Rosekrans v. People — 10 N.Y. Sup. Ct. 287

Majority

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CHARLES ROSEKRANS, Plaintiff in Error, v.THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

Headnote

forgery — 2 S. 8,., 673, § 33—Counts in am, indictment—what should contain,— duplicity.

The plaintiff in error was indicted for forgery in the third degree ; the indictment alleging that a document, set forth "therein—purporting to be a formal statement of an account for services rendered by a constable to the county of Sara-toga, in which the items were set forth in detail, with an affidavit of the claimant as required bylaw—was falsely made, "forged and counterfeited by him, with intent to defraud the said county. Held, that a demurrer to the indictment was properly overruled; that the instrument set forth in the indictment was the subject of forgery within 2 Revised Statutes, 673, section 33.

The plaintiff in error also demurred to each of the counts for duplicity, insisting that the bill or account, the signature to the affidavit, and the signature to the jurat or certificate, were different instruments within the meaning of the statute, and that the forgery of each of them was a distinct offense. Held, that the demurrer was properly overruled; that the account and signatures were not

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separate instruments, as they were all essential to the completion of the account before it could be properly presented to the board of supervisors.

In order to render a count void for duplicity, the two offenses must be described in adequate terms; otherwise the additional allegations will be regarded as surplusage.

An indictment which alleges that the defendant falsely made, forged and counterfeited an instrument, within the statute, with intent to defraud, setting forth the instrument in Turno vw'ba, is sufficient.

Writ of error to the Saratoga Comity Sessions, to review a judgment rendered upon a demurrer to an indictment for forgery.

The indictment, containing five counts, was for forgery in the third degree, for forging and counterfeiting an instrument in writing, purporting to be an account of one Samuel Johnson for alleged services as constable against the county of Saratoga, together with the affidavit and jurat thereto attached, including the certificate of the justice.

The following are the material portions of the first four counts of the indictment:

County of Saratoga, ss. :

The jurors for the people of the State of New York, in and for the body of the county of Saratoga, being then and there sworn and charged, upon their oath present:

That Charles Rosekrans, late of the town of Clifton Park, in said county of Saratoga, on the first day of November, in the year of our Lord one thousand eight hundred and seventy-three, feloniously, with force and arms, at the town and county aforesaid, with intent to defraud the said county of Saratoga, did falsely make, forge and counterfeit, and cause and procure to be falsely made, forged and counterfeited, and willingly act and assist in the false making, forging and counterfeiting, a certain instrument purporting to be the act of another, to wit: of one Samuel Johnson, and by which instrument a pecuniary demand for therein alleged constable services purported to be created against said county of Saratoga, and by which said false making, forging and counterfeiting, and causing, procuring to be falsely made, forged and counterfeited, of said instrument, the said county of Saratoga might be bound and affected in property: and which said instrument, so as aforesaid feloniously and falsely made, forged and counterfeited, and caused and procured to be falsely made, forged

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and counterfeited, by the said Charles Rosekrans, is in writing, and is in substance and to the effect following, that is to say: (Here follows the account.)

That said instrument being so made in manner and form as aforesaid, he, the said Charles Rosekrans, feloniously and in furtherance of his said intention to defraud the said county of Saratoga, did thereupon falsely make, forge and-counterfeit, and cause and procure to be falsely made, forged and counterfeited, and willingly act and assist in the false making, forging and counterfeiting a certain other instrument purporting to be the affidavit of him, the said Samuel Johnson, verifying said foregoing named instrument, and did connect and subjoin thereto, to wit: said affidavit, a further instrument or writing, purporting to be a certificate of a justice of the peace, to wit: one Charles E. Gorsline, who is and then was a justice of the peace of the said county of Saratoga, residing at the town of Halfmoon therein, and being a competent officer to administer oaths and to take affidavits within said county of Saratoga, and and which said affidavit, with the said falsely made certificate so subjoined as aforesaid, purporting to be the official act of said justice of the peace, are in writing and in substance and to the effect following, that is to say:

STATE OF HEW YORK,

Saratoga County.

Samuel Johnson of said county, being duly sworn, says that the items of the annexed account, by him presented and claimed, are correct; that such disbursements and services have in fact been made or rendered ; and that no part thereof has been paid or satisfied.

SAMUEL JOHHSOH.

Sworn to this 1st day of)

Hov., 1873, before me. j

C. E. Gobsline,

Justice' of the Peace.

