19 N.Y.S. 360 | N.Y. Sup. Ct. | 1892
The indictment charged the defendant with the crime of forgery in the second degree, in that on the 14th day of June, 1887, at the city of Hew York,- he.feloniously forged the name of 0. Shulhoff on the back of a check for $1,750 on the national Shoe & Leather Bank; C. Shulhoff being the payee of the check, and the defendant having received the check as her attorney, in settlement of certain claims against an insurance company. Upon the trial C. Shulhoff, who was Mrs. Clara Shulhoff, and the wife of one Richard L. Shulhoff, testified that she never authorized Loew to put her name on the back of the check, and that she never received any of its proceeds. She admitted that hei husband acted for her in all business transactions, signing checks and receipting bills, ¿nd that in no instance did she sign her name. The defense was that the check was indorsed by the authority of the husband, and Loew testified to such authority. This, again, was denied by Mr. Shulhoff, and the question of veracity was fairly submitted to the jury. The difficulty, however, is that the learned court ruled out evidence which was competent upon this latter issue. If it was competent to show authority from the husband, and proper to permit its denial, it was equally competent to corroborate either side on that head. Yet, after permitting Mr. Shulhoff to testify that he never knew of the existence of the check at the time it was indorsed and collected,—never, in fact, spoke to Loew about it, and consequently never authorized its indorsement,—the learned court refused to permit Loew to prove by a witness named David Reiss that he (Reiss) heard a conversation between Shulhoff and Loew, in the latter’s office, in which it was “ understood and agreed that Loew should receive the money arising from the settlement of the insurance, and that, when he received the check, he (Loew) might indorse it in Shulhoff’s wife’s name.” Clearly this was error, and as the issue of the husband’s authority was submitted to the jury the error must have prejudiced the defendant. We think,
The defendant was not guilty if he had fair ground to consider that he had authority to indorse the check, and upon that head he had a right to show the circumstances under which the act was done. It was error, also, to hold the defendant to the strict terms of the written power of attorney which Mrs. Shulhoff gave to her husband. She might have given her husband other and verbal authority at any time, and the defendant should have been permitted to cross-examine her as to any such verbal authority, or as to any previous declarations which she may have made with regard thereto. It was error to exclude this cross-examination upon the ground of the existence of a written authority.
It was also error to decline to charge, as requested, “that if the jury believe that Mr. Shulhoff directed or told Mr. Loew to sign that check in the name of his wife, and Loew in good faith believed that Shulhoff had the authority, they should find the defendant not guilty. ” We think the proposition was correct, and that the defendant had a right to its submission in this concrete form. The point was hardly covered by a general statement that the jury “must find affirmatively that, when Loew put the indorsement on the ■check; he did so for the purpose of cheating and defrauding.” This statement was made in response to the request to charge the specific proposition, and the jury may well have inferred that the intent to cheat and defraud was sufficient even if Loew in good faith believed that Mr. shulhoff had authority to direct him to indorse the check in Mrs. Shulhoff’s name, and in fact ■did so direct him. The judgment should be reversed, and a new trial granted.
All concur.
