People v. Dolan

• Decision Date: 02 October 1906
• Citation: 186 N.Y. 4,78 N.E. 569
• Parties: PEOPLE v. DOLAN.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 4

78 N.E. 569

PEOPLE

v.DOLAN.

Court of Appeals of New York.

Oct. 2, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

James F. Dolan was convicted of forgery in the second degree. From a judgment of the Appellate Division (97 N. Y. Supp. 929) reversing the judgment, the people appeal. Judgment of the Appellate Division reversed, and judgment of conviction affirmed.

Wm. Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for the People.

Alfred R. Page, for respondent.

WERNER, J.

The defendant was indicted by the grand jury of New York county for the crime of forgery in the second degree. The indictment contained two counts. The first count charged him with forging a note dated October 13, 1897, for $2,000, payable to the order of himself at the West Side Bank, and purporting to be signed by the firm of Thos. Cockerill & Son. The second count charged him with feloniously uttering the same forged instrument with intent to defraud, knowing it to be forged. The first count was abandoned at the trial and the defendant was tried and convicted on May 19, 1904, upon the second count. There was ample evidence to warrant the jury in finding the defendant guilty of uttering the forged instrument as charged in the second count, but the judgment of conviction was set aside at the Appellate Division by a divided court, for errors said to have heen committed by the trial court in its rulings upon the admission and exclusion of evidence.

That the note was a forgery was conceded; and it was established beyond a doubt that Cockerill & Son, whose name had been signed to it, had never authorized such signing. It was brought to the Twelfth Ward Bank of New York City on October 13, 1897, the day of its date, by a Miss Fitzpatrick, who was the bookkeeper of the defendant. The evidence was sufficient to justify the jury in finding that the defendant called at the bank later in the same day and indorsed it. The amount of the note was then placed to his credit. The defendant, testifying in his own behalf, stated that he was not in New York City on that date; that he did not indorse the note until some days later; and that he did not then know it was a forgery, as he had many transactions of a somewhat similar character with the bank. The defendant was a stone contractor, and the evidence tended to show a course of business dealings between him and Cockerill & Son, who were building contractors. For the purpose of showing guilty knowledge on the part of the defendant, the prosecution proved the uttering by him of several other forged notes. The defendant's counsel objected to the evidence relating to these other notes, and the exceptions based upon that objection raise the important question in this case. Two of the other forged notes were signed with the name of Cockerill & Son and made payable to the defendant. They were indorsed by him and discounted at the Twelfth Ward Bank. The first one was a three months' note dated May 13, 1897, and was for $2,500. The second was a two months' note dated August 13, 1897, and was for $2,000. It was given to pay off the first note, and at the same time the defendant paid the bank $500 and the amount of the discount. The note set up in the indictment was given to pay off this second note. There were two other forged notes signed with the name of James Stewart & Co., who were also building contractors, between whom and the befendant had been business dealings. Each one of these notes was for $3,200, made payable to the defendant and indorsed by him. The first one was given to Isaac A. Hopper, who procured it to be discounted for the defendant at the Twenty-Third Ward Bank and turned over the proceeds to the defendant. The second the defendant gave to John J. Hopper, a brother of Isaac, who loaned him money on it. Still another one of the forged notes was signed with the name of Patrick Gallagher, who was also a builder with whom the defendant had business dealings. This note was for $1,697, and was discounted by the defendant at the Nineteenth Ward Bank. All these transactions took place in 1897, and the evidence shows that at that time the defendant was in financial difficulties.

