Illch v. Mutual Benefit Life Insurance , 104 N.Y.S. 297 ( 1907 )

Sewell, J.:

The complaint in this action is based- upon a life insurance policy ' issued by the defendant,- The Mutual Benefit Life Insurance: Company, to Meier Illch in 1864 for $1,000. The policy was pay able, to . Babette Illch, his .wife, if she survived him; if she did not, then to their children.

The defendants claim that "the policy ..was assigned to thé'insured December 19, 1893, by the plaintiff and her four children; that it was assigned December 26, 1893, to .the defendant, The Mutual Benefit Life Insurance Company, as collateral security, for a loan of $237, and that Meier Illch assigned his interest in the policy October 5, 1899, to the defendant, The Mew .Hampshire Fire Insurance ' Company, for the purpose of securing a debt of $717.10. The assignment of December 26, 1893, purports to have been signed, sealed and delivered by Meier Illch, Babette Illch and their four children in the presence of James L. McIIale, and' their signatures - to the assignment of Deceiiiber nineteenth appear to have been made in the presence of Julius H. Haas.

It was conceded upon the trial that the- defendants had tlie affirmative, -and tliat the only question in the case was the validity of the first two assignments, 'whether each- of them had the- genuine signature.of the plaintiff..' , ..

A' prima facie ease was made against the plaintiff by.the evidence of- expert.witnesses and by the introduction of the assignments . in evidence-as “to the signature of Babette.Illch.” , .

To meet this testimony the plaintiff called the two persons whose names appear as subscribing witnesses, Each of. them denied his . signature and testified that none of the persons whose names were attached to the instrument signed it in his presence.

The plaintiff testified that she did not assign the policy, and two of her children were called and allowed to testify, under the defendants’ objection, that they did not sign either of the papers in question.

The principal question for our determination relate? to the ruling of the trial court upon the admissibility of this evidence.

We think the evidence was properly admitted under the circumstances of the case. It is a general rule that a distinct crime unconnected with another cannot be given in evidence against a prisoner, but it is well settled that evidence of another offense is admissible when- the two crimes are a part of the same common scheme or are so'related to each other as to show a common motive or intent running through both. In Shaffner v. Commonwealth (72 Penn. St. 65) the court said: “ To make one criminal act evidence of .another, a connection between them must have’existed in the-mind of the actor,- linking them together for some purpose he intended to accomplish.” In People v. Wood (3 Park. Cr. Cas. 681) proof of other crimes than the one alleged if connected with it by unity of plot and design and influenced by a single motive, .was held admissible. Underhill in his work on Criminal Evidence (§ 88) says: “ In order that one crime may be relevant as evidence of another, the two must be connected as parts of a general and composite scheme or plan. * * * Some connection between the, crimes must be shown to have existed in fact and in the mind of the actor, uniting them for the accomplishment of a common purpose, before such evidence can be 'received. This co'nnection. must clearly appear from the evidence. Whether any connection exists is a judicial, question.”

I think it may fairly be assumed from the fact that each instrument purports to have been signed, sealed and delivered by the plaintiff and her four children in 'the presence of a subscribing witness, that all 'the signatures wére made upon the same occasion. However that may be, if they were signed at different times and two or more crimes were thereby committed, I think there is sufficient evidence to justify the conclusion that they all had the same origin; that each crime was committed in aid of the other and was a .part of á scheme or plan which resulted in a transfer of the policy.

It is immaterial that the signatures of the. children were not necessary to give validity to. the assignments or to a transfer of their,contingent interests in the policy. If they were thought to be and were added to effectuate a. conveyance of the policy., I think the evidence was clearly competent.

The case of Booth v. Powers (56 N. Y. 22), cited and relied upon by the appellants, is not in conflict- with these views. It was there held, by a divided court, that evidence offered that another note, made at the same time, by the same parties, of the same tenor and for the same consideration, but payable'at a different time, was altered, by the payees, in the same particular, after it came into their hands was properly excluded. , •

The evidence here complained of was directed at one paper and was apparently intended to rebut and destroy the inference that might be drawn from, and the use made of the portion put in evidence by the defendants.

I think the case was well disposed of in the court below .and that the judgment appealed from should, therefore, be affirmed, with costs. , - . .

All concurred, except Smith, P. J., and Cochrane, J., dissenting.

Judgment and order affirmed, with costs.