Holmes v. People

15 Abb. Pr. 154

Opinion

By the Court.

*—Mullin, J.

The only question that can be discussed on the writ of error in this case is, whether an offence is charged in the indictment for which the term of imprisonment imposed on the prisoner in the state-prison could be imposed.

That the indictment does not conform to the precedents of indictments at common law, must be admitted. But this court, in People a. Rynders (12 Wend., 425), held that in an indictment for forging a check, it was not necessary to allege that it was an instrument in writing, being or purporting to be the act of another, by which a pecuniary obligation is or purports to be created, or by which rights or property are or purport to be transferred, &c. The want of these allegations is one of the principal objections to this indictment, and we must hold it, therefore, valid without them.

Ohief-justiee Savage, in delivering the opinion of the court in that case, says, in substance, that in any indictment for forgery, which alleges that the defendant falsely made, forged, and counterfeited an instrument within the description of the statute, and in which the instrument so alleged to be forged is set out in hm verba, is a sufficient description of the circumstances within the statute.

This being the law, this indictment is sufficient.

The first count charges the defendant with forging the deed. He is one of the grantors. If the forging thus charged means affixing to it the name of the pretended grantor, it would be difficult to see how the party could forge his own deed.

The only offence he could commit, touching the execution of the deed, would be by affixing the name of the wife. If the indictment is sufficient in form, the particular way or manner in which the forgery was committed was the subject of proof; and as the testimony is not before us, we must presume that such was the crime proved.

The judgment must be affirmed.

Present, Ingraham, P. J., Gould and Mullin, JJ.