103 N.Y.S. 627 | N.Y. App. Div. | 1907
On or about March 30, 1904, one E. M. Devine delivered to the Ross Lumber Company, a copartnership doing business under that name, a check for $215, payable to its order. That check was never indorsed by or with the authority of such copartnership; Sub
The defendant’s testimony was not corroborated, and in rebuttal both Boss and Devine- testified that they had no.conversation over the telephone with the defendant in relation to this check. Devine testified that he first knew that the Boss Lumber Company’s indorsement had been forged some seven or eight months after the check had been given ; that Whitcomb came to him, claiming to represent ■ the Boss Lumber Company and, believing his statements, Devine delivered the check to him for the Boss Lumber Company.
Section 521 of the Penal Code provides that “ á person who, knowing the same to be forged, or altered, and with intent to
If the defendant, knowing that the name of the Boss Lumber Company had been forged on the back of this check, deposited the same in his bank for collection, the proceeds to be credited to his private bank account, he was guilty within these provisions of the Penal Code of forgery in the second degree. The testimony seems to be substantially uncontradicted that the name of the Boss Lumber Company was indorsed on the back of this check by a person other than one connected with the copartnership doing business under that name, and without authority to make the indorsement; that the defendant wrote his name upon this forged indorsement, deposited the check to his credit, collected the proceeds, and applied such proceeds in such manner as he desired. Two of the elements, therefore, of uttering a forged instrument are substantially undisputed. The remaining questions were, whether the defendant knew that the indorsement upon the check was forged, and whether he uttered the same with intent to defraud. These questions were for the jury.
■ The learned trial court, in a very careful charge, explained to the jury their duty, expressly instructing them that they were the sole judges of the facts, and that it was the intention of the court to say nothing that should influence them in the least as to what the- facts
The defendant complains of the observation of the trial judge that there was much in the evidence “ which establishes beyond all cavil some of the essential facts necessary to be proved.” But that was a correct statement, as the fact that Menton actually wrote the name of the payee on the back of the check, and that subsequent to that time the check was delivered to the defendant, and that he indorsed and deposited it in his bank for collection, were conceded b'y the defendant himself. And the learned trial judge subsequently in his.charge stated to .the jury the questions which were in dispute and quite correctly instructed them as to their duty in relation to the disputed question of fact. There was no exception taken to this charge, except “in reference to the doctrine and principle of uttering, and also in reference to the definition of forgery in the first and second degree.” But the charge was clearly correct in these particulars. The court acquiesced in every request of the defendant to charge, except one, which was substantially a request to instruct the jury to acquit, and which was properly refused.
• The learned counsel for the appellant strenuously contends that nobody was defrauded and, consequently, that there was no intention to defraud. But that was clearly a question for the jury.. If this check was obtained .from the maker in payment of ■ a debt due to the Boss Lumber Company^ and that company never authorized any one to indorse or obtain the money upon it, and the defendant knowing this fact collected the money On the check the indorsement upon which had been forged, he uttered the check with intent to defraud, even though he intended to apply the proceeds upon the alleged claim against the Boss Lumber Company'. The maker of the check owed the Boss Lumber Company for lumber. He could only satisfy that indebtedness by paying the Boss Lumber Company. ' That he purported to do by' giving a check to the order of that company, and to collect that money from Devine by forging the indorsement of the Boss Lumber Company defrauded Devine or Devine’s bank of the money, for the transaction was not a. payment of the indebtedness due the Boss Lumber Company and did not discharge such indebtedness Unless the Boss Lumber Company
The learned counsel for the defendant also insists that the defendant did not have a fair trial. This seems to be based upon the fact that the court repeatedly during the trial interrupted by asking questions of the witnesses and insisting upon the district attorney’s conducting the prosecution according to the court’s idea of the order of proof and the questions which should be asked. We have read over this record with care and while it is true that in a number of instances the court interposed by asking questions and interrupted the course of the trial by suggestions as to the proper method of procedure by the district attorney there is nothing in the record which suggests that all of the rights secured to the defendant were not fully preserved and protected. Counsel for the defendant cross-examined at great length and he was not interfered with in presenting his defense or in cross-examining the witnesses produced by the prosecution. A large portion of the case is taken up with conversations between the court and counsel for the defendant, but I can find nothing that the court said or did which could have prejudiced the defendant. It is difficult to see how the jury could have come to any other conclusion, and upon the defendant’s own testimony he is guilty of uttering this forged check. He knew that the check had been given by. Devine to pay Devine’s debt to the Boss Lumber Company ; he knew that the check had been obtained by Whitcomb or Menton from Devine and had not been delivered to the Boss Lumber Company; lie knew that the name of the Boss Lumber Company on the back of the check had not been written by that company; nor does he pretend that he ever asked the Boss Lumber Company if they had authorized Menton or anybody else to indorse their name upon this check. The defendant was a lawyer and certainly chargeable with knowledge of' the general rules in relation to forgery, and that the payment of this check would not be a payment of Devine’s debt to the Boss Lumber Company unless the Boss Lumber Company either indorsed or authorized the indorsement of the check. Assuming that he asked whether the Boss Lumber Company had authorized Menton to collect the money from
■ There are many exceptions to evidence upon this record, but .none of them are entitled to consideration. Page after page of the case on appeal consists of disputes between the. counsel for the defendant and the court, and the arguments of defendant’s counsel on questions of evidence, which can have no possible relation to any question presented on appeal. We wish' again to express our disapproval of this practice. The insertion of this matter in the case can be of no possible benefit to the defendant and adds much to the difficulty of ascertaining what facts were proved. -
We think, from the whole case, that the defendant had a fair •trial and was. clearly guilty, and that the judgment should be afifirméd. ' . ’
Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment affirmed.