We think that all this evidence was clearly competent and that the learned Appellate Division erred in holding otherwise. The rules governing the introduction of proof of other crimes than that charged in the indictment have been so fully discussed in recent cases in this court that no extended examination of the authorities need here be made. People v. Molineux, 168 N. Y. 264, 61 N. E. 286,62 L. R. A. 193;People v. Weaver, 177 N. Y. 434, 69 N. E. 1094. The case at bar is controlled by the decision in People v. Everhardt, 104 N. Y. 591, 11 N. E. 62. In that case the late Judge Earl stated the rule as follows: ‘Upon the trial the people were allowed to prove, against the objection of the defendant, the uttering of other forged checks by him upon other occasions. In this there was no error. The defendant, by his plea of not guilty, had put in issue everything which it was incumbent upon the people to prove. They had no direct or positive evidence that he personally forged the check which he uttered, and it was ppen for him to show that at the time he uttered it he had no knowledge that it was forged, and was therefore innocent of crime; and for the purposes of showing the prisoner's guilty knowledge in such cases it has always been held competent to prove other forgeries. Such proof is not received for the purpose of showing other crimes than that charged in the indictment, but for the purpose of showing the guilty knowledge and intent which are elements of the crime charged, and it can be considered by the jury only for that purpose.’ ‘A man might think,’ said Judge Peckham in People v. Sharp, 107 N. Y. 467, 14 N. E. 319, 1 Am. St. Rep. 851, ‘the money he passed was good, and he might be mistaken once or even twice; but the presumption of mistake lessens with every repetition of the act of passing money really counterfeit.’ The latter observation very tersely states a rule that is as applicable to prosecutions for forgery as to cases of passing counterfeit money.

It is contended, however, that the rule has been changed by our decision in the recent case of People v. Weaver, 177 N. Y. 434, 69 N. E. 1094. We think there is no similarity between the two cases. In the Weaver Case it was claimed by the defendant that she believed in good faith to have been authorized by one Davis to indorse the note there charged as a forgery. Evidence of other forged notes not bearing the name of Davis was admitted. This was held to be error. In the case at bar the defendant does not claim to have believed that he had authority to sign the name of Cockerill & Son to the forged note he is charged with uttering. His contention is that he did not know it was a forgery. The difference between the two cases is obvious. Upon the record now before us the issue of guilty knowledge was squarely up and, as bearing upon it, evidence of the uttering of other forged instruments by the defendant was clearly competent.

There is also another ground upon which this evidence was competent. All the notes referred to in the evidence were made at about the same time. In each case they were made payable to the defendant and indorsed by him. During the period covered by all the notes the defendant was endeavoring to raise sufficient funds to meet his obligations, and in each case he used the name of some builder with whom he had done business and with whose affairs he was familiar. This combination of circumstances was sufficient to establish a common plan and identity of method so connected as to have a strong tendency to overcome any claim of innocent intent in the uttering of the note charged in the indictment. The evidence bearing on these other notes served to show that the defendant was endeavoring to meet his obligations as they became due, by making a fraudulent and intentional use of the names of contractors with whom he had business relations. The same general features were present in all of the transactions which seem to have been the product of one general scheme. These facts and circumstances were sufficient, we think, to bring the case within the exceptions to the general rule that excludes proof of extraneous crimes. As was said in the Molineux Case (168 N. Y. 264, 305, 61 N. E. 286,62 L. R. A. 193): ‘They must be so connected as parts of a general scheme, or they must be so related to each other as to show a common motive or intent running through them.’ It is true that the evidence of this general plan or scheme also tended to show the defendant guilty of other crimes, but that, as was very aptly stated by Judge Cooley in a Michigan case, is one of the misfortunes of such a defendant's position. Carver v. People, 39 Mich. 786.

It is further contended by the learned counsel for the defendant, that even if the evidence relating to the other forged notes was admissible, yet no proper foundation was laid for its introduction. Notices to produce these other notes had been served by the prosecution upon the defendant, but they were not produced at the trial. The prosecution was thus driven to give secondary evidence of their contents. When that was attempted the objection was promptly raised that such evidence could only be received after proof of loss or destruction of the notes, or of their delivery to the defendant. It is an eminently safe rule that where it is sought to give evidence of other forgeries, the forged documents upon which it is predicated must be produced, and so it has been held in other jurisdictions. State v. Breckenridge, 67 Iowa, 204, 25 N. W. 130;State v. Saunders, 68 Iowa, 371, 27 N. W. 455; People v. Lagrille, 1 Wheeler's Crim. Cas. 412; Anson v. People, 148 Ill. 503, 35 N. E. 145. But in none of the cases cited was there any notice to produce; neither were the...