62 N.Y.S. 573 | N.Y. App. Div. | 1900
The defendant was indicted upon two counts, one for forging and the other for uttering a forged mortgage for $16,500; and upon the latter count of uttering the forged instrument he was convicted. That the mortgage was forged, and that by means of it Mr. and Mrs. Cauldwell were cheated out of the $16,500 which they gave to tbe defendant on the faith that the mortgage was a valid and subsisting security upon property situated on West End avenue, are not disputed. Although evidence was introduced to connect the defendant with the actual forging, the jury deemed it of insufficient weight, and failed by their verdict to convict the prisoner upon the first count of the indictment. The other count, however, that well
We, therefore, must approach the consideration of the questions-presented on this appeal, firmly impressed with the assurance that the defendant, a lawyer, who was trusted by the Cauldwells, deliberately violated that trust, and, for the pmqoose of cheating and defrauding them out of $16,500, gave them, as he was forced to concede, a forged mortgage. That the defendant was clearly guilty of the crime charged of uttering a forged instrument is demonstrable from his own evidence; and it is established beyond a shadow of doubt by the entire record. It would be a public calamity, therefore, if for technical reasons he should escape the punishment which lie has justly deserved and is now undergoing. His life, on his own confession, has been an ill-spent one, and his talents and energies have been devoted to cheating and defrauding others; and now that he-has finally been convicted, he should not be permitted to escape upon purely technical exceptions.
The Code of Criminal Procedure provides that the court, on an appeal, shall disregard technical errors which are not prejudicial to the rights of the person convicted (Code Grim. Proc. § 343), and, therefore, unless the errors which it is claimed were made during the conduct of the trial are of such a character as to prejudice the prisoner’s rights, the judgment should be sustained.
It is asserted that errors were committed in improperly admitting evidence and in rejecting improper evidence; but the error alleged upon which most stress is laid is in the mode of conducting the trial pursued by the assistant district attorney in interjecting extraneous and unjustifiable statements. These were clearly improper and reprehensible, but we are convinced that nothing that lie said or did added to the strength of the case presented, which clearly demonstrated the defendant’s guilt. The only palliation for the course pursued by the assistant district attorney consists of the fact that the defendant, who was conducting his own defense, and who was no-doubt convinced that he could not escape himself, adopted a course towards the court, and the witnesses, which was evidently deliberately planned with the view of obtaining exceptions to rulings upon which, when convicted, he might rely for a reversal.
In that case the conduct objected to occurred during the summing up of the evidence before the jury, and was more flagrant and prejudicial than the conduct of the prosecuting attorney here, which consisted principally of occasional remarks made during the course of the trial. The cases are distinguishable by the fact that in the present instance the learned trial judge observed the greatest care in removing the effect of these statements, both during the progress of the trial, and again in his charge at its close, by telling the jury that they must disregard such remarks and be controlled entirely by the evidence. The care taken by the court in correcting the statements and in protecting the prisoner’s rights remove this ground of complaint.
The appellant further insists that it was error to admit in evidence a letter, introduced during the testimony of an expert on handwriting, and purporting to be written by the prisoner, and directed to the district attorney, which, in substance, confessed that the defendant was guilty of many offenses, and which, if credited,
Another error claimed was in the ruling made upon the question of whether the forgery was one executed by a man named Elkins, or by the defendant. On this subject, however, the alleged errors could not be harmful or prejudicial for the reason that the jury did not convict the defendant on the first count of the indictment which charged him with having forged the mortgage, but on the second count, for uttering it.
There are other errors assigned, none of which are so serious as those discussed, some of them being technical in the extreme and having little or no possible bearing upon the conclusion reached by the jury.
Upon this record, therefore, we are of the opinion that notwithstanding the difficulty encountered by the trial judge in keeping the counsel within proper bounds, the defendant had a fair trial in which his legal rights were protected; and that the judgment of conviction should be affirmed.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Judgment affirmed.