Vincent v. People , 5 Park. Cr. 88 ( 1860 )

By the Court, Sutherland, J.

There is no bill of exceptions in this case, nor any complete record.

The only questions in this case relate to the sufficiency of the indictment, and to the form of the verdict and consequent judgment.

The indictment, if it charges any crime, charges forgery in the first degree, after conviction of a previous felony. The verdict and sentence were for forgery in the first degree, without noticing the alleged conviction of a previous felony. As we have nothing but the indictment and entry of judgment before us, we cannot say whether there was on the trial any proof of a previous conviction; but whether there was, or was not, the form of the verdict was well enough. Certainly the prisoner cannot complain that the jury did not take into consideration his previous conviction, if proved;

The only question in the case, then, is, whether the indictment charges the offense of forgery in the first degree.

The allegation in the indictment is, that the prisoner feloniously did forge, &c., “ a certain instrument in writing, commonly called a certificate, the same being a certificate of the acknowledgment, by one Sarah J. Lyon, of a certain mortgage, the said mortgage being an instrument which, by law, might be recorded,” setting forth the certificate in hcee verba.

The certificate, as thus set forth, purports t’o have been made by Abram W. Kennedy, commissioner of deeds, but it has no venue, that is, the acknowledgment which it certifies does not by it purport to have been taken in any particular county or city of the State, and there is nothing on its face to show of what county or city Kennedy was a commissioner. The certificate commences,

“ State of New York, County, ss: ”

The name of the county being omitted, otherwise it is in the usual form.

The statute (3 B. S., 5th eel, 949), declares the forging, &c., of “ any certificate or indorsement of the acknowledgment, by any person, of any deed or other instrument which, by law, may be recorded, made, or purporting to have been made, by any officer duly authorized to make such certificate or indorsement,” forgery in the first degree.

The indictment in this casé does not allege that the certificate was made, or (in words) that it purports to have been made by an officer authorized to take the acknowledgment or to make the certificate, but as the certificate is set forth in hcec verba, the indictment does, in effect, and sufficiently allege, that it purports, whatever the certificate as set forth in the indictment purports. (People v. Mynders, 12 Wend. R., 427; People v. Stearns, 21 Wend. R., 409.)

The question, then, is whether the certificate, as thus set forth, does purport to have been made by an officer duly authorized to malee it.

It purports to have been made by Abram W. Kennedy, as a commissioner of deeds, and a commissioner of deeds is an officer authorized to take and to certify the acknowledgment. of deeds, &c.; but they are local officers, appointed for particular counties and cities, and the statute declares that a commissioner of deeds shall, not take such acknowledgments out of the city or county for which he was appointed. (3 R. S., 46, § 4, 5th ed.)

The question is not whether the certificate, as set forth in the indictment, purports to have been made by a commissioner of deeds, but whether it purports to have been made by a commissioner of deeds authorized to make it, or to take the acknowledgment which it certifies. It certainly does not, for it does not purport to have been made, or that the acknowledgment was taken, in any particular county or city of the State.

The authority or jurisdiction of the officer depending on locality, it would seem to follow that the certificate, as set forth, cannot purport that Kennedy was authorized to make it, or take the acknowledgment in the absence of any venue, or of anything on its face to indicate in what county or city it was made, or the acknowledgment taken.

It hap been held that an affidavit without a venue is a nullity. (Cook v. Staats, 18 Barb. R., 407; Lane & Laing v. Morse & Studley, 6 How. Pr. R., 395.)

No crime, then, is charged in the indictment, for there is in it no allegation, formally or otherwise, as to one of the circumstances constituting the statutory definition of the crime, to wit, the authority of the officer. (People v. Allen, 5 Denio R., 76.) We cannot suppose that any possible evidence on the trial could have remedied this defect in the indictment, for no possible evidence could make the certificate, as set forth in the indictment, purport more or differently from what it does.

We are bound to presume that the evidence verified the indictment, but we have no right to presume that it verified facts or circumstances entering into the definition of the crime not alleged in the indictment.

My conclusion is, that the judgment of the General Sessions should be reversed.

Judgment reversed.