45 N.Y.S. 49 | N.Y. Sup. Ct. | 1897
At the last September term of the Supreme Court the defendant was indicted by the grand jury for the crime - of forgery in altering and forging an order of the Surrogate’s Court of Erie county. On the same day and at the same time the grand jury also presented to the court another indictment against the defendant for the crime of deceit, “.With intent to deceive the court and a party to an action and proceeding,” under section 14.8 of the Penal Code. Both indictments are indorsed by the clerk as having been filed on the 9th day of October, and the. defendant arraigned on the same day on both indictments, the clerk entering in his minutes the indictment for forgery, first.
The defendant moves to quash the indictment for forgery on the ground that it is “ deemed to be superseded ” by the indictment for deceit, claiming it was the second indictment found for the same offense or for the same matter. The defendant" also demurs to the indictment for deceit on the ground that the facts set forth in the indictment do not constitute a crime. Both motions were made at the same time and may be disposed of together. The questions will be considered in the order stated.
Section 42 of article 2, title 4, chapter 4 of part 2 of the Revised Statutes, page 1941 (9th edition), provides.: “ If there .be at any time pending, against th.e same defendant, two indictments for. the 'same offense, or two indictments for the same matter, although
In The People v. Rynders, 12 Wend. 425, the defendant was indicted for forgery in signing the name of Graves & Merrick by Henry Allen, who was the agent of Graves & Merrick, the defendant representing himself to be Henry Allen, such agent. On the day succeeding that on which the indictment for forgery was found another indictment was found against the defendant for the same matter in falsely representing and personating one Henry Allen, and in such assumed character receiving the sum mentioned in the forgery indictment, namely a check less the amount of discount. On reviewing the case in the Supreme Court, Justice Savage, after quoting the section of the Revised Statutes as above, said, “ The answer to this objection is, that the offenses charged were entirely distinct, and I see no reason why the defendant might not be punished for both. The one is for forgery. That offense was completed by the act of signing another person’s name with intent to defraud.* * * The act of personating Allen was not necessarily connected with the forgery, nor can the personating of Allen and the forging the check be considered the same offense or the same matter.”
It is diffichlt to determine from the facts before the court which indictment was first found. Both were found at the same term and presented by the grand jury in open court, and filed with the clerk on the same day and at the same time, although it is stated in the moving papers that the defendant was first arraigned on the forgery indictment.
Section 144 of the Code of Criminal Procedure provides that “An indictment is found * * * when it is duly presented by the grand jury in open court, and there received and filed.” It
judgment order or decree of any court.” The indictment is sufficient to charge a crime under this section of forging an order, and all of the necessary facts aré alleged to that end.
Section 148 of the Penal .Code provides for a distinct offense and requires a statement of facts which may or may not constitute the crime of forgery. The proof to make out a ease is entirely different, and requires a different kind of evidence to convict of this offense. While some of. the facts alleged in the forgery indictment are necessarily involved in the indictment for deceit, it does not thereby become the same offense, nor the “ same matters ” as are alleged to constitute the crime of forgery. I am, therefore, of the opinion that both indictments can stand, and that the forgery indictment is not superseded by the indictment for deceit.
The defendant demurs to the indictment for deceit on the ground that the facts set forth in the indictment do not state a crime. Section 148 of the Penal Code provides: “ That an attorney or counselor who is guilty of any deceit or collusion with intent to deceive the court or any party,” is guilty of a misdemeanor. Substantially the same language is used in section 70 of the Code of Civil Procedure, which provides a civil remedy for the injured party and also declares it to be a misdemeanor.
A party must, under this statute, be guilty of “ deceit,” and if he is guilty only of an intent to deceive, the offense does not fall within the statute. The statute does not define what deceit is, and its meaning must be sought elsewhere. It is not an unusual word in our law books, and was an offense at common law. Before this statute there was no punishment by indictment for imposing upon or deceiving a court by an attorney who might gain some advantage by sharp practice, false statement or in withholding some fact from the court which he was in good faith bound to disclose.
■ It is the claim of the learned counsel for the defendant that to be guilty of deceit a person must have made fraudulent representations resulting in damage and the" inability of the person damaged to prevent the fraud. In an action for damages for deceit it is undoubtedly a correct statement of the rule, under .the well-known maxim, that no action for fraud without damages can be maintained. In a. civil action deceit or fraud must be followed by damages, but such is not necessarily the rule in criminal actions. The statute makes many offenses punishable where no damages have resulted, such as forgery, counterfeiting and attempts to commit crime. So it is competent for the legislature to declare that any person .practicing deceit may be punishable as for a crime.While many definitions for deceit' are given in the books, and in some, that the person practicing deceit must accomplish something in the way of damage to' another, it does not seem to me. that it necessarily follows that a party may not be guilty of deceit in a criminal sense even though no damage results. In this case it means the quality -of being false or misleading. The concealment or perversion of the truth, a trick or device which tends to mislead another although not necessarily accomplishing that result. When a person uses means which are deceitful or which tend to deceive the court or another person, such as lying or producing false papers, it would be too strict a definition to hold that although he intended to deceive, but as he failed in accomplishing any result he was not, in fact, guilty of using deceit.- I think this is the sense in which the legislature used the term. Otherwise the statute is to no good purpose. It was to protect the court against this very common offense. In Looff v. Lawton, 14 Hun, 588, the action was for damages. The court say, “ There seems to be no good reason for confining the term ‘ deceit; to common law or statutory cheats. * •* *
The common law, as well as the statute, relating to the offense of obtaining property by false pretenses, were adequate to the punishment of all such offenses, whether committed by lawyers or laymen. "x" * * There was no occasion, therefore, for another statute to punish, or to give an action for the deceit of lawyers, unless the legislature intended that the class of persons should be liable for acts' which would be insufficient to establish a crime dr a cause of action against citizens generally. .* * *' To mislead the court or a party is to deceive it, and if knowingly done, constitutes crim
The indictment follows the language of the statute and then states facts which if true are deceitful and fraudulent. If I am right in my construction of the statute, then the motion to supersede the indictment for forgery must be denied and the demurrer to the indictment for deceit overruled.
Ordered accordingly.