfeited,” and that he was sentenced by said court to be imprisoned in the Monroe County Penitentiary for the term of three and one-half years, and to pay a fine of one dollar. The' defendant conceded the previous conviction as alleged in the indictment and put in evidence a pardon granted to him on October 3, 1904, which recited the fact of his indictment, his conviction on a plea of guilty, his sentence; that he had served his term of imprisonment, and, after earning all allowances for good conduct, was discharged on September 10, 1898, and had since conducted himself in an exemplary manner, and concluded as follows:

“ Now, Therefore, be it known, that I, Theodore'Roosevelt, resident of the United States of America, in consideration of

the premises, and divers other good and sufficient reasons, me thereunto moving,

“ Do hereby grant unto the said Charles Carlesi a pardon and restore his civil rights.”

Of course, the principal, if not the sole, purpose of the pardon in this case was to restore to the convict his civil rights. We prefer, however, to put our decision on the broad ground that the first conviction may, notwithstanding the offense be pardoned, be the basis for a conviction under section 1941 of the Penal Law, which provides:

“ A person, who, after having been convicted within this State, of a felony, or an attempt to commit a felony, or of petit larceny, or, under the laws of any other State, government, or country, of a crime which,, if committed within this State, would be a felony, commits any crime, within this State, is punishable upon conviction of such second offense, as follows: * * *”

The appellant urges two propositions: (1) That the first offense as defined by section 5457 of the United States Revised Statutes was not a felony as defined by the laws of this State (Penal Law, §§ 881, 894), and that, therefore, the defendant could not be convicted as a second offender perforce of said section 1941; and (2) that the prior conviction could not after a pardon be the basis of a conviction of a subsequent crime as a second offense.

Said section 5457 of the United States Revised Statutes provides: “ Every person who falsely makes, forges, or counterfeits, or causes or procures to be falsely made, forged or counterfeited, or willingly aids or assists in falsely making, forging, or counterfeiting any coin or bars in resemblance or similitude of the gold' or silver coins or bars which have assay-offices of the United States, or in resemblance or similibeen, or hereafter may be, coined or stamped at the mints and tude of any foreign gold or silver coin which by law is, or

Section 881 of the Penal Law of this State (formerly Penal Code, § 521) provides:

“ A person who, knowing the same to be forged or altered, and with intent to defraud, utters, offers, disposes of or puts off as true, or has in his possession, with intent so to utter, offer, dispose of, or put off:

«* * *

“ 2. A forged coin; or,

« g * * *

“ Is guilty of forgery in the same degree as if he had forged the same.”

Section 894 of the Penal Law (formerly Penal Code, § 526) provides:

“ A person who has in his possession a counterfeit of any gold or silver coin, whether of the United States or of any foreign country or government, knowing the same to be counterfeited, with intent to sell, utter, use, circulate or export the same, as true or as false, or to cause the same to be so uttered or passed, is punishable by imprisonment not more

than five years, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The argument is that there is a distinction between possession with intent to defraud and possession with intent to utter. That distinction is too nice, and in any event the first conviction was of “ selling and having in possession.”

The second proposition is based on the following language of Mr. Justice Field, speaking for the majority of the United States Supreme Court in Ex parte Garland ( 4 Wall. 333 , 380), viz.: “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”

The appellant cites many cases in which that language has been quoted or referred to with approval, one case in which the precise proposition contended for by him seems to have been decided (Edwards v. Commonwealth, 78 Va. 39 ), and Bishop on New Criminal Law (Vol. 1, § 919), wherein the author takes the view that a second offense, the first one having been pardoned, is not a second but a first offense.

The precise point does not seem to have been decided in this State and, so far as the research of counsel - goes, has been decided in only two States, the Supreme Court of Appeals of Virginia in Edwards v. Commonwealth (supra) taking the appellant’s view, and the Court of Appeals of Kentucky holding to the contrary. (Mount v. Commonwealth, 63 Ky. [2 Duval] 93; Herndon v. Commonwealth, 105 id. 197.) The case nearest in point in this State is People v. Price ( 53 Hun,

Manifestly, the language of Mr. Justice Field, quoted supra, is to be read in its bearing upon the precise point before the court. The pardon of this defendant did not make “ a new man ” of him; it did not “ blot out ” the fact or the record of his conviction, and of course, the Supreme Court, in deciding that the Congress could not impinge upon the pardoning power of the Executive did not intend to hold that the Executive could blot out a solemn record of the judicial branch of government. (See Roberts v. State of New York, 30 App. Div. 106 ; 160 N. Y. 217 .) The pardon in this case merely restored the defendant to his civil rights. If it had been granted before his term of imprisonment had been served, it would also have relieved the defendant of that. But it did not obliterate the record of his conviction or blot out the fact that he had been convicted. (Matter of —, an Attorney, 86 N. Y. 563 .) It relieved the defendant of the consequences which the law attached to his offense. But the defendant is to be pun

The judgment of conviction should be affirmed.

Ingraham, P. J., McLaughlin and Dowling, JJ., concurred.

(concurring) :

I am of opinion that if the defendant had received a full unlimited pardon for the former offense it would have constituted an invulnerable shield against a subsequent conviction for a felony as a “ second offense,” pursuant to the provisions of section 1941 of the Penal Law, which requires a longer sentence in such cases; because that statute presupposes not merely a former formal conviction, which may have been vacated or reversed, but which stands unaffected, whereas such a pardon obliterates guilt and is equivalent to a verdict of

Judgment affirmed.