People v. Anderson

The within application, pursuant to Code of Criminal Procedure, sections 527-529, is for a certificate that there is reasonable doubt in the belief of the court that the judgment of conviction of the defendant for the crime of forgery in the third degree, for which crime he has been sentenced to state’s prison for a term of from one to two years, will stand.

The indictment contains two counts, the first alleging in substance that on March 9, 1921, the defendant, then an officer' of the Anti-Saloon League, with intent to defraud, falsely made and caused to be made in a certain book of account known as the journal, belonging to and appertaining to the business of the Anti-Saloon League, a false entry set forth in full therein. This count was framed under that subdivision of the-

“ 1. Alters, erases, obliterates or destroys an account, book of accounts, record, or writing, belonging to, or appertaining to the business of, a corporation, association, public office or officer, partnership, or individual; or

“ 2. Makes a false entry in any such account or book of accounts; or,

“ 3. Willfully omits to make true entry of any material particular in any such account or book of accounts, made, written, or kept by him or under his direction,

“ Is guilty of forgery in the third degree.”

The remaining count in substance alleges that on said date the defendant, an officer and employee of the league, did feloniously falsify an account book known as the journal belonging to and appertaining to the business of the league by making the same false entry, and was framed under that subdivision of the Penal Law, section 889, hereinafter referred to as the first subdivision 1 thereof:

“ A person who:

“ 1. Being an officer or in the employment of a corporation, association, partnership or individuals falsifies, or unlawfully and corruptly alters, erases, obliterates or destroys any accounts, books of accounts, records, or other writing, belonging to or appertaining to the business of the corporation, association or partnership or individuals; * * *

A general verdict of guilty was rendered by the jury upon the submission of both counts of the indictment.

The proof shows that the false entry referred to in the indictment (People’s Exhibit 5-A) was made in the said

“ Mr. Potter: Transfer from salary account. O. B. Phil-

lips $4,400 to his expense account.

“ (Signed) William H. Anderson.”

By this entry the books of account were made to show that the sum of $4,400, which had been paid as salary and commissions to one Phillips, a collector employed by the league under written contract, for the year beginning May 1, 1920, and ending April 30, 1921, had been improperly or erroneously credited as a payment by the league of salary and commissions to him, and that the said sum should have been charged as a payment by the league to Phillips as and for expenses ostensibly but not actually incurred by him in its behalf; in other words, it was claimed that by the false entry the league’s books of account purported to show that out of the sum of $18,893.80 which had been properly paid and credited by the league toward Phillips’ salary and commission the sum of $4,400 had been erroneously credited as a payment thereon, and should have — and was, by virtue of such false entry — credited on the books as a payment by the league to Phillips for expenses, so that the books were so changed as to falsely show that there was still due, unpaid and owing to Phillips the sum of $4,400 for that fiscal year.

The general tenor of the court’s charge with respect to the law of the requirements of proof as to the two counts may be shown from the following part of the charge:

“ * * * Under the first count of the indictment an intent to defraud someone or some corporation is essential, and the defendant’s guilt cannot be established unless it appear from the facts and circumstances and the entries themselves or in some way that there was an intention on his part to defraud; that there was an intention when he made the alterations or directed that they be made; that there was an inten

tion on Ms part to thereby defraud someone or some corporation.

“ To establish the defendant’s guilt under the second count of the indictment it must appear that there was an intentional falsification or an unlawful or corrupt alteration of an account or books of account which false entry may be used — and I emphasize the words ‘ may be/ used to the prejudice of the rights of the corporation, the owner of the account books — the corporation in this case, or bind such corporation or is capable of being used as legal proof at some time, or in some way, or at some place, against such corporation.”

This excerpt sufficiently illustrates the law of the case as reiterated five different times during the court’s charge to the jury in substantially similar form, and the theory upon which the case was to them submitted.

