Citation Numbers： 19 N.Y. Crim. 514, 45 Misc. 86, 91 N.Y.S. 699
Judges： Goff
Filed Date： 9/15/1904
Status： Precedential
Modified Date： 1/13/2023
On the 21st day of April, 1904, the defendant was, by verdict of a jury, convicted of forgery in the third degree, and, on being arraigned for judgment, moved in arrest thereof on various grounds. A motion in arrest of judgment can be founded only on an objection to the jurisdiction of the court or on the ground that the facts stated in the indictment do not constitute a crime. Crim. Code, §§ 331, 467; People v. Buddensieck, 103 N. Y. 496, 5 N. Y. Crim. 69; People v. Menken, 36 Hun, 99; 3 N. Y. Crim. 233; People v. Kelly, 94 N. Y. 526; 2 N. Y. Crim. 23. There being no question as to the jurisdiction of the court, the motion therefore, will be considered only as resting upon the ground that the facts stated in the indictment do not constitute a crime. In substance the indictment alleges that the defendant did feloniously utter a certain false and forged letter purporting to' have been written and signed by one John B. Van Every, the second vice-president of the Western Union Telegraph Company, as follows:
“ Hew York, October 31, 1903.
“ To any employee:
“ Western Union Telegraph Company.
“ This will introduce Mr. J. O. Goelet, a personal friend of the management of this company. Any favors shown him will be duly appreciated by the corporation and myself.
“ Very truly,
“ J. B. Van Every,
“ 2d Vice-President.
which said letter the defendant knew to be false, and by the uttering of which the sentiments, opinions, conduct and rights of said John B. Van Every were misrepresented.
On this motion all of the essential allegations contained in the indictment must, by the verdict of the jury, be deemed proven; and, assuming them to be so* proven, the question arises whether the acts of the defendant constitute the crime of
Of these three essentials it contains but one, falsity, while from its language, either in parts or as a whole, it cannot be construed as a means by which another could be- defrauded or by which a pecuniary liability could be created. There is at common law another essential of forgery, and that is the intent to defraud, but that is an attribute of the person who forges or utters, and is a question of fact, independent of the elements which the writing itself must contain.
Therefore, since forgery, as defined at common law, cannot be predicated upon the writing made or uttered by the defendant, the conviction cannot be sustained unless, by recourse to statute law, authority be found which declares such writing to be forgery. If the statute in terms declares such writing to be a forgery, thoitgh devoid of some of the elements essential at common law, it is of little avail to either consider or cite authorities based on that system, or authorities from other jurisdictions where the law is not analogous to our own, and my attention has not been called to any case in a,ny jurisdiction which has been decided under a statute similar or substantially so to the statute under which this indictment was drawn.
In order to correctly ascertain the meaning.of the statute it is necessary that it be examined in the light of the following rules: (a) That the legislative intent must be taken as expressed by the words which the Legislature has used; (b) that those words must be taken in their natural sense and to intend what they mean; and (c) that where such meaning is plain there is no room for construction. Story, J,, in Martin v. Hunter, 1 Wheat. 326; Bronson, J., in Waller v. Harris, 20
The Penal Code, while consisting of many hundreds of sections, is, so far as its object and purpose are concerned, to be construed as a single statute; and it was enacted for the purpose of embodying in a single statute the system of criminal law applicable to the State1. People v. Jaehne, 4 N. Y. Crim. 478, 103 N. Y. 193. One of its objects, as expressed in section 7, is to define the nature of the various crimes, and in section 3 it defines a crime to be an act or omission forbidden by law. In section 11 it is declared that “ The rule that a penal statute is to be strictly construed does not apply to this Code or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.” The old rule of strict construction of a penal statute, therefore, does not apply, and in any event the construction of a penal statute must not be so strict as to defeat its plain intent (State v. Main, 31 Conn. 572), but it must be so construed as fairly to suppress the mischief and advance the remedy (Parkinson v. State, 14 Md. 184).
It must be borne in mind that the Code does not in general terms define forgery, w'hile it does define other crimes, such as homicide, robbery, larceny, extortion, etc.; and in order to ascertain what act or acts constitute forgery the several sections which treat of the subject, and their subdivisions, must be examined; and from such an examination it is clearly apparent that all of the sections and the subdivisions thereof are not interdependent or governed by a general definition.
Thus sections 509 and 511 severally declare that certain acts described and enumerated, when done with intent to defraud, shall constitute forgery. Section 510 declares that falsely certifying to an acknowledgment is forgery, but there is no mention of an intent to defraud. Section 514, in the first subdivision, declares that a person who falsifies or unlawfully and corruptly al
Section 515 declares that a person, who, with intent to defraud, or to conceal any larceny by any person, either alters or destroys an account, or makes a false entry, or willfully omits to make a true entry, is guilty of forgery.
Section 516 declares that a person who with intent to defraud forges a railroad ticket, or who sells, or who with knowledge receives, is guilty of forgery.
Section 517 declares a person who forges or counterfeits a stamp of the government, or who sells it with knowledge, is guilty of forgery.
