95 N.Y. 624, People v. D'Argencour

Citation:95 N.Y. 624
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LOUIS D'ARGENCOUR, Appellant.
Case Date:April 29, 1884
Court:New York Court of Appeals
 
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Page 624

95 N.Y. 624

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

LOUIS D'ARGENCOUR, Appellant.

New York Court of Appeal

April 29, 1884

Submitted April 14, 1884.

Page 625

COUNSEL

William F. Kintzing and George L. Simonson for appellant. There was no legal evidence offered by the people that the alleged bank was incorporated under the laws of Spain. (Lewis v. B'k of Kentucky, 12 Ohio, 150; Ingraham v. Hart, 11 Id. 255; Story's Conflict of Laws, 528, 529; Code of Civ. Pro., § § 942, 956-8; Nat. B'k v. DeBernales, 1 C. & P. 569; 2 Russ. on Crimes, 353-367; People v. Peabody, 25 Wend. 472; 3 Phillips on Evidence, 1136 and note; Raynham v. Carter, 3 Pick. 293; Taylor v. B'k of Illinois, 7 Mon. 585; Kean v. Rice, 12 S. & R. 203; Thomas v. Masser, 1 Dal. 462; Taylor v. B'k of Alexander, 5 Leigh, 471; State v. Givins, 5 Ala. 748.) The prisoner should have been acquitted as the indictment did not

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set forth an instrument which purports to be a pecuniary obligation. (Sanabria v. People, 24 Hun, 270; Rex v. Warshaner, 1 Moody's C. C. 466.)The indictment is fatally defective in not charging an intent to defraud some individual or corporation. (Russ. on Crimes [6th ed.], 361-7; People v. Stearns, 21 Wend. 409.) The court below erred in supposing that this point could not be entertained by them, for the reason that no motion in arrest of judgment was made upon that point. (Code of Crim. Pro., § 527; Hovey v. People, 92 N.Y. 554; People v. Boas, Id. 560; Code of Crim. Pro., § § 467-469, 323, subd. 4.) The judgment should be reversed, on the ground that there was no proof of the intent on the part of the defendant to defraud. (Hamm. Dig., tit. Forgery, chap. 1, p. 602; Cunningham v. People, 4 Hun, 456; People v. Shall, 9 Cow. 778; People v. Fitch, 1 Wend. 198; People v. Wilson, 6 Johns. 320; People v. Stearns, 21 Wend. 409; People v. Harrison, 8 Barb. 560; People v. Cady, 6 Hill, 491; People v. Gardiner, 62 N.Y. 304; 1 Bishop's Crim. Law [7th ed.], § § 287, 301, 304; 2 Russell on Crimes [9th ed.], 774; 2 Archbold's Crim. Pr. & Pl. [ 8th ed.] 1566, Pomeroy's notes; Keer v. Force, 3 Cranch's C. C. 43; State v. Ridstrake, 39 N. J. L. 365; State v. Shelters, 51 Vt. 105; Phillips v. State, 17 Ga. 461; Comm. v. Ladd, 15 Mass. 526; Rex v. Morton, 7 C. & P. 549; Rex v. Holden, 2 Taunt. 334; Reg. v. Cohen, 8 Cox's Crim. Cases, 150; Reg. v. Allday, 8 C. & P. 160; Harris v. People, 9 Barb. 664; People v. Curling, 1 Johns. 320.)

Peter B. Olney, district attorney, for respondent. The evidence is clear and uncontradicted that defendant was found with a counterfeit plate in his possession; this was a violation of the statute although the plate was not complete. (3 R. S. [ 7th ed.] 2488.) The lack of defendant's authority was sufficiently proven by the agent of the bank and the lithographer who had possession of the original plates. (1 Phillips on Ev. 695; Potter v. Deyo, 19 Wend. 361; 4 E. D. Smith, 142, 148; People v. Brook, 4 Denio, 469.) The proof of the

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existence of a corporation de facto was sufficient as shown by the agent and the lithographer. (People v. Davis, 21 Wend. 313; Losser v. State, 13 Ohio, 453.)

MILLER, J.

The defendant was indicted and convicted for the crime of forgery in the second degree, on the first count...

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