People v. D'Argencour

Daotels, J.:

The conviction took place on the first count contained in the indictment. That was in the following form: The grand jury of the city and county of New York, by this indictment accuse Louis D’ Argéncour of the crime of forgery in the second degree, committed as follows: The said Louis D’ Argencour, late of the city and county of New York, on the twenty-eighth day of September, in the year of our Lord one thousand eight hundred and eighty-two, at the city and county aforesaid, with force and arms feloniously made and engraved, and caused and procured to be made and engraved, a plate in the form and similitude of a promissory note issued by El Banco Español de la Habana, for the payment of fifty centavos, the said El Banco Español de la Habana being a bank incorpo" rated under the laws of a foreign country, to wit, under the laws of the kingdom of ' Spain, without the authority of the said bank, 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.

And in support of the appeal it has been objected that this count was substantially defective because of the omission to aver an intent to defraud. As the statute was framed under which the indictment was found an averment of this' intent seems to have been essential, for the acts charged only constitute an offense when they have been committed with the intent to defraud. (Penal Code, § 511.) This section declares these acts to be a crime only when they have been committed with the intent to defraud. And that intent may, by subdivision 5, section 718, be averred in general terms without alleging an intent to defraud any particular person, but it clearly contemplates the necessity of such an averment. Without it the indictment was probably defective, and on account of that defect a motion might have been made in arrest of judgment. (Code Crim. Pro., §§ 467 and 323, sub. 4.) But if it was designed to take advantage of this defect, section 469 of the' Code of Criminal Procedure required the motion to be made for that purpose before or at the time when the defendant was called for judgment. No motion was then made on that ground in the case. A motion in arrest of judgment and for a new trial was made, but it was confined to the exceptions taken at the trial and to the judge’s charge, and did not, therefore, include this defect. The defendant, consequently, by his own act, deprived himself of the right afterwards to complain that the indictment was defective for want of an averment of an intent to defraud.

The law by which the bank mentioned in this count of the indictment had been incorporated was neither produced nor proved upon the trial, and on account of that omission a motion was made for the acquittal of the defendant. But it was not necessary that the law should, be produced to prove the fact that the bank had probably been incorporated. This point was considered in People v. Davis (21 Wend., 309), where it was concluded that the most general evidence of the incorporation of a foreign bank would be sufficient upon the trial of an indictment of this description. The same point was also considered in Sasser v. State (13 Ohio [Stanton], 453), and in Reed v. State (15 Ohio [Griswold], 217), where the same doctrine was also affirmed. And it was held that the incorporation of the bank could legally be proved for the purposes of the trial by a witness who might know the fact, or indeed even by general reputation.

This fact was proved in this manner by the witnesses Oeballos, who had been in the bank at Cuba, and testified to the fact of its existence, the issuing of bills by it which were received and circulated as money, and that it was an incorporated institution, and by McDonough, who was an engraver connected with the American Bank Note Company, which had engraved the plates from which the notes were printed, and which plates were then in the vaults of the American Bank Note Company. The testimony given by these two witnesses was ample for the submission of the point to the jury whether such a bank as was mentioned in the indictment existed and did business as a corporation at Havana, in the island of Cuba.

'That this bank issued notes of the same description as the plate found in the defendant’s possession, was also proved by the production of such notes and the testimony of these witnesses. The plate was not entirely complete, but sufficiently so to render it certain that it was designed to be used in printing notes of the description of those issued and circulated by the bank. The description' given of it by the witness Drummond fully established that to be the character of the plate. It was not entirely completed, but as far as that had been done it bore unmistakable evidence that it was intended to be used in printing these notes.

The circumstances which were proved in the case very satisfactorily connected the defendant with the manufacture and production of the plate. The plate itself, as well as the tools and implements which were traced tó his possession with a reasonable degree of probability, indicated that he was engaged in this business, and the evidence of his own witness, Seberce, confirmed this conclusion, for he endeavored to show by him that he had been in fact employed by some stranger to manufacture the plate upon the assurance that he was an agent of the Cuban government. This interview may have taken place without exonerating the defendant from the consequences of his act, for he could have had no good reason to suppose that in the performance of such a service it was intended for anything else than to defraud the public or the bank by means of the manufacture and circulation o* spurious currency.

The evidence did disclose the fact that the plate was made without the authority of the bank, for its own plates had been manufactured by the American Bank Note Company, which retained their possession. And there was not the - slightest probability that the defendant would have been employed by it or’ under its authority to reproduce another sample of this plate.

That the island of Cuba is a dependency of the kingdom of Spain and subject to its government are facts generally accepted and known, and the court could, therefore, take judicial notice of their existence. It was not necessary that they should be proved, for courts will generally take notice of whatever ought to be known within the limits' of their jurisdiction. (1 Greenleaf Ev. [7th ed.], § 6; Smith v. N. Y. Central R. R. Co., 43 Barb., 225; People v. Snyder, 41 N. Y. 397.)

And that the court may act upon its own knowledge of the existence of foreign governments seems to be practically assumed in the enactment of the subdivision of section 511 of the Penal Code, upon-which this indictment was presented. The case of Sanabria v. People (24 Hun, 270) is not an authority upon either of these points which can afford any support to this appeal. But so far as it goes it sustains the views upon which the trial took place.

Yarious exceptions were taken to the charge of the court, and to .its refusal to charge or repeat propositions which had been submitted but neither of them can be of the least assistance to the defendant. They, as well as the other points raised, were properly disposed of at the trial, and as the case was presented and determined no legal ground can be found for interfering with the result. The judgment should, therefore be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.