People v. Drayton

• Decision Date: 10 July 1901
• Citation: 168 N.Y. 10
• Court: New York Court of Appeals Court of Appeals
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN DRAYTON and ARTHUR A. BOWEN, Appellants.

168 N.Y. 10

60 N.E. 1048

PEOPLE

v.DRAYTON et al.

Court of Appeals of New York.

July 10, 1901.

Appeal from supreme court, appellate division, Fourth department.

John Dravton and Arthur A. Bowen were indicted for forgery.From an order of the appellate division (58 N. Y. Supp. 439) reversing a judgment sustaining a demurrer to an indictment, and overruling such demurrer, they appeal.Reversed.

Gray, J., dissenting.

Joel M. Marx, for appellants.

Howard H. Widener, for the People.

O'BRIEN, J.

The defendants demurred to the indictment charging them with forgery on the ground that it did not state facts sufficient in law to constitute that crime.The trial court sustained the demurrer, but the decision was reversed at the appellate division, and the defendants have appealed to this court from the order of reversal.

It is contended that the indictment charges the crime of forgery in the second degree, as defined by section 511 of the Penal Code, in the following terms: ‘A person is guilty of forgery in the second degree who, with intent to defraud, * * * forges * * * an instrument or writing, being or purporting to be the act of another, by which a pecuniary demand or obligation is or purports to be or to have been created, increased, discharged, or diminished, or in any manner affected, or by which any rights or property whatever are or purport to be or to have been created, transferred, conveyed, discharged, increased, or diminished, or in any manner affected.’The instrument or writing alleged to have been forged by the defendants is set forth in full in this indictment, and it is charged that it purports to create a pecuniary demand and obligation.The following is a copy of the paper: ‘Advertising Contract.No. 346.Rochester, 8/6, 1897.To the Publishers: You are hereby authorized to insert our advertisement for the Financial and Trade Guide for [168 N.Y. 12]1897-8.Edition to occupy the space of one-fourth page adv. and 3 heading, for which we agree to pay the sum of ($15) fifteen dollars.Name: Co-Operative Foundry Co.By whom signed: McCarthy.Address: _____.On publication of advertisement.Not subject to cancellation.The publisher will not be bound by any agreement not stipulated therein.’It will be seen that this instrument is an order by a corporation, addressed to some one called ‘Publishers,’ containing an offer to pay $15 for advertising.The indictment is silent with respect to the existence of any such business, project, or enterprise as the Financial and Trade Guide, and equally silent with respect to the existence or identity of the publishers.Whether such a book or advertising medium is or ever was published, or had any existence as a business project, cannot be ascertained from the indictment.No fact is alleged tending to show that any individual or corporation was engaged in its publication, or that the paper was addressed to any one upon whom it could operate as a fraud.It is not alleged that the paper was ever delivered or sent to any one with intent to defraud.It is alleged that the defendants forged it with intent to injure and defraud the corporation by whom it purports to be made, but on the face of the paper, and without the aid of some extraneous fact not averred, it is difficult to see how it was legally possible to accomplish that result.

The rule of pleading established in this state in such cases is that if the paper set forth in the indictment, and of which the forgery is predicated, does not, either upon its face or by the averment of extrinsic facts, affirmatively appear to be an instrument which, if genuine, would be operative, the indictment is bad, as failing to state facts sufficient to constitute a crime.People v. Shall, 9 Cow. 778;People v. Savage, [168 N.Y. 13]5 N. Y. Cr. R. 541;...