People v. Tower — 42 N.Y. St. Rep. 164

Majority

p. 164

The People, Resp’ts, v. Stephen Tower, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

1. Forgery.

The crime of forgery in the second degree as defined in § 511 of the Penal Code is distinct and separate from the crime of uttering and putting off forged paper under § 521, although each crime' is forgery in the second degree.

3. Same—Indictment—Waiver of objections.

An objection to the improper joinder of two crimes in one count in an indictment is waived by the failure of defendant to demur to it on that ground.

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3. Same.

An objection on the ground that defendant was not arraigned upon the indictment and did not plead thereto, is waived by his going to trial on the merits, and cannot be raised for the first time after conviction.

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

Richard Crowley, for app’lt; P. F. King, for resp’ts.

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 Loclcport, N. Y., April 14, 1890, and is as follows:

“ $156.00.

“ Seven months after date I promise to pay to the order of E. A. Longstaff, one hundred and fifty-six dollars at the Merchants’ Bank, Loclcport, N. Y. Value received, with interest.

“ (Signed) Stephen Tower.”

On the back of the instrument was the genuine endorsement in writing of one E. A. Longstaff. It is alleged in the indictment that by the endorsement of the name of John Diez a pecuniary 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 § 521, though each crime is forgery in the second degree. Erom 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 defendant 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

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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, 3 9 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.

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

Judgment and conviction appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.