140 N.Y.S. 553 | N.Y. App. Div. | 1913
The indictment is in two counts, first, charging the forgery of a check on the Irving National Exchange Bank, dated December 28, 1911, for $8,250, purporting to be drawn by the Woodhouse Manufacturing Company, D. W. Woodhouse, Prop., and second, uttering the same knowing it to be forged. The fact that the instrument was forged is conceded as well as proved.
One Chester Errico, who was also indicted, had been for some time in the employment of the Woodhouse Manufacturing Company as bookkeeper and cashier. He was married and had children. He seems to have fallen into evil ways, to have become addicted to gambling ■ and to the opium habit. He consorted with a girl named Evelyn Curtis who admitted that she had been twice convicted of soliciting. He spent considerable time with her. The reason for this frequentation as stated by him was for the purpose of opium smoking. There is no doubt that their relations were meretricious. After the crime she went with' him to Boston at one o’clock in the morning on the twenty-ninth of December and there lived with him until about the middle of March when he was arrested.
About the end of November Errico lost his salaried position, but was still continued in the employment of the company with the privilege of making outside sales, with the right to receive commissions thereon. A new bookkeeper was to be installed and Errico feared that his peculations could no longer be concealed but would be discovered upon examination of the books. During those preceding months the defendant Elliott and a woman friend also addicted to the opium habit were intimates of Errico and the Curtis girl. Errico charges the defendant with inducting him into the habit. Errico testified that two weeks prior to the night of December twenty-seventh he told the defendant that he was in a bad way down at the office with the books. £i He says to me, £ What do you expect to do ? ’ I says, ‘Well, they have got a new bookkeeper down there and all the defalcations will come out now when he goes to draw a trial balance5 and he spoke up and said, ‘Well, supposing you put another big check over,’ he says, ‘ and you will not get any more for it than you will for the past that you have done.’ * * * So finally I agreed to it and I says to him, ‘Well, what do you need?’ He says, ‘the only thing I will need is a model.’ * * "x" So I got him a signature about two days afterwards.”
The story told by both Errico and the Curtis woman is that on the afternoon of December twenty-seventh they were all at the Curtis woman’s flat and that the defendant left, saying he was going over to the house to get some pen points and things. Thereafter he came back again with a parcel. They continued to smoke opium, lying on the bed in her room. About twelve
The present bookkeeper said that on the 28th of December, 1911, he saw the defendant come to the office between twelve and one o’clock. He asked if Mr. Woodhouse was in, “I told him he had gone to lunch. * "x" "x" He stopped and thought a moment and then he asked me, ‘ Could I use your telephone ? ’ And I said, c yes, there it is, you can use it ’ and he talked to someone for a few minutes. * * * He called up someone and was talking and then he says, £ what’s the number of this telephone ? ’ I told him and he says, £ Well, the party I want to talk to is out, so he will call me up here in a few minutes.’ He waited around there for about ten minutes for the man and
The office of the Woodhouse Manufacturing Company is about three short blocks from the Irving National Exchange Bank. Errico presented the check at the bank and received six $1,000 bills, four $500’s and five $50’s, and shortly after coming out of the bank met Elliott, who said: “ ‘Did you get the money?’ I says, ‘I did,’ he says, ‘I can’t hardly believe it.’ ” And they started in a devious way uptown, first redeeming a ring from a pawnbroker and then buying a couple of dollars’ worth of opium. Elliott said: “Now don’t let nobody touch you for the money on the way up.” Errico handed the money to Elliott, who slipped it into his glove, and they went back to the Curtis flat, where Elliott gave Errico one $1,000 bill, two $500’s and five $50’s, $2,250 in all. Later that night Elliott told Errico he had given $1,000 to his brother “to hold for me in case both of us drop, and we will have something to fight the case with.” Errico says he got $600 more for the purpose of hiring an expert to fix up the books. Elliott kept the balance. Elliott and his brother insisted that he should. take the Curtis woman, lest she should “ squeal,” to. Boston, and as a result he did take her to Boston on the twenty-ninth, where he laid up at the place indicated by Elliott. There he received letters from Elliott under an assumed name until he was arrested, in March. The Curtis woman tells substantially the same story. The evidence is sufficient to require the conviction, if believed. The attempt of the defense was to establish by cross-examination that this story was concocted for the purpose of ameliorating the punishment that Errico was to receive, or perhaps to secure for him entire immunity by putting the crime on Elliott, and that, as by his own confession Errico had been engaged in these preceding forgeries, this tale of opium smoking and midnight forgery by Elliott, if not the entire product of imagination, is absolutely unbelievable, and that Errico was the sole criminal.