And which said falsely made, forged and counterfeited instruments purporting to be such affidavit and said falsely made, forged and counterfeited certificate thereto subjoined, were by said Charles Rosekrans annexed to said falsely made, forged and counterfeited instrument for said alleged constable services, and which said

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falsely made, forged and counterfeited instruments so annexed as aforesaid were so made and annexed by the said Charles Rosekrans with intent to defraud the said county of Saratoga, and by means whereof the said county of Saratoga might be bound, and might thereby be affected in property; and said several falsely made, forged and counterfeited instruments, and each and every of them, so feloniously and falsely made, fimged and counterfeited as aforesaid, were thereupon, to wit, on the 10th day of November, in the year of our Lord 1873, fraudulently and feloniously presented, and caused and procured to be presented for audit against said county of Saratoga to the board of supervisors of said county of Saratoga by him the said Charles Rosekrans, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.

And the jurors aforesaid, upon their oath aforesaid, do further present [same as in first.count], a certain instrument purporting to be the act of one Samuel -Johnson and of one Charles E. Gorsline [same as in first count].

And which .said falsely made, forged and counterfeited instruments so purporting to be the act of the said Samuel Johnson and the said Charles E. Gorsline, and by means whereof the said county of Saratoga might bound and might thereby be affected in property, so feloniously and falsely made, forged and counterfeited as aforesaid, with intent to defraud the said county of Saratoga, was thereupon afterward to wit [same as in the first count].

And the jurors aforesaid, upon their oath aforesaid, do further present [same as in second count], and caused to be presented for audit against said county of Saratoga, to one David Maxwell, who was then and there clerk of the hoard of supervisors of said county of Saratoga, and as such clerk duly authorized to receive said instrument and bill of account for audit by said board of supervisors, by him the said Charles Rosekrans, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.

■ And the jurors aforesaid, upon their oath aforesaid, do. further: present, that Charles Rosekrans, late of the town and county aforesaid, on the 1st day of November, in the year of our Lord 1873, at the town and county aforesaid, with force and arms, and with intent

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to defraud the said county of Saratoga, feloniously, falsely and fraudulently did make, forge and counterfeit, and did cause and procure to be so made, forged and counterfeited, a certain instrument purporting to be the act of one Samuel Johnson and of one Charles E. Gorsline, and which said instrument is in writing, and is in substance and to the effect following, that is to say [here follow account and affidavit], against the peace of the people of the State of New York and their dignity.

The demurrer was to the whole indictment, and to each of the counts therein. Judgment was given for the people upon the demurrer to the whole indictment, and upon the first four counts, and for the defendant on the fifth count.

. L. Tremain, for the plaintiff in error.

H. Smith, for the defendants in error.

The first objection raised by the demurrer presents the question whether the indictment contains a criminal offense. It is insisted that the crime of forgery cannot be predicated upon the instrument, a copy of which is set forth in each count of the indictment. The statute provides, that “ every person who, with intent to injure or defraud; shall falsely make, alter, forge, or counterfeit * * any instrument or writing, being’, or purporting to be, the act of another, by which any pecuniary demand or obligation shall be, or shall purport to be, created, increased, discharged or diminished * * by which false making, forging, altering, or counterfeiting, any person may be affected, bound, or in any way injured in his person or property, upon conviction thereof, shall be adjudged guilty of forgery in the third degree.”^[9] By another provision it is declared that it “shall be sufficient, if such intent appear to defraud * * any county, city, town or village * * or any person whatever.”^[10] We think these provisions are sufficiently comprehensive to include the instrument in question. It is a writing purporting to be the act of another, -by which a pecuniary

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demand purported to be created, and by which another might have been affected, and it is alleged that it was falsely made, forged and counterfeited by the defendant with intent to defraud the county of Saratoga. The revisers, in their note to the first section above cited, state that it was intended, “ to reach every case of forgery that ever has been committed, or that ever can be committed, ” not otherwise specially provided for, and their complete success in giving expression to their intention, has since been repeatedly affirmed by the courts.^[9]

Section 45^[10] does not limit the meaning of the provisions in the previous sections, nor was it intended as a general definition of the document described as an “ instrument or writing,” but was merely enacted to remove all doubts in regard to the special cases therein mentioned, so that “every instrument partly printed and partly written, .or wholly prihted with a written signature thereto,” should be included. Nor was it essential that a legal liability or obligation should have been created by the instrument upon which an action could be maintained. It was sufficient that it purported to create a pecuniary demand, by which another might be affected or injured. If the instrument was complete in itself, and sufficient on its face to have induced an acceptance and allowance of the account by the board of supervisors, so that it might have produced injustice if the fraud had not been detected, it was the subject of forgery under the statute,^[11] Now this document purports to be a formal bill or statement of an account, on the part of a public officer, for services against the county of Saratoga, setting forth the items in detail, with an affidavit of the claimant, as required by law, constituting, apparently, a legal claim, in proper form to be audited and paid. It is clearly within the letter and spirit of the statute, and would have been sufficient as the foundation of an indictment at common law.

