People v. Tower
| Decision Date | 11 October 1892 |
| Citation | 32 N.E. 145,135 N.Y. 457 |
| Parties | PEOPLE v. TOWER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Indictment of Stephen Tower for forgery. Judgment of conviction, which was affirmed by the general term. 17 N. Y. Supp. 395. Defendant appeals. Affirmed.
Richard Crowley, for appellant.
P. F. King, Dist. Atty., for the People.
The indictment contained but a single count, and charged that the defendant ‘did make, forge, and alter, and put off as true,’ the indorsement of one Diez on a promissory note. The forging and the uttering of a forged promissory note, or of an indorsement thereon, are distinct and separate offenses, and each, under our statute, constitutes the crime of forgery in the second degree, and subjects the offender to the same imprisonment. Pen. Code, §§ 511, 521. On the trial the defendant's counsel, at the close of the case on the part of the prosecution, requested the court to direct a verdict for the defendant on the ground ‘that the indictment charges the defendant with having made and forged the signature of Diez, and that the evidence does not warrant a conviction of the crime of which he is charged in the indictment;’ and after verdict he moved an arrest of judgment, stating the same ground. The motion to direct a verdict and the motion in arrest were each denied, and exceptions to the rulings thereon present the only questions of law urged on this appeal.
There was a conflict of evidence upon the point whether the indorsement of Diez, which was admitted to be a forgery, was written by the defendant. But the evidence justified a finding that he wrote the indorsement, or procured it to be written, being present at the time, aiding and abetting the forgery. In either case he was properly charged as principal. Pen. Code, § 29; State v. Rucker, 93 Mo. 88, 5 S. W. Rep. 609; Chidester v. State, 25 Ohio St. 433. It is not controverted that the defendant uttered or offered to pass the note with the forged indorsement.
The principal point urged for a reversal is that the indictment is bad for duplicity in charging two distinct offenses in one count, viz., the forging and the uttering of the forged indorsement. It was held in People v. Rynders, 12 Wend. 428, that a count for forging an instrument could be united with a count for uttering the same instrument, in the same indictment, and that the prisoner might be properly tried on both charges at the same time. Sections 278 and 279 of the Code of Criminal Procedure prescribe that an indictment must charge but one crime, and in one form, except that the crime may be charged in separate counts to have been committed by different means; and that, where the acts complained of may constitute different crimes, such crimes may be charged in separate counts. Under the Code it is perhaps doubtful whether the two offenses of forgery and uttering the forged instrument could be properly united in the same indictment. The crimes are distinct, arising upon different acts, although each constitutes the offense of...
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McClure v. People
... ... decision was put. Other cases cited by plaintiff in error, ... which are, in some respects at least, in his favor, are: ... People v. Cooper, 53 Cal. 647; State v. Haven, 59 Vt. 399, 9 ... A. 841; Larison v. State, 49 N. J. Law, 256, 9 A. 700; People ... v. Tower, 135 N.Y. 457, 32 N.E. 145. In most, if not in all, ... of the authorities relied upon by him, some material element, ... not present in the case at bar, differentiates them from it ... Fairly considered, none of them controls the decision here ... Our ... statute seems to be ... ...
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...to trial is not an omission which tends to prejudice his rights'--citing People v. Tower, 63 Hun 624, 17 N.Y.S. 395, 396, affirmed 135 N.Y. 457, 32 N.E. 145. Then further, on page 743 top, appears the "These matters [arraignment and pleading] were waived by the defendant going to trial upon......
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