53 N.J.L. 601 | N.J. | 1891
The opinion of the court was delivered by
The plaintiff in error was convicted! in the Camden County Court of Quarter Sessions upon an indictment for forgery containing four counts, the first of which, charged him with having forged the endorsement “D. H. Erdman ” on the back of a promissory note of the following tenor, to wit:
“Camden, N. J., Feb. 5, 1890.
“ One month after date I promise to pay to the order of D;. H. Erdman, at Camden Safe Deposit & Trust Company, Camden, N. J., three hundred and fifty dollars. '
“ $350. ' W. T. Mead.”
with intent to injure and defraud Daniel H. Erdman. The' second count was similar to the first, except that it charged an intent to defraud generally, without alleging an intent to' defraud a particular- person. The third count charged him with uttering the same note with intent to injure and defraud' Daniel H. Erdman, and the last count was similar to the third,, except that it charged an intent to injure and defraud, without .alleging .an intent to defraud a particular person.
Moving in arrest of judgment, the plaintiff in error sought to question the sufficiency of the indictment, for that, among-other things, it did not exhibit a forgery which could injure-Daniel H. Erdman or any other person.
Upon the denial of this motion error is assigned.
No objection was made to the indictment prior to the swearing of the jury. The fifty-third section of the Criminal Procedure act (Rev., p. 277) requires that all objections to an indictment for any defect of form or substance, apparent on the face thereof, shall be taken by demurrer or motion to quash before the jury is sworn, and it has not been suggested how
No forgery can do injury until it be utterednevertheless,, it is a crime, because it creates an instrument intended for use to the injury of another. Because it may be so. used, and it is-intended to be so used, it is justly regarded as tending to-injure. In the case of State v. Robinson, 1 Harr. 507, a bank note for $5, issued by the Lafayette Bank, of Bostou, which was insolvent, was altered by pasting the words “ New York ” over the word “ Boston,” there being a solvent Lafayette Bank in New York, with intent to use it as a genuine note of the New York bank. Such a note, in the hands of the- forger,, created no liability on the part of the New York bank, yet it was held to be a criminal forgery because the alteration made-the note purport on its face to be made by the latter, bank and thereby tended to charge that bank with its payment.
It is not necessary to show upon the face of the- indictment how or in what manner the party is to be defrauded... ■ That is-a matter of evidence at the trial. All that is necessary in the' indictment is to show an instrument which, on its- face, is-capable of being used to create a liability, and to aver that it was made with intent to defraud. West v. State, 2 Zab. 212, 235.
The remaining objections to the indictment go. to the sufficiency of the counts for uttering the forgery. It will nob profit to examine them, for, aside from- the bar of the statute
Another error assigned is, that at the trial the state was •permitted to produce secondary evidence of the note, and the -forged endorsement upon it, without having first shown its inability to-produce the originals.
It appears that the note, with the forged endorsement, was passed to the Camden Safe Deposit and Trust Company, and there credited to the account of the plaintiff in error. After the forgery was discovered, one John B. Wood, a resident of Pennsylvania, paid the plaintiff’s indebtedness to the trust company, taking all the notes and securities it represented, among which was the note set out in the indictment. The note had been protested, and, through the notary who protested it, the grand inquest was able to obtain sufficient data to correctly-copy.the forged..instrument in its indictment. When the trial of the indictment was moved, the prosecuting attorney had not been able to procure the note. The state proved that it had issued both subpoena and attachment for John B. Wood, and that it had sent a constable to his place ■of business, in Philadelphia, to find him, and also had caused ¡an attorney to telegraph to him, not only at his place of business,-but also-at his-residence. -Upon this-proof-being made, the trial court permitted the state to introduce secondary •evidence of the contents of the missing paper. After that ■evidence was had and the case had been closed on both sides, Wood appeared in court, and, by consent of the court and both parties, was permitted to testify. He swore that he did not know what had become of the note in question, but believed that he may have given it, with other papers, to the .son of the defendant.
The insufficient and suspicious explanation by this witness ■of his reasons for taking up the notes, coupled with his almost incredible forgetfulness of the disposition he had made of them
Very much in point here, and illustrative of the principle I have stated, is the case of Commonwealth v. Snell, 3 Mass. 82, where the brother of the defendant called upon the holder of the forged note and gave him security therefor, and through-that means contrived the secretion of the paper so that the-solicitor general was not able to produce it at the trial. Secondary evidence was admitted to prove it. In that case Chief Justice Parsons remarked :
“ But if the instrument cannot be produced, the prosecutor-being in no fault, and more especially if it be secreted to protect the offender, the next best evidence will be admissible,, and, if it satisfies the jury of the defendant’s guilt, it is a legal! foundation for a verdict against him.”
It is deemed that, under the proofs, the court did not commit error by permitting the note to be proved otherwise tharn by its production.
It does not appear that the judge was requested to make the explanation or to give the instruction indicated. If he had been requested to do so, his neglect or refusal to comply would have been error. It is the duty of the court, when required, to declare the law upon any point fairly involved in the consideration of the cause, and its refusal to do so .is error. But when no instructions are requested, the charge to the jury and the selection of the points to which the charge shall be directed rests in the sound discretion of the court, and the ■omission to state a pertinent legal principle is not error. It is competent for either party to require an expression of the •court’s opinion upon any point fairly involved in the case, through the instrumentality of a request to charge, and unless ■such request is made, error will not lie because the judge may have omitted to charge upon such point. Cole v. Taylor, 2 Zab. 59; Wescott v. Danzenbaker, 1 Halst. 132; Folly v. Van Tuyl, 4 Id. 153; Hetfield v. Dow, 3 Dutcher 440.
We find no error in the record that was injurious to the .plaintiff in error.
Let the judgment below be affirmed.
For affirmance—The Chancellor, Deptje, Knapp, Van Syckel, Bogert, Brown, Clement, Smith, Whitaker. 9.
For reversal—None.