An analysis of those sections and their subdivisions shows that the essential of forgery is, in two sections and one subdivision of another an intent to defraud; in another section, an intent to defraud or conceal;' in another section, an- intent to defraud or knowledge of the falsity; in one subdivision of another section, the doing of the act falsely or unlawfully or corruptly; in another subdivision of the same section, an intent to injure or defraud; in another subdivision of the same section, knowledge of the falsity; and in two different sections the doing of the act without an intent to defraud. If all forgeries were predicated on an intent to defraud, may it not be correctly assumed that the Legislature would have grouped all of the things enumerated and made their criminality depend on an intent to defraud, as in larceny, for instance, where the criminality of all the acts prohibited is predicated on an intent to deprive o-r defraud? Evidently the Legislature did not intend such a general classification; for, while it describes a variety of acts
In other words, if a crime be fully defined whatever satisfies that definition amounts to a crime. Can the power of the Legislature be questioned to declare an act, otherwise indifferent, criminal either with or without a particular intent ? Thus the sale of liquor within prohibited hours is made a crime, without regard to any particular intent; so the false certification of an acknowledgment, or the counterfeiting of a postage stamp, is declared to be forgery, irrespective of any particular intent, and intent here is used in the sense of a necessary ingredient of the crime, which must be alleged and proved.
By chapter 53 of the Laws of 1874 (since repealed and its sense incorporated in an amendment to the Penal Code), the Legislature declared a person who presented a forged letter of recommendation, and thereupon obtained employment, to be guilty of a misdemeanor, and such crime was not made to depend on an intent to injure or defraud.
In no act of the Legislature is the intent made more plain to differentiate acts which are declared forgeries, because of the different mental elements necessary to each, than in section 514 of the Penal Code, defining forgery in the third degree. In the first subdivision it is necessary that the acts described be done corruptly and unlawfully; in the second, that the acts be done with intent to injure or defraud; in the third, that the acts be done with knowledge of their falsity; and in the fourth, that the acts be done with intent to defraud. These subdivisions were inserted in the Code by different enactments. See Laws of 1881, chap. 676; Laws of 1884, chap. 378; Laws of 1892, chap. 692.
And it is also clear that the framers of those subdivisions had in mind the difference between the things objective, as applied to property, and the things subjective, as applied to personality. Thus the acts enumerated in subdivisions 2 and 4 depend for their criminality on an intent to defraud, that is, to defraud some person of property; while the acts enumerated in subdivisions 1 and 3 depend for their criminality upon a mental element attributable ti> the person, and not necessarily affecting property. The distinction between a prohibited act, the commission of which of itself constitutes the crime, and an act which depends for its criminality on an intent to defraud, was pointed out in People v. Wiman, 32 N. Y. Supp. 1037; 9 N. Y. Crim. 490.
Subdivision 3, under which the indictment was drawn, reads:
There are three component parts of the crime defined in this subdivision: (a) The uttering of a forged or false writing; (b) the knowledge of its falsity, and (c) the misrepresentation by the false writing of the sentiments, opinions, conduct or rights of another person. The uttering of the false writing is a fact, the knowledge of its falsity is a fact, and the misrepresentation is a fact which may be inferred from the false writing itself.
Did the writing in question misrepresent? The first clause of the letter: “ This will introduce Mr. Gíoelet,” misrepresented conduct; for conduct consists in behavior, action; and an introduction is an act. “ A personal friend of the management of this company,” misrepresented sentiment; for friendship is a feeling, an opinion, expressed by a sentiment. “ Any favors shown him will be duly appreciated,” misrepresented both sentiment and opinion; and “ Very truly, J. B. Van Every,” as a signature, misrepresented the right of Mr. Van Every to sign his name tO' his own letter. It is true that Mr. Van Every was not injured by any pecuniary loss; but a man may be injured in other ways than in his property interests. He may be injured in his feelings or reputation by a false assumption of his name and a misrepresentation of his opinion or conduct.
But it is not necessary that it should be either alleged or proved that he was injured; it is the misrepresentation which this subdivision of the law condemns. The sense of the statute
Taking the plain language of the subdivision in its ordinary sense and meaning, and bearing in mind the statutory enactment of the Code, its definition of crime (§3), its objects (§7), its rule of construction (§ 11), there is no difficulty in its construction, or in ascertaining and giving full effect to the intent of the Legislature. And if there be any difficulty it can arise only from the confusion consequent upon an endeavor to reconcile the statute with the formulae- of the text-books and the decisions and dicta of judges upon questions of forgery under statutes wholly dissimilar.
As an illustration of the latter, Waterman v. People, 67 Ill. 91, is urged as parallel and in principle controlling. In that case the defendant was convicted of forgery for having uttered a false letter of introduction promising to reciprocate for favors shown. The Supreme Court reversed the conviction, holding that the letter, if genuine; could not affect legal rights, and was, therefore, not a subject of forgery. But the statute under which Waterman was indicted made the gravamen of forgery an intent to damage- or defraud by a false writing purporting to create or diminish a pecuniary demand or obligation. See Crim. Code, § 105; Rev. Stat. of Illinois, 1874, Hurd’s edition.
In California it has been held that under the Code it is not necessary that the writing, if genuine, should be the basis of a
When the Legislature declares an act to be a crime, and, in defining the act, makes use of words to convey its meaning and intent which in their ordinary sense are plain and unequivocal, a court is bound to give full force and effect to such meaning, and intent and to reject a construction which requires the use of words not in the statute, and an interpretation which would defeat the plainly expressed will of the Legislature. The question is not that the Legislature should have used certain terms in order to conform to certain preconceived notions as to what constituted forgery; but, has it, in the precise language used, defined as forgery the acts alleged in this indictment and proven upon trial ? In my opinion it has, and the motion is, therefore, denied.
Motion denied.