People v. Adler

• Decision Date: 12 December 1893
• Citation: 140 N.Y. 331,35 N.E. 644
• Parties: PEOPLE v. ADLER.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 331

35 N.E. 644

PEOPLE

v.ADLER.

Court of Appeals of New York.

Dec. 12, 1893.

Appeal from supreme court, general term, fifth department.

Israel Adler was convicted of forgery in the second degree, and appeals. Affirmed.

The indictment contained two counts, the first of which set forth the forging, on April 12, 1892, at the city of Rochester, of the following written instrument, viz.: ‘Rochester, N. Y., April 12, 1892. The Central Bank pay to bearer two hundred dollars, John G. Thein, Pres. Jas. L. Schmitt, Tres.’ The second count set forth the uttering, on the same date and at the same place, of the written instrument described in the first count. The defendant demurred to the indictment, alleging, as one of the grounds of demurrer, that two separate and distinct crimes were charged therein, in violation of sections 278 and 279 of the Code of Criminal Procedure. The demurrer was overruled, and the defendant was required to plead. His trial in the court of sessions resulted in a conviction, and from the judgment of the general term (25 N. Y. Supp. 1132) affirming the judgment of conviction the defendant appeals to this court.

McNab & Cummings, (Frank Cummings, of counsel,) for appellant.

George D. Forsyth, Dist. Atty., and Howard H. Widener, Asst. Dist. Atty., for the People.

GRAY, J.

But one question is presented by this appeal, and that is whether this indictment was demurrable for charging more than one crime. Section 323 of the Code of Criminal Procedure authorizes a demurrer to an indictment when more than one crime is charged ‘within the meaning of sections 278 and 279.’ Section 278 provides that the indictment ‘must charge but one crime and in one form, except as in the next section provided.’ The next section (279) provides that ‘the crime may be charged in separate counts to have been committed in a different manner, or by different means.’ The Penal Code, by section 511, provides that a person is guilty of forgery in the second degree who forges an instrument or writing purporting to be the act of another, etc.; and, by section 521, that a person who utters a forged instrument or writing, the forging of which is punishable as forgery, is guilty of forgery in the same degree as if he had forged the same. It is perfectly clear that to forge and to utter a forgery constitute separate and distinct offenses; but the question is whether when as in this case, an indictment charging the prisoner with the crime of forgery in the second degree sets forth the different means in different counts by which it was committed, it is not within the meaning of sections 278 and 279. It would seem to be precisely within the exception provided by section 279 to the rule that but one crime must be charged in the indictment. If that is not a fair and rational construction of the section, then how are we to read it? The object of the indictment was to secure the punishment of the prisoner for the crime of forgery in the second degree, and, though technically it charged different felonies in the two counts, it was based upon a continuous transaction, of which forging and the putting out of the forged check were parts. Can it be pretended that the accused could have been embarrassed by having to plead to such an indictment, or that he was prejudiced by going to trial upon it? It is true that the two counts set forth offenses which were separately punishable; but the crimes and the degree of punishment were the same, and the facts were connected. In framing the indictment, so as in different counts to set forth the two parts of the continuous transaction, it was intended, presumably, to meet the evidence which should be adduced upon the trial. Was it not the purpose of the legislature to permit that to be done?

It was observed by Chancellor Walworth in Kane v. People, 8 Wend. 203, that in point of law it is no objection that two or more offenses of the same nature, and upon which the same or a similar judgment may be given, are contained in different counts of the same indictment. But in People v. Rynders, 12 Wend. 425, we have a case precisely in point, and, if the practice has not been changed by the Code of Criminal Procedure, one which should be authoritative. In People v. Rynders the indictment charged the defendant in certain counts with forging a check, and in subsequent counts with uttering the same as true. Objection was made that two distinct offenses were charged, and a motion made to compel the public prosecutor to elect for which offense he would proceed. Savage, C. J., held that while it would be such an incongruity to incorporate in the same indictment...