The first specification of error relates to the charge of the court, where in respect to the first count, the jury were instructed as to the necessity of their finding an intent to defraud' somebody or some corporation in order to warrant a conviction thereunder in that the court misinterpreted the scope of the section by enlarging the character of the object of the intended fraud, and did not define that such intent to defraud should be limited to the Anti-Saloon League, the owner of the books in which the entries were made. Succinctly, do the second subdivisions 1 and 2 of the Penal Law, section 889, require to maintain an indictment that the fraudulent intent be directed against the owner of the books of account? Argument for that construction appears to center, or as may be more properly termed, to gravitate upon obiter in People v. Drown, 140 App. Div. 591 , adopted by the Court of Appeals in People ex rel. Isaacson v. Fallon, 202 N. Y. 456 , and reiterated in People v. Fish, 169 App. Div. 22 , as the settled doctrine that the object in view of the statute was to protect the corporation, association, partnership or individual who owned the books from-being defrauded by means of false entries or alterations therein..

Authority, both judicial and statutory, is replete in discountenance of the point raised. The history of the section, with its genesis in 2 Revised Statutes, 703, section 36, and 2 Revised Statutes, 675, section 46, providing that where intent to defraud is required, it shall be sufficient if such intent be to defraud anybody or an individual, and carrying the same ■directly into the provisions of the forgery section, later taken ever into the Penal Code, sections 718 and 721, and in turn incorporated into the present Penal Law, sections 3 and 921, would seem conclusive. The last provisions, exact counterparts of their ancestors in the above-mentioned sections of the Penal Law read:

“ § 3. Construction of terms. In construing this chapter [i.e., the Penal Law] or an indictment or other pleading in a •case observed, except when a contrary intent is plainly declared in the provision to be construed, or plainly apparent from the •context thereof: * * *

“ 5. Where an intent to defraud constitutes a part of a ■crime, it is not necessary to aver or prove an intent to defraud any particular person.”

The Penal Law, section 921, provides: “ Whenever, by any ■of the provisions of this chapter, an intent to defraud is required, in order to constitute an offense, it is sufficient if an intent appears to defraud any person, association or body politic or corporate, whatever.”

The explanation of the omission of these words verbatim in the Penal Code and Penal Law, theretofore contained in the statute against forgery, is expressed by the commissioners of the Code in their note to the draft of the act that “ the section in the text will also include the provisions of 2 Revised Statutes, section 46.” For all purposes, therefore, those provisions requiring that there be no intent to defraud any particular person must be read in the second subdivisions 1 and 2 of the

Judicial interpretation has wrought the same result. In the absence of statute it has been held sufficient to charge an intent to defraud in forgery cases in general terms, without specification. Roush v. State, 34 Neb. 325 ; McClure v. Commonwealth, 86 Penn. St. 353 ; Riley v. State, 44 S. W. Rep. (Tex.) 498. Under the statute, the courts of this state haVe so held (People v. Hoyt, 145 App. Div. 695 ), and clearly so respecting the crime set forth in this indictment. People v. Hegeman, 57 Misc. Rep. 295 , is controlling. The indictment

Colby’s Criminal Law (Vol. 1, p. 587) sums up the requirement as follows: “ There need not be an intent to defraud any particular person, because a general intent to defraud is sufficient to constitute the crime; for if a person do an act the probable consequence of which is to defraud, it will in contemplation of law constitute a fraudulent intent.”

It follows that the charge of the trial court, in the respect objected to and now alleged as erroneous, was a correct state

The trial court’s charge of the law applicable to the second count supra, is likewise the source of specification of error in that, in substance, the jury were instructed that to constitute the crime therein charged an intent to defraud was not necessary to be shown, but that an intentional falsification knowingly done or an unlawful or corrupt alteration of an account or book of account satisfied the requirement of those subdivisions of the section. It is true as a matter of law that it is competent for the legislature to prohibit the doing of a particular act and to provide a penalty for the violation of the prohibition, and the intention with which the act is done or the lack of any criminal intent in the premises may be immaterial unless such intent is made a part of the offense by the statute itself, and whether or not such intention is necessary is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design. The presumption, however, is that when an act is made a crime by statute the statute is to be construed in the light of the common law in this respect and the existence of criminal intent to be regarded as essential. The court in the case at bar so charged, instructing the jury that a conviction under the second count required their finding that the defendant knowingly and intentionally directed ■ falsification of the books or unlawfully and corruptly directed the alteration. That this was an essential element of the crime is observable from the phraseology of the section, where the qualifying terms “ unlawfully and corruptly ” are included in the crime. Inadvertence is not prescribed. Mistake or accident is not punishable. The falsification must be knowingly and intentional; the alteration corrupt and unlawful. The section, within its comers, forecloses the necessity for seeking assistance of meaning aliunde. The claim of counsel, however, reaches further. It seeks to extend by implication the require

