Miller v. . People

52 N.Y. 304, 1873 N.Y. LEXIS 254

• Court: New York Court of Appeals
• Decided: February 25, 1873
• Status: Published

Opinion

The counsel for the prisoner claims that there was a variance between the indictment and the proof, in that the forged check produced at the trial bore the indorsement of the payees, while the indictment set forth the check only without the indorsement. There was no averment or proof that the indorsement was forged. The charge was of forging the check and uttering it as true. The check was a complete instrument without the indorsement. The indorsement did not form part of the check, but was a distinct contract. It constitutes no variance, though not set forth in the indictment. (Hess v. State of Ohio, 5 Ohio R., 9; Com. v.Ward, 2 Mass., 397; 2 Russell on Crimes, 460.) The internal revenue stamp clearly formed no part of the instrument, and the omission to describe it constituted no variance. (People v.Franklin, 3 Johns. Cases, 299.)

The judgment should be affirmed.

All concur.

Judgment affirmed.