People v. Marrin

• Decision Date: 30 April 1912
• Citation: People v. Marrin, 205 N.Y. 275 (N.Y. 1912)
• Court: New York Court of Appeals Court of Appeals
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK C. MARRIN, Appellant.

205 N.Y. 275

98 N.E. 474

PEOPLE

v.MARRIN.

Court of Appeals of New York.

April 30, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Frank C. Marrin was convicted of forgery in the first degree. From a judgment of the Appellate Division, Second Department (147 App. Div. 903,131 N. Y. Supp. 1134) affirming the conviction, he appeals. Affirmed.

On the 3d day of May, 1895, the defendant was indicted for the crime of forgery in the first degree, in that on the 9th of November, 1893, in his capacity as commissioner of deeds, he willfully, falsely, and feloniously certified that a mortgage ‘purporting to have been made and executed by one James Cahill to one Caroline Barry in the sum of $4,000 * * * was acknowledged by a party thereto, to wit, the said James Cahill, * * * whereas in truth and in fact * * * such certifying by him, the said Frank C. Marrin, as such commissioner of deeds, was in all respects false, fraudulent, and spurious, as he, the said Frank C. Marrin, then and there well knew.’

The statute on the subject is as follows: ‘An officer authorized to take the proof or acknowledgment of an instrument which by law may be recorded, who willfully certifies falsely that the execution of such an instrument was acknowledged by any party thereto, or that the execution of any such instrument was proved, is guilty of forgery in the first degree.’ Penal Code, § 510; Penal Law (Consol. Laws 1909, c. 40) § 885.

Shortly before the indictment was found, the defendant fled to a country with which the United States had no extradition treaty and was absent for more than 13 years. He was finally arrested, and when arraigned on the 3d of October, 1908, he stood mute, whereupon the court directed that the plea of ‘not guilty’ be entered in his behalf. At the trial he appeared by counsel, made many objections to evidence, cross-examined the witnesses for the people, and presented numerous requests to charge, but called no witness and was not sworn himself. The jury found him guilty as charged in the indictment, and the judgment entered on the verdict was unanimously affirmed on appeal to the Appellate Division.

William Travers Jerome, of New York City, for appellant.

John M. Perry, of New York City, for the People.

VANN, J. (after stating the facts as above).

Upon the charge that the defendant, as a commissioner of deeds, ‘willfully certified falsely’ that the mortgage in question was duly acknowledged before him, a serious difference of opinion has arisen in regard to the admission of certain evidence given in support of the accusation. The circumstances under which that evidence was received were as follows: The defendant, a practicing lawyer in the city of Brooklyn, had as a client an old lady named Caroline Barry, a resident of that city, who on or about the 3d of November, 1893, gave him $4,000 to invest for her. In a short time he delivered to her the paper set forth in the indictment purporting to be a mortgage duly acknowledged before himself as commissioner of deeds and to have been executed by James Cahill, as mortgagor, to Caroline Barry, as mortgagee, to secure the payment of $4,000 in three years from date with interest payable semiannually. There was a false certificate of record indorsed on the mortgage, which purported to cover the adjoining halves of two lots in Brooklyn; the division lines passing nearly through the center of the buildings thereon. It was shown that no person named James Cahill had ever been connected with the record, title, or possession of either piece of property. Several persons of that name were called by the prosecution, each of whom swore that he was not the James Cahill named in the instrument, that the signature thereto was not that of any James Cahill known to him, and that he neither signed nor acknowledged it himself. The defendant embezzled said money, but from time to time paid Mrs. Barry what purported to be the interest upon the mortgage as it fell due.

[1] Thereupon, in order to show that James Cahill was a myth, that if any one acknowledged the instrument the defendant knew it was not the person described therein, and that the transaction was part of a continuous scheme to defraud Mrs. Barry, eight similar mortgages were offered and received for that purpose only. At the time they were received, as well as in the charge, the court carefully instructed the jury to that effect and distinctly told them that such mortgages could not be considered as any evidence of an independent crime or for any purpose except the one thus announced.

