People v. Kingsley

2 Cow. 522 | N.Y. Sup. Ct. | 1824

Curia.

The evidence of this crime was most clear ; and the only question is, whether the indictment is sufficiently certain to warrant us in giving judgment. The indictment excuses the want of a more particular description, ]by averring that the bond was. with the defendant. There is no doubt of the general rule, that the instrument forged, must be set. forth with particularity and certainty ; but to require this unqualifiedly, in all cases, without exception, would result in a failure of public justice. We think The Commonwealth v. Houghton, presents the true distinction. “ There are cases,” says Judge Sedgwick,, “ which will form just and necessary exceptions to this rule ; as where the instrument forged has been destroyed by the prisoner, or has remained in his possession,” &c. “ But,” he continues, “ in every such .instance, that the exception may be admitted, it must appear in the indictment what is the cause of the non-descnption of the instrumentgiving the present case precisely.

The general proposition, so often repeated in the books, that the instrument must be produced in evidence, is no more than the rule on the civil side, that the best evidence the nature of the case admits must be produced. Thb rule always yields, where the instrument is either lost, destroyed, or, as here, in the hands of the opposite party. This exception underwent full consideration in The Commonwealth v. Snell, (3 Mass. Rep. 82,) and the Judges were unanimous in its favor.

The evidence that the bond continued in the defendant’s possession, was sufficient. He presented it to Sinclair, and after this we have nd account of it.

Motion denied.

Note, The pfisonbr was sentenced to the Auburn state prison for 7 years.