The case is extremely valuable by way of illustration from three aspects: Firstly, it recognizes the statutory crime of forgery as complete in itself and unburdened with the require

The same court in the Isaacson Case, supra, demonstrated that the falsification by an employee or official of an association-

In addition, a survey of the statute itself is illuminative and strengthens the conclusion. To ascertain and declare the intent of its framers the statute in its entirety and not partially must be scrutinized. Assurance of its non-necessity in the 1st subdivision is found in its inclusion in the 2d and 4th and nonappearance in the 1st and 3d subdivisions. Design, not oversight, is the strong if not only permissible inference that can be derivable from the section itself. Cognate statutes of other jurisdictions have been similarly read. People v. Tomalty 14 Cal. App. 224 , relying on the previous decision in People v. O’Brien, 96 Cal. 171 , involved a statute making criminal the alteration or falsifying of the whole or any part of certain records, maps, etc., by an officer having custody thereof. A like contention was there advanced as to the validity of the indictment in not alleging that the acts charged were not committed with the intent to defraud some one and as to the refusal of the trial court to charge that an intent to defraud was essential to constitute the crime. These points were disposed of as follows (p. 229) : “ It is claimed that the indictment is fatally defective in not alleging that the alteration or falsification was done with intent to defraud some one. But the section under which the indictment was framed does not make a fraudulent purpose an ingredient of the offense, and it has accordingly

Baron Manin in Reg. v. Asplin, 12 Cox C. C. 391, so construed the English statute (24 & 25 Vict. chap. 98, § 37) prohibiting false entries in marriage registers. Failure to prove that the entry was fraudulent was urged as a ground for dismissal. The objection was overruled and the jury told that “ the sole question was whether the prisoner, well knowing his name was Asplin, had signed his name George Bichardson; if so, he was guilty.” The baron, further, refused to reserve any of the points for the Court of Criminal Appeal.

The charge at bar, requiring that the falsification be made with knowledge of falsity, purposely, or intentional, was a correct construction of the section and in line with the well-defined judicial meaning of the word. This state of mind was referred to as “deliberate intention ” in Reg. v. Downes, 13 Cox C. C. 111, and “wittingly, subtilly ” in 5 Elizabeth, chapter 14. No other intent is necessary than the intentional doing of the act the statute forbids, says Bishop in 1 Criminal Law, page 428. Sanborn, J., in United States v. 99 Diamonds, 139 Fed. Rep. 961 , 969, speaking of a similar statute, took the same view in quoting Abbott in his Law Dictionary, at page 478: “In the more important uses, in jurisprudence, of

The fallacy of defendant’s claim lies in the attempt to inject into the defense covered by the 1st subdivision a specific intent which the legislature has not seen fit to include as an ingredient of the crime therein provided against, and in failing to recognize the distinction between the two subdivisions above discussed in that the one requires antecedent fraudulent intent, while the other makes criminal an act knowingly done which has a tendency to subsequently effect injury or fraud. The former is not exclusively confined to employees and officers; the latter is, and the act is unlawfully itself because of the tendency toward actual resulting injury irrespective of any prior intent by the actor at the time the falsification was made.

In submitting the case to the jury and defining the law applicable to the second count, in its requirement that the entries made be in some manner capable of use to the prejudice of or as proof at some time against the owner, the court apparently modeled its charge from the definition of such prime rendered in the Isaacson Case, supra. There the court said: “ The falsification of the books of a corporation, association, public office or officer, partnership or individual by any person when the act or omission of an act constituting the falsification binds the corporation, association, public office or officer, partnership or individual, or appears to be capable of being used as legal proof at some time, or in some way or at the same place, against such corporation, association, public office or officer, partnership- or individual, is and should be, forgery.”

