People v. Genung — 11 N.Y. 18

Majority

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The People vs. Amos Genung.

Headnote

In an indictment under the statute for obtaining by false pretences the signature of a person to a written instrument, it is not necessary to charge loss or prejudice to have been sustained by the prose-tor ; the offence is complete when the signature is obtained by false pretences, with intent to cheat or defraud; and it is not essential that actual loss or injury should be sustained.

A party charged with having obtained the signature of a person to a.note by false pretences, is not at liberty to introduce his own books of account to show the state of accounts between him and the prosecutor, 'unless accompanied by proof aliunde óf the real situation of the accounts.

"Evidence that the prosecutor of a criminal charge had offered to leave court and not appear as-a witness against the party charged, in case he would settle with him the subject matter of the charge, is not admissible.

It is no objection to the charge of a judge that in commenting upon the testimony, he points out discrepencies in the relation given by witnesses at different times of the facts of a case.

Conviction for obtaining a signature to a note by false pretences. The defendant was convicted at the general sessions of Yates county, on an in-ti dictment for obtaining the signature *of one Luke Conly to a note for $40, on the pretence that it was a note for only $4. It was stated in the indictment that Conly, being indebted to Genung in the sum of $4, agreed to give his note therefor; that Genung wrote a note, pretending it to be a note for $4, when in truth it was a note for $40, and offered it to Conly to sign ; Conly being illiterate and not able to read writing, affixed his signature to the note, supposing it

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to be a note for $4, and delivered it to Genung; and so the jurors say that Genung, by the said false pretence, designedly and unlawfully obtained the signature of Conly to the said note, with intent to cheat and defraud him, and did then and there cheat and defraud him, contrary to the form of the statute, &c. On the trial, Conly proved the charges contained in the indictment. The defendant offered to prove by him that he had, during the then session of the court repeatedly offered to leave court and not appear as a prosecutor, if the defendant would settle the subject matter of the indictment with him. This testimony was objected to by the district attorney and overruled by the court. The defendant proved by one Isaac Cronk that, at the time the note was given, he read it, at the request of Conly, in an ordinary audible voice, as it was written, viz. a note for $40; he supposed that Conly heard him whilst he read the note, although he could,jiot say that he did hear him. A witness for the prosecution proved that previous to the trial he had inquired of Cronk whether Conly heard him read the note, to which he answered that he did not know that he heard him ; and on being asked whether he could say in what tone of voice he read it, he answered that he could not, but that he read the note. The defendant offered to produce and prove his books of account, and that they contained an account against Conly on which a settlement took place between Cohly and the defendant, at the time of the giving of the note. This evidence was objected to and rejected. The defendant proved that Conly was an old man, intemperate, and that his mind and memory were very much impaired; which testimony was rebutted by proof on the part of the prosecution. The court, in their charge to the jury, remarked that the testimony as to the mind of Conly was nearly balanced, and that the statement *of Cronk, made previous to the trial, as to what took place at the reading of the note, was materially different from what he testified to on the stand. The charge was excepted to. The jury found the defendant guilty. A bill of exceptions having been tendered and signed, and a certificate granted of a probable cause to stay judgment, the district attorney sued out a certiorari removing the indictment, &c. into this court. See 2 R. S. 736, § 42, 27; id. 741, § 25.

I. L. Wendell, for the defendant,

urged that the evidence offered and rejected ought to have been received; that the court erred in their comments upon the testimony, and that the conviction was not warranted by the testimony; but he principally insisted that the indictment was bad in not charging prejudice sustained by the prosecutor. The statute is only an enlargement of the act to punish cheats, or the obtaining of goods by false pretences, and that it has always been held, both at common law and under the statutes, that to constitute a cheat, properly so called, there must be a prejudice received. 2 East’s Cr. Law, 860. 2 Strange, 747, Ward’s case. Here was no false token, or writing, or other false pretence, except the assertion of a falsehood; it was a fraud which would have been indictable in case of conspiracy, but not otherwise. Obtaining an illiterate man to execute a deed to his prejudice, by reading it different from what it was written, is not indictable under the statute, but only at common law as a cheat, 2 East. 823. In forgery it is otherwise : there it is not essential to the crime that any one should be prejudiced; it is enough that prejudice may ensue.

S. Stevens, for the people,

relied upon the terms of the act being sufficiently clear and express to create the crime, although no prejudice ensued. 2 R. S. 677, § 53.

By the Court,

Conly was the principal witness for the prosecution, and the counsel for the defendant, upon his cross examination, offered to prove by him that he had frequently, during the present session of

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the court, offered to the prisoner that if he would settle the subject matter of the *indictment, he, the witness, would leave the court and not appear against him. This testimony was objected to by the counsel for the people, and was excluded by the court. I think it was properly excluded. It could legitimately have had no influence with the jury ; it did not tend in the slightest degree to impeach the testimony of the witness, or to show that his narration was not true. Admitting that he had improperly endeavored to compromise the prosecution, his positive testimony in relation to the fraudulent conduct of the prisoner was not thereby impeached.

The books of account of the prisoner were also properly excluded. It would undoubtedly have been competent for him to have established, by proper evidence, that the balance actually due from Conly to him was $40, instead of $4; but his own books were not of themselves, without other testimony, com petent evidence of that fact; and in the offer of the books there was no intimation of any intention to give the additional evidence, without which they were clearly inadmissible.

There was no error in the charge of the court. The observation of the judge that the statement of Cronk, the witness, to Mr. Morrison, as sworn to by him, was materially different from what he testified to on the stand, was strictly true. It was materially different; for he testified that he read the note to Conly in an ordinary audible voice, when, according to Morrison’s testimony, he stated to him that he could not tell in what tone of voice he read it, whether it was his ordinary audible tone or not. The fact therefore stated by the court was strictly true; and they simply stated the fact; they did not charge the jury that the testimony of Cronk was on that or any other account to be disbelieved; they left the whole matter of fact fairly to the jury.

It was suggested, upon the argument, that the indictment was bad in not charging loss or prejudice to have been sustained by Conly. This was not necessary. This is a new offence, created by the revised statutes. 2 R. S. 677, § 53. They have added to the statute, as it stood before, (1 R. L. 410, § 13,) the obtaining by false pretences the signature of any person to any written instrument. The offence is complete when the signature is obtained by false pretences, with intent to cheat or fdefraud another. It is not essential to the offence that actual loss or injury should be sustained. This was held in the case of The People v. Stone, 9 Wendell, 190. That case arose before the revised statutes, and was decided upon the law of 1813. 1 R. L. 410, § 13. The offence charged was the obtaining the endorsement of one. Filley upon several notes by false pretences. It was held that such endorsement, where the note was actually passed and made productive, was to be considered as money, goods or chattels, or other effects, within the meaning of the act. But I expressed a doubt whether a note thus obtained, where no use had been made of it, would be considered either money, goods or chattels, or a valuable thing; but I also observed, that under the revised statutes the offence was complete when the signature was obtained.

Let the proceedings be remitted to the sessions, with directions to proceed and render judgment.