131 N.Y.S. 733 | N.Y. App. Div. | 1911
On June 27, 1900, defendant caused to be recorded in the office of the clerk of Nassau county a paper which was in form a deed, and purported to convey property situated at Cedarhurst in that county, and also in Placer county, in the State of California. This paper.bore date May 25, 1893. Marie A. Valentine was the grantor and Elizabeth H. Valentine was the grantee named therein. The former was the wife, of
1. It is contended that the extraordinary Trial Term at which defendant was convicted was unlawfully constituted, because the place and time of this extraordinary term were designated by the Governor without action on the part of the Appellate Division. At the time of such designation there was statutory authority therefor. (Code Civ. Proc. § 234.) Such statute was not unconstitutional. (People v. Young, 18 App. Div. 162; People v. Gillette, 191 N. Y. 107; People v. Neff, Id. 210.)
2. The sufficiency of the indictment is challenged, first, because it does not charge a crime, and second, because it does not state facts sufficient to constitute a crime. An indictment must contain (1) the title of the action, specifying the name of the court to which the indictment is presented and the names of the parties; (2) a plain and concise statement of the act constituting the crime, without unnecessary repetition. (Code Crim. Proc. § 275.) The succeeding section, which prescribes the substantial form of an indictment, contains an accusatory clause naming the crime with which defendant is charged, followed by a specification of the acts constituting the same. (Id. §276.) This indictment accuses “ Benjamin E. Valentine, late of the Town of Hempstead, Nassau County, State of New York, of the crime of uttering, offering, disposing of and putting off as true, a certain forged, altered and fraudulent deed.” When this indictment was found, the statute provided that “A person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within this State, which. instrument, if genuine, might be filed or registered or recorded under any law of this State or of the United States, is guilty of felony.” (Penal Code, § 95.) And also: A person who, knowing the same to be forged or altered, and with intent to defraud, utters, offers,
If the signature in question was in. fact a forgery, which we think the evidence conclusively establishes, defendant’s guilty knowledge and intent are also conclusively established. He could not claim that, although forged, he was himself deceived as to the genuineness of the signature, and in good faith put the deed on record. Not only doe's his name appear as the subscribing witness thereto, but both at the time when he offered the deed for record and when examined as a witness in a civil action brought involving the title to the Dedarhurst property, he swore that he was present and saw Marie A. Valentine execute said deed.
3. Defendant contends that his trial was unfairly, conducted by reason of certain remarks made by the prosecuting counsel in his summing up, which might be construed, as criticisms upon defendant’s failure to take the stand in his own behalf. “ The defendant in all cases may testify as a witness in his own behalf, but Ms neglect or refusal to testify does not create any presumption against him.” (Code Crim. Proc. § 393.) Quite aptly the Court of Appeals has said: “ The law, so far as it can, protects a defendant who omits to be sworn, from having that fact weigh against him.” (People v. Tice, 131 N. Y. 651, 656.) This court in the Third Department-has said: “This statutory declaration is not in accord with experience, but its practical meaning is that the court and jury must, so far as they can, determine his case without prejudice or inference against him, founded upon his omission to testify.” (People v. Rose, 52 Hun, 33, 39.) Because of this danger of prejudice, a prosecuting officer should exercise scrupulous care not to" arouse the same by commenting upon such failure. Upon two- of the four occasions, when objection was made that indirectly attention was being called in the summing up of counsel to defendant’s failure to testify, we think that the remarks might be fairly attributed as well to failure to call witnesses other than the defendant to testify as to the facts then being con
Several exceptions were taken in the course of the trial to
The judgment of conviction in this case should be affirmed.
Jenks, P. J., Hirschberg, Burr, Woodward and Rich, JJ., concurred.
Judgment of conviction affirmed.