People v. Underhill

• Decision Date: 10 April 1894
• Citation: 142 N.Y. 38,36 N.E. 1049
• Parties: PEOPLE v. UNDERHILL.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 38

36 N.E. 1049

PEOPLE

v.UNDERHILL.

Court of Appeals of New York.

April 10, 1894.

Appeal from supreme court, general term, fifth department.

Charles F. Underhill was convicted of forgery in the third degree; and from a judgment of the general term (26 N. Y. Supp. 1030) affirming the judgment of conviction, and orders denying motions for a new trial and in arrest of judgment, defendant appeals. Reversed.

George Raines, for appellant.

Howard H. Widener, for the People.

O'BRIEN, J.

The defendant was convicted of the crime of forgery in the third degree, upon an indictment containing four counts, charging, in various forms, the forging, altering, and uttering by the defendant, when president of the Flour City Life Association, an insurance corporation or association on the co-operative or assessment plan, of a writing belonging to, and pertaining to the business of, the association, with intent to defraud. There is little if any dispute in regard to the main facts of the transaction upon which the indictment was framed. It appears by the record that the defendant was the president of the insurance association above named, and, as such, one of the principal managing officers. The main business office of the corporation was at Rochester. In the year 1889, one Philip Wareham, a resident of the state of Michigan, applied for membership in the association, was accepted, and two certificates issued to him upon the terms and for the purpose of securing the benefits and indemnity provided by the charter and by-laws of the association. In November, 1890, he died, and his son, Hamilton Wareham, the beneficiary named in the certificate, presented to the corporation proofs of death, and claimed $2,000 as the sum secured to him by the insurance. It was claimed that the certificate was procured by the beneficiary from the association by fraud, and the loss was not recognized by the company as one for which it was liable. In the early part of December, 1890, the defendant and another person, employed to adjust losses, went to Michigan, and settled the claim for $400. The beneficiary signed and sealed a written instrument, bearing date December 3d, by which the claim was compromised and released. The instrument recites the issuing of the certificate, the amount apparently due thereon, the fact that a defense existed to the same on the part of the company, and the release of the claim upon payment of $1,400. The actual settlement with the beneficiary was for $400, and he was paid only that sum. The evidence tended to show that the defendant drew $1,400 from the treasury of the corporation, paid $400 to the beneficiary in settlement of the claim, and that either he or his associate retained the balance, of $1,000, and fraudulently appropriated the same. The proof also tended to show that the beneficiary intended to settle for the $400, and supposed that such sum was the consideration expressed in the paper which he signed, and that the word ‘fourteen,’ instead of ‘four,’ was fraudulently inserted in the paper before the same was signed. The settlement was made in a room at an hotel at Lansing, Mich., and the defendant, the adjuster who accompanied him, the local agent of the company at that place, and the beneficiary who presented the claim, were all present at the transaction. The paper was sent to the office of the company at Rochester, and placed on file, and there treated as a record of the settlement and adjustment of the claim at $1,400, and as a voucher for a disbursement of that amount; but by whom it was mailed or sent does not conclusively appear, though there was proof sufficient to warrant the jury in finding that it was mailed to the office by the defendant. It was for forging and uttering this paper that the defendant was indicted and tried. With respect to the charge of foregery by corruptly altering the instrument, it was assumed that the defendant could not be convicted if it was done in the state of Michigan, or beyond the jurisdiction of this state; and the learned trial judge so charged, in substance. The signature of Wareham, the beneficiary, was admitted to be, and beyond all doubt was, genuine; and thus the charge of forgery proper had to rest upon proof that the defendant, after the execution of the paper, and within this state, altered the same by changing the word ‘four’ so as to make it read ‘fourteen.’ The proof upon this point was of such a character that the learned trial judge, before the close of his charge, expressed the opinion that, if the jury found the defendant guilty at all, it must be of uttering the instrument, knowing it to be forged or counterfeit. The jury returned a verdict of guilty of forgery in the third degree, in uttering the paper. In regard to the facts, it was the theory of the defendant's counsel that the word ‘fourteen’ was fraudulently inserted or changed before the paper was actually signed by the beneficiary; and the proof at the trial, and all the...