People v. Hoyt

The ground upon which the learned county judge came to the conclusion that these counts did not set forth the acts constituting the crime of forgery with sufficient particularity to constitute a good indictment was that forgery could be committed in various ways—by false making, or counterfeiting, or alteration, or erasure, or obliteration, or signing of the name of the alleged grantor, or a witness, or notary, or by piecing together, with intent to defraud, parts of genuine instruments—and because the crime could be committed in such different manner it was incumbent upon the people to allege in what way it was claimed the defendant committed the forgery, so that he might prepare his defense intelligently, and be protected from further prosecution for the same crime.

The entire deed is charged to have been forged, and is set forth in full in the indictment, and, if the defendant should be acquitted under the present indictment, such acquittal would clearly be a defense to any subsequent specific charge of forging any particular part of the instrument, and therefore there can be no question of the defendant being twice put in jeopardy for the same offense.

[1] The crime with which the defendant is sought to be charged is alleged to have been committed in 1905 when section 509 of the Penal Code was in force. That section provided as follows:

“A person is guilty of forgery in the first degree, who, with intent to defraud, forges: (1) A will or codicil of real or personal property, or the attestation thereof, or a deed or other instrument, being or purporting to be the act of another, by which any right or interest in property is or purports to be transferred, conveyed, or in any way charged or effected.”

The indictment is in the precise form approved in People v. Alderdice, 120 App. Div. 368 , 105 N. Y. Supp. 395 , and the holding in that case is founded upon the decisions of Rosekrans v. People, 3 Hun, 288 , People v. Dewey, 35 Hun, 311 , People v. Hertz, 35 Misc. Rep. 177 , 71 N. Y. Supp. 489 , and People v. Clements, 26 N. Y. 193 ; and is sustained by the further authorities of People v. Rynders, 12 Wend. 425 , Holmes v. People, 15 Abb. Prac. 154 , and Paige v. People, 3 Abb. Dec. 439.

It is conceded that the indictment is in proper form if the rule laid down in People v. Alderdice, supra, is a correct one, but it is contended that such rule is not in accord with later decisions in the Court of Appeals, and especially with that of People v. Corbalis, 178 N. Y. 516 , 71 N. E. 106 . The indictment under consideration in that case was for pool selling, and it was held bad because it did not state in what manner it was claimed the defendant had committed any of the several acts constituting the crime of selling, or aiding and abetting the selling of pools. No new rule with respect to the form of indictments was enunciated by that decision. Under the common law, it was a cardinal principle of criminal pleading that the act or acts constituting

The verb “forge” in law has ~a clearly defined meaning. Except for certain acts recently grafted upon the law of forgery, where intent to injure forms no part of the crime, of which People v. Abeel, 182 N. Y. 415 , 75 N. E. 307 , 1 L. R. A. (N. S.) 730 , is an illustration, it means the making of a false instrument with intent to defraud, The act constituting the crime in the present case is the forging of the deed set forth in the indictment, the making of the false instrument with intent to defraud. The act constituting the 'crime is therefore clearly charged by simply saying that the defendant forged the deed set forth with intent to defraud, and it was unnecessary to state how such forgery was committed, whether by pen or pencil or printing or by falsely making or counterfeiting any of the various signatures, or altering, or erasing, or obliterating, or piecing together parts of genuine instruments.

That the Court of Appeals by its decision in the Corbalis Case made no new rule with respect to the necessary allegation of indictments, and did not change the long-established rule with respect to charging the crime of forgery, is manifest from the fact that in People v. Dolan, 186 N. Y. 4 , 78 N. E. 569 , 116 Am. St Rep. 521 , it held a conviction proper where the charge was simply the “forging” and “felonious-uttering” of the instrument which was set forth. If there had been any such intention, the court naturally would have referred to its-recent decisions of People v. Weaver, 177 N. Y. 434 , 69 N. E. 1094 , and People v. Filkin, 176 N. Y. 548 , 68 N. E. 1120 , affirmed on opinion below, 83 App. Div. 589 , 82 N. Y. Supp. 15 , where the indictments-were in the same form. All precedents and all authorities sustain the-proposition that the particular manner in which the forgery is committed need not be stated in an indictment, but that the act constituting; the crime is sufficiently pleaded by alleging that the instrument set forth was forged. Wharton’s Precedents of Indictments and Pleas (3d Ed.) p. 297, gives as the form, “did wittingly and falsely make, forge, and counterfeit, and did wittingly assent to the falsely making, forging, and counterfeiting a certain bond and writing obligatory in the words, letters and figures; that is to say [quoting the instrument] Joyce on Indictments, pp. 627-630, both inclusive, gives forms in which; the only allegation is that the defendant, “with intent to defraud, feloniously did forge a certain instrument and writing,” which is to beset forth. In Regina v. Robson, 9 Carr. & Payne, 421, an indictment was held good which stated that the defendant, with intent to defraud, “feloniously did forge a certain request, for the delivery of goods,” which writing was set forth in full. To the same effect are People v. Badgley, 16 Wend. 53 , Miller v. People, 52 N. Y. 304 , 11 Am. Rep.

Our conclusion is that the demurrer to the indictment was improperly sustained, and that the judgment appealed from should be reversed and the demurrer overruled, and the defendant required to plead. All concur.