The next objection is of a more special character, and relates to each of the counts separately, as bad for duplicity. It is insisted, for the defense, that the bill or account, signature to the affidavit,

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and signature to the j urat or certificate, are different instruments or writings within the meaning of the statute, and hence, that the forgery of each of them is a distinct offense; so that they cannot properly be united in the same count. The general rule is familiar, that two or more separate criminal offenses cannot be joined in one count. The public prosecutor may, however, allege in the indictment several felonious acts, which, in themselves separately considered, are distinct offenses, so far as they are essential portions of one continuous transaction or connected charge, and collectively constitute but one offense, and may set forth in different counts various versions of the same charge or transaction, alleging different grades or degrees of the principal offense, provided, as thus alleged, they may all be merged in one, and do not necessarily constitute different and distinct offenses. But each count should contain only one version of- one offense, or one degree of the principal offense, and should be complete in itself, and unconnected with the others for any purpose, except, perhaps, special reference to particular allegations, to avoid unnecessary repetition. And it is never permissible to allege in one and the same count facts which constitute separate and distinct offenses, created by different statutes and requiring different degrees of punishment.^[9] It is, however, a misapprehension of the legal effect of the document, set out in the indictment, to call the account and the signatures to the affidavit and jurat three separate instruments, as they were all essential to the completion of the account before it could be properly presented to the board of supervisors;^[10] and all of them, therefore, constituted but one instrument. Unless the affidavit had been attached, the account itself would not have been a legal instrument on its face, and the crime of forgery, in reference to it, could not have been committed,^[11] And, as the forgery of the account and the signatures to the affidavit and certificate must be sustained under the same section of the statute, this disposes of the objection of duplicity as to them, if they were all made at one time and as one act

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or transaction. But the first count alleges each of these parts of the paper separately, as different instruments, and each act of forgery as distinct and independent; and, although it fails to make a proper allegation of the forgery of the signature to the certificate against the defendant, it must be regarded as double within the ’ rule. The second and third counts, on the contrary, allege the forgery of the whole paper, as one instrument and as one act or transaction, and are not therefore obnoxious to this objection. There is no- force in the suggestion that the alleged forgery is the joint act of Johnson and Glorsline, whereas their signatures purport to be attached separately to the affidavit and jurat annexed to the account, as the allegation is that the entire instrument was forged, and each of the signatures are attached to and form a part of the instrument. It is proper to allege, in the same count, an offense upon two or more persons, when it was the result of a single act, or was all one transaction.^[9]

But it is also insisted, that the second and third counts are bad for duplicity, as well as the first, because the distinct offense of uttering the instrument is joined with the offense of forging the same. It is a sufficient answer to this objection, that if the pleader intended to charge such an offense, which is not apparent, he utterly failed. It is alleged in each of these counts, after averring the forgery of the instrument, that the defendant “ feloniously presented and caused it to be presented for audit against the county of Saratoga.” There is no allegation that he “ uttered and published it as true,” which is essential, both at common law and under the statute. ' In order to render the counts objectionable, they must describe two offenses in adequate terms. Otherwise the additional allegations will be regarded as surplusage,^[10] The fourth count is clearly good within all'the authorities. An indictment which alleges that the defendant falsely made, forged, and counterfeited an instrument within the ‘ statute, with intent to defraud, setting forth the instrument m haec verba, is a sufficient description of the circumstances to constitute the offense,^[11] Judgment-must

* 1 Bishop’s Crim. Proc., § 437, and cases cited.

† † 1 Bishop Crim. Proc. § 440; Dawson v. The People, 25 N. Y., 399 , 402.

‡ ‡ Holmes v. The People, 15 Abb., 154 ; People v. Rynders, 13 Wend., 435 ; People v. Clements, 26 N. Y.,193.

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therefore be ordered for the defendant on the first count, and for the people on the second, third and fourth counts; and the judgment below on the indictment must be affirmed, with leave to the defendant to plead if he shall be so advised.

Present—Bookes, P. J., Countryman and Landon, JJ.

Judgment accordingly.

Footnotes

* 2 R. S., 673, § 33.
† † 2 R. S., 675, § 46.
* Noakes v. The People, 25 N. Y., 380 , 384; People v. Stearns, 23 Wend., 634 , 637.
† † 2 R. S.,675.
‡ ‡ People v. Stearns, 21 Wend., 409 , 414; People v. Krummer, 4 Park C. R., 217 .
* 1 Bishop on Crim. Proc., §§ 433-439, 449 and note; Reed v. The People, 1 Park. Cr. R., 481; People v. Wright, 9 Wend., 193 ; People v. Rynders, 12 id., 426; Nelson v. The People, 23 N. Y., 293 , 397.
† † Laws of 1847, ch. 490, § 24.
‡ ‡ Vincent v. The People, 11 Abb., 234 ; People v. Harrison, 8 Barb., 560 ; People v. Gallomey, 17 Wend., 540 .