These mortgages purported to have been given within a period of less than two years, being dated two or three months apart, and they were all actually recorded, except the last two, which were dated after the one in question and bore false certificates of record. Each was delivered by the defendant to Caroline Barry as evidence of an investment made by him for her of money intrusted by her to him, to be invested in mortgages in her name, shortly before the date of each instrument, but in each case the money, instead of being invested in any way, was converted by him to his own use. Each ran to her as mortgagee, and each covered no unit of realty, but parts of houses on adjacent lots belonging to different owners, or rear ends or sides of lots. In each instance the person named as mortgagor was unknown and could not be found after diligent inquiry. Each was a stranger to the record, title, and possession of the premises covered by the mortgage. Each mortgage was certified by the defendant to have been acknowledged before him as commissioner of deeds, and he paid the interest on each as it became due from money intrusted to him by Mrs. Barry for investment. He used all the money, amounting to over $30,000, for his own purposes.

[2] It was not enough for the people to show simply that the certificate in question as made by the defendant was false. It was necessary for them to go further and show that he knew it was false, as the statute condemns one who ‘willfully certifies falsely.’ ‘Willfully,’ as thus used, means intentionally, so that proof of intention to make a false certificate is expressly required. As the defendant had made no admission upon the subject, knowledge and intention could be shown only by circumstantial evidence. Moreover, although the district attorney had made out a prima facie case, he was not bound to stop there, but could go on and make the case conclusive by showing that the defendant was not mistaken and that he was not deceived by some one who assumed to be James Cahill, and to acknowledge the mortgage under that name. It could not be known in advance what the defendant might swear to himself, or prove by other witnesses. Non constat he might produce evidence tending to show that he was misled into making the certificate by a person whom he honestly believed to be James Cahill, as named in the mortgage. In order to show knowledge, intention, and the absence of mistake, the district attorney had the right to prove similar acts, done under similar circumstances at about the same time, with intent to defraud the same person by the same means. The common method, purpose, and victim formed the connecting links which strung together the nine successive and successful efforts to defraud pursuant to a common scheme. People v. Dolan, 186 N. Y. 4, 10,78 N. E. 569,116 Am. St. Rep. 521,9 Ann. Cas. 453. The mortgagor named in the indictment may or may not have been a myth; but when eight similar myths appeared as mortgagors in eight similar mortgages, some dated before and some after the one in question, but no two far apart, each given to and used to defraud the same person and each acknowledged before the defendant who received the proceeds of the fraud in each case, the probability that the mortgagor in question was a myth was greatly strengthened. The probative force of such evidence bore logically on the question whether the defendant knew that James Cahill was a myth, and with cumulative power in proportion to the number of instances, tended to exclude the possibility of mistake on his part in that regard. It also tended to show his intention to make a false certificate.

The suggestion that evidence could not be received to show that the same man picked the pocket of the same person on several successive occasions near together does not apply to this case, because the pickpocket knows when he steals. There can be no mistake about it, whereas here there may have been a mistake. James Cahill may not have been a myth. Some one may have assumed to be James Cahill and may have convinced the defendant that he bore that name and was in fact the mortgagor, so that while the certificate was false the defendant may not have known it was false. The people did not know how much evidence might be presented by him tending to show that he was mistaken, and the way was open to the prosecution to reduce the possibility of mistake to a minimum by proving eight similar and connected transactions, each of which as well as the one in question was part of a general scheme to defraud Mrs. Barry by means of spurious mortgages certified by the defendant in the same way and under similar circumstances. The evidence also bore upon intent, not merely the intention of the defendant to make the certificate, but with a special weight upon his intention to commit a crime in making it. If one plan ran through all the transactions and was worked out in the same way, at nearly the same time, by the same means, with intent to defraud the same person, with the same effort to conceal by payment of interest, and a common method, agency, and purpose welded all the mortgages together, all were competent to show that the defendant was not mistaken in doing the single act for which he was tried, because nine mistakes of the same kind, each of which put a large sum of money in his pocket, are impossible of belief.

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