The point is now made, though the charge was unexcepted

Confirmation, however, is derived from analogy. The materiality and influence of a false pretense presents a mixed question of fact and law in this state. Thomas v. People, 34 N. Y. 351 , established the rule. The opinion of Wright, J., said: “ * * * the materiality and the influence of the pretences in question is for the jury to determine, on evidence, by verdict; unless some inducing circumstances upon the face of the indictment show that the pretences are clearly immaterial and could not influence credit. The averment of the pretences by the indictment is only to give the defendant notice of what may be proved against him; the mode of obtaining need not be pleaded; and if any pretence is capable of defrauding, that is sufficient. How, take the two pretences averred in the indictment, viz., that he was a chaplain in the army, just returned from the army, and wanted money to get home with, confessed by the plea to have been made, and to have been false, and to have induced credit, and to have induced a parting thereon of money, and to have been uttered with intent to defraud; •and it may be correctly argued, that with such legal surrounding, they are quite sufficient to uphold the conviction. A court cannot say, as a matter of law, that these were not material representations, and were not calculated to deceive, and to induce credit; and were not within the statute, which speaks of obtaining by ‘ any false pretence.’ * * * Lord Denman, C. J., with the concurrence of all the judges, said: We can easily conceive how a belief that the defendant was a captain in the army might lead the other party to give the security; but that is a matter to be shown in the evidence.’ ”

That court expressly reiterated the rule in People v. Peckens, 153 N. Y. 576 , 588. The Appellate Division of this department in People v. Markheim, 162 App. Div. 859 ; affd., 213 N. Y. 680 , applied it to the presentation of a fraudulent claim upon a contract of insurance. The plea of not guilty and the presumption of innocence in criminal cases would make erroneous any other instruction. It may be added that on six different occasions during the charge the court amply explained to the jury this phase of the law, and no claim was then, made of inadequacy.

The identical conclusion must be reached were the rule otherwise, thus negativing possibility of prejudice to the defendant. As a matter of law, the court not alone would have been justified, but compelled to hold that the entries were capable of use to the prejudice and as proof against the Anti-Saloon League or another at some time or by some reason. There was evidence that, at defendant’s direction, the transfer was made on the league’s books in order that Phillips might be saved from the duty of paying to the federal and state governments income tax on the amount shown. Prior to the change the books properly showed that the league had paid to him his salary and commissions for the year, in the sum of $18,893.80. The books thereafter showed that the sum of

The final ground of alleged error founds itself on the refusal of the court t-o charge a request made by the defendant’s counsel at the conclusion of the main charge. The prosecution, in its cross-examination of the defendant, had questioned him as to the source from which he had obtained, long previous, certain moneys alleged to have been expended by him on behalf of the Anti-Saloon League and which the league had agreed some time later to reimburse him for when informed and acquainted with the prior expenditures. In referring to these two matters in its main charge the court instructed the jury as follows: “ This defendant here cannot be convicted because of any testimony he gave respecting King or Mann, or because of any discrepancy between his testimony here and his statement to the board of directors of the league, whether they seem reasonable or unreasonable, whether you believe them to be true or false. This defendant cannot be convicted here for any such thing, and these matters are only to be considered by you in passing upon his credibility as a witness, and also upon his motive and intent in doing the things and making the alterations in the books with which he is charged.” And at defendant’s request charged: “ The evidence established an.

Following this, defendant’s counsel requested the court to charge: “ The defendant is not charged with fraudulently causing the board of directors of the Anti-Saloon League to establish an indebtedness to him in the sum of $24,700, or in any sum, and the testimony as to the source from which the defendant obtained that money and as to how that money was spent, is immaterial to this case and must be disregarded by you. The resolution of the board of directors of the corporation, dated April 9, 1919, establishes the indebtedness, and in this case you are not allowed to determine the validity of that resolution or of the indebtedness created thereby.”

This request was refused, and error is claimed. That these matters could be considered as affecting the credibility of the witness and upon his motive and intent is clear. Equally so is the fact that the jury did not have before them the question of validity of the indebtedness to the defendant, evidenced by the resolution of the league. The law as thus charged was accepted by the defendant’s counsel without complaint. The refused request improperly contained a proposition contrary to the law as formerly charged, as well as combined several distinct matters. It was counsel’s duty to separate them if he desired a reiterated ruling as to each. The court was under no such duty where the law of each proposition had been previously and separately charged.

A review or discussion of the evidence adduced upon the trial is unnecessary in view of the application now addressed to the court. It is sufficient to state that the ease involved questions of fact and that the verdict of the jury, who were the sole judges thereof, was supported by sufficient evidence. The court can see in the record no substantial right of the defendant invaded or placed in jeopardy, or any reasonable ground

Motion for a certificate is accordingly denied.

Ordered accordingly.