People v. Altman ( 1895 )

STOVER, J.

The appeal is from a conviction of forgery in the second degree, had at the Warren county sessions, December, 1894. The indictment is as follows:

“The said James Altman, on the 5th day of September* 1894, at the village of Glens Falls, in this county, feloniously did falsely make, forge, and counterfeit a certain check or order on the Glens Falls National Bank for the payment of money, in form and manner and to the tenor and effect following; that is to say:

“ ‘Glens Falls, N. Y., Sept. 6th, 1894. No. 4. Glens Falls National Bank, pay to bearer ($25) twenty-five dollars. James Altman.' “—And with intent to defraud one Rufus M. Cole did feloniously, upon the back of the above-mentioned check, falsely make, forge, and counterfeit the name, indorsement, and signature of one Henry H. Bush, the same purporting to be the act of said Henry H. Bush, whereby a pecuniary demand against said Bush to the amount and value of twenty-five dollars, purported to have been created, which said falsely made, forged, and counterfeited signature in tenor and effect is as follows, ‘H. H. Bush,’ and offered the same in payment for certain goods, wares, and merchandise, which he, said James Altman, had at the time and place above mentioned purchased of said Rufus M. Cole, with intent to defraud said Oole, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York, and their dignity.”

Defendant demurred on the ground that more than one crime was charged in the indictment, and that two separate and distinct crimes were charged in the indictment. The demurrer was overruled. The defendant pleaded not guilty. The defendant moved an arrest of judgment on the same grounds as was the demurrer, which was denied, and appeal is taken to this court.

I think the conviction should be affirmed. The indictment itself would have been complete without the allegation of the offering of the forged check to Cole, and yet evidence of the offering of the check to Cole with intent to defraud might be proper, as a part of the transaction, and as evidence of the intention of the prisoner in the making of the forged instrument. I think the statement in the indictment that the prisoner offered the check to Cole with intent to defraud should be treated as surplusage, and as a statement of evidence which might be given upon the trial.

The other question which was discussed upon the brief of the appellant, viz. that the court erred in admitting the paper found upon the defendant at the time of his arrest, upon the ground that it was an invasion of the defendant’s right, in compelling the defendant to give evidence against himself, was fully discussed and finally settled in the case of People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, and no discussion of it is necessary here. I can discover no error which tended to prejudice any substantial right of the defendant, and the conviction should be affirmed. All concur.