So far as the count for uttering is concerned, the appellant claims that while there may be some evidence in the alleged identification of the bookkeeper and his testimony as to the
But there were other matters bearing on this count. When he was arrested the officer said: “I says, ‘I come here to lock you up.’ He says, ‘What for ?’ I says, ‘they charge you with acting in concert with Errico, putting over that check for $8,250.’ * * * Q. What did he say to that ? A. He says, ‘ I did not put it over.’ Well, I says, ‘ they claim that you wrote part of it.’ He says, ‘No, Errico wrote it all.’ ” There was found on him a couple of little books. In one of them was the telephone number of the Woodhouse Manufacturing Company. In view of the testimony as to his presence there as a lookout on the day of the perpetration of the crime, that is significant.
The important question is as to the status of Evelyn Curtis. The defendant claims that she was an accomplice, that the jury should have been so instructed as matter of law, and that without her testimony no conviction could be had, it being, of course, admitted that Errico was an accomplice in the crime of forgery. The court declined to charge that the Curtis woman was or was not an accomplice, but left it to the jury as a question of fact for them to determine, charging fully as follows: The defendant’s counsel claims that the woman Curtis is an accomplice. * * "x" One who aids and abets in the commission of crime, one who advises, counsels, procures or commands another to commit crime, is an accomplice. Now, was that woman an accomplice ? Did she aid and abet in the commission of this crime ? Did she procure the act to be done ? Did she advise the act to be done ? Did she counsel that to be done ? Is there anything in this evidence that would bring her within the provisions of section 2 of the Penal Law, as I have read it to you ? You let your memories go over the evidence from one end to the other. If you find anything in this evidence that she counselled the drawing of the check, or she advised it or procured it to be done, commanded it to be done,
She denied that prior to the transaction she had any knowledge of the intended crime or any participation therein; that while, having been called in at the time of the upsetting of the ink, she did see those checks, and did see Elliott sign, yet she did not know what the purpose was and had nothing to do with it. Of course she admits that after the perpetration of the crime she did go to Boston and did live with Errico on the proceeds thereof, but the district attorney claims that such facts, after the event, did not make her a principal and accessory before the fact or an accomplice; that at best she was an accessory after the fact and that the test is, could she have been convicted if indicted herself for the forgery or uttering.
In People v. McGuire (135 N. Y. 639) a man and a woman were attempting to swear upon each other the perpetration of a murder. The question came up as to the status of a third person named Brazington. The court said: “ A distinct confession of his guilt [that is, McQ-uire’s], made by him to
In People v. Zucker (20 App. Div. 363; affd. on opinion below, 154 N. Y. 770) the appellant was convicted upon- the testimony of a witness, Schoenholz, of arson, who swore that he set fire to the premises and that he was employed by Zucker to do so. The question was as to the corroboration of the statements of this witness. The court said: “ The record contains corroborating evidence, and it is to be found in the testimony of the witness Meyers, who swore to a conversation between himself and Zucker, the prisoner, which conversation took place at about the exact time the fire occurred. * * * It is claimed that this evidence is subject to the same criticism as that made of Schoenholz’s, namely, that Meyers also was an accomplice. I do not think that Meyers can be regarded as standing in that relation to Zucker. He was not particeps criminis ; he was in no way connected with the crime itself; he had nothing to do with its commission; was not concerned in. it, but according to the testimony posi
In People v. Bright (203 N. Y. 78) Bartlett, J., writing for an unanimous court, said: “ ‘ To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an accessory before the fact.’ (People v. Zucker, 20 App. Div. 363, 365; affd. on opinion below, 154 N. Y. 770.) There is no view of the evidence which would have justified the jury in convicting the witness of the crime of which they found the defendant guilty. ”
In People v. Elliott (106 N. Y. 288) the defendant was indicted for the crime of forgery in the second degree, charged as a second offense, in uttering a forged draft purporting to be drawn by a Montreal bank on the National Bank of the Republic of New York. The principal evidence against him at the trial was that of an accomplice, and it was claimed on his behalf that the testimony of the accomplice was not sufficiently corroborated. The General Term held that the testimony of the accomplice was not sufficient corroboration, and on that ground reversed the conviction and granted a new trial. The Court of Appeals, Earl, J., writing, reversed, and in regard to evidence that the defendant and the accomplice were acquaintances and had been seen together in Rochester and other places without explanation of his presence and various slight things of that kind, the court said: “All these circumstances certainly have some tendency to corroborate the evidence of the accomplice, and they seem to us to satisfy the requirements of the section of the Criminal Code
These cases fully sustain the trial court.
All the other matters pressed upon our attention have been carefully considered, but none are serious enough to require discussion.
On both counts there was legal evidence sufficient to justify the verdict, and no errors were committed which would warrant . reversal.
The judgment should be affirmed.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Judgment affirmed.
Code Crim. Proe. § 399.— [Rep.