Rosekrans v. People , 10 N.Y. Sup. Ct. 287 ( 1874 )

Countryman, J.

The first objection raised by the demurrer presents the question, whether the indictment contains a criminal offense. It is insisted that the crime of forgery cannot be predicated upon the instrument, a copy of which is set forth in each count of the indictment. The statute provides that “ every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit * * any instrument or writing, being, or purporting to be, the act of another, by which any pecuniary demand or obligation shall be, or shall purport to be created, increased, discharged or diminished * * by which false making, forging, altering or counterfeiting, any person may be affected, bound or in any way injured in his person or property, upon conviction thereof shall be adjudged guilty of forgery in the third degree.” 2 R. S. 673, § 33. By another provision it is declared that it “ shall be sufficient if the intent be to defraud * * any county, city, town or village * * or any person whatever.” 2 R. S. 675, § 46. We think these provisions are sufficiently comprehensive to include the instrument in question. It is a writing purporting to be the act of another, by which a pecuniary demand purported to be created and by which another might have been affected, and it is alleged that it was falsely made, forged and counterfeited by the defendant with intent to defraud the county of Saratoga. The revisers in their note to the first section above cited state that it was intended “to reach every case of forgery that ever has been committed, or that ever can be committed,” not otherwise specially provided for, and their complete success in the expression of their intention has since been repeatedly affirmed by the courts. Noakes v. People, 25 N. Y. 380, 384; People v. Stearns, 23 Wend. 634, 637.

Section 45 (2. R. S. 675) does not limit the meaning of the provisions in the previous sections, nor was it intended as a general definition of the document described as an “instrument or writing,” but was merely enacted to remove all doubts in regard to the special cases therein mentioned, so that “ every instrument partly printed and partly written, or wholly printed with a written signature thereto,” should be included. Nor was it essential that a legal liability or obligation should have been created by the instrument upon which an action could be maintained. It was sufficient that it purported to create a pecuniary demand by which another might be affected or injured. If the instrument was complete in itself, and sufficient on its face to have induced an acceptance and allowance of the account by the board of supervisors, so that it might have produced injustice if the fraud had not been detected, it was the subject of forgery under the statute. People v. Stearns, 21 Wend. 409, 414; People v. Krummer, 4 Park. 217. Sow this document purports to he a formal bill or statement of an account on the part of a public officer for services against the county of Saratoga, setting forth the items in detail, with an affidavit of the claimant as required by law, constituting apparently a legal claim in proper form to be audited and paid. It is clearly within the letter and spirit of the statute, and would have been sufficient as the foundation of an indictment at common law.

The next objection is of a more special character and relates to each of the counts separately, as bad for duplicity. It is insisted for the defense that the bill or account, signature to the affidavit, and signature to the jurat or certificate, are different instruments or writings within the meaning of the statute, and hence that the forgery of each of them is a distinct offense, so that they cannot properly be united in the same count. The general rule is familiar that two or more separate criminal offenses cannot be joined in one count. The public prosecutor may, however, allege in the indictment, several felonious acts, which in themselves separately considered, are distinct offenses, so far as they are essential portions of one continuous transaction, or connected charge, and collectively constitute but one offense; and may set forth in different counts, various versions of the same charge or transaction, alleging different grades or degrees of the principal offense, provided as thus alleged they may all be merged in one, and do not necessarily constitute different and distinct offenses. But each count should contain only one version of one offense, or of one degree of the principal offense, and should be complete in itself and unconnected with the others for any purpose except perhaps special references to particular allegations to avoid unnecessary repetition. And it is never permissible to allege in one and the same count, facts which constitute separate and distinct offenses, created by different statutes and requiring different degrees of punishment. 1 Bishop’s Crim. Proc., §§ 432, 439, 449 and note; Reed v. People, 1 Park. 481; People v. Wright, 9 Wend. 193; People v. Rynders, 12 id. 426; Nelson v. People, 23 N. Y. 293, 297.

It is, however, a misapprehension of the legal effect of the document set out in the indictment, to call the account and the signatures to the affidavit and jurat three separate instruments, as they were all essential to the completion of the account, before it could be properly presented to the board'of supervisors (Laws of 1847, ch. 490, § 24) and all of them, therefore, constituted but one instrument. Unless the affidavit had been attached, the account itself would not have been a legal instrument on its face, and the crime of forgery in reference to it could not haveReen committed. Vincent v. People, 15 Abb. 234; People v. Harrison, 8 Barb. 560; People v. Galloway, 17 Wend, 540. And as the forgery of the account, and the signatures to the affidavit and certificate must be sustained under the same section of the statute, this disposes of the objection of duplicity as to them, if they were all made at one time and as one act or transaction. But the first count alleges each of these parts of the paper separately as different instruments, and each act of forgery as distinct and independent, and although it fails to make a proper allegation of the forgery of the signatures to the certificate against the defendant, it must be regarded as double within the rule. The second and third_ counts on the contrary, allege the forgery of the whole paper as one instrument, and as one act or transaction, and* are not, therefore, obnoxious to this objection. There is no force in the suggestion, that the alleged forgery is of the joint act of Johnson and Gorsline, whereas, their signatures purport to be attached separately to the affidavit and jurat annexed to the account, as the allegation is that the entire instrument was forged, and each of the signatures are attached to, and form a part of, the instrument. It is proper to allege in the same count an offense committed'upon two or more persons when it was the result of a single act, or was all one transaction. 1 Bishop’s Crim. Proc., § 437, and cases cited.

But it is also insisted that the second and third counts are bad for duplicity as well as the first, because the distinct offense of uttering the instrument is joined with the offense of forging the same. It is a sufficient answer to this suggestion that if the pleader intended to charge such an offense, which is ■ not apparent, he utterly failed. It is alleged in each of these counts, after averring the forgery of the instrument, that the defendant “ feloniously presented, and caused it to be presented for audit against the county of Saratoga.” There is no allegation that he “uttered and published it as true,” which is essential both at common law and under the statute. In order to render the counts objectionable, they must describe two offenses in adequate terms. Otherwise, the additional allegations will be regarded as surplusage. 1 Bishop’s Crim. Proc., § 440; Dawson v. People, 25 N. Y. 399, 402.

The fourth count is clearly good within all the authorities. An indictment which alleges that the defendant falsely made, forged and counterfeited an instrument within the statute, with intent to defraud, setting forth the instrument in Time verla, is a sufficient description of the circumstances to constitute the offense. Holmes v. People, 15 Abb. 154; People v. Rynders, 12 Wend. 425; People v. Clements, 26 N. Y. 193.

Judgment must, therefore, be ordered for the defendant on the first count, and for the people on the second, third and fourth counts, and the judgment below on the indictment must be affirmed with leave to the defendant to plead if he shall be so advised.

. Judgment accordingly.