Parmelee v. People

15 N.Y. Sup. Ct. 623

• Court: New York Supreme Court
• Decided: October 15, 1876
• Status: Published

Opinion

MulliN, P. J.:

To entitle a prisoner to a verdict of not guilty upon an indictment for affixing the name of another person to a written instrument without authority, it is not necessary he should prove express authority to affix the name of such other; • it is enough, that from the facts proved it is made out that he had fair grounds for considering that he had such authority.” (Rex v. Forbes, 7 C. & P., 224; Reg. v. Parish, 8 id., 94; Same v. Beard, id., 142.)

In the case last cited OoleRidge, J., says: If a person had reasonable grounds for believing from the acts of the party that he had authority to accept, and did in point of fact act upon that, it could not be forgery.

Harvey Parmelee, one witness whose name is alleged to be forged, testified, on direct-examination, that he never authorized the prisoner, or any one else, to affix his signature to the note.

On cross-examination he testified that he had signed paper to aid the prisoner, and that he, the prisoner, applied to the witness to allow him to use his, witness’, name. He could not state any of the conversation. He says, I may have given him encouragement, but did. not intend to authorize him to use my name.

The witness subsequently testified that no application was made to him to allow the prisoner to use his name. He also said he did not think he gave the prisoner encouragement that he might use his name, but he said something that he might have taken as encouragement.

If the prisoner might have taken the language of his father as encouragement that he would allow him to use his name, it must be assumed that he did take it as encouragement, or as partial consent to use his name.

The witness declared himself unable to state any part of the conversation in which the father used language, which the prisoner might have taken as encouragement that he might use his name; it became proper, on cross-examination, to ascertain the degree of confidence he had in the accuracy of his memory, as to the meaning and effect of what he did say in answer to the request to allow the use of his name. In the absence of the language used there was no other way to ascertain what ground the prisoner had for believing he had authority to use his father’s name, than by the question put to the witness and which was excluded.

In view of the relation between the prisoner and the father, the inability of the latter to state any portion of the conversation between them, when leave was asked by the former to use the father’s name, the question put by the prisoner’s counsel on cross-examination was competent and should have been allowed to be answered.

The conviction must be reversed and a new trial had in the Court of Sessions, to which the proceedings are remitted.

Present — MulliN, P. J., Smith and Taloott, JJ.

Conviction reversed and new trial ordered in Court of General Sessions of county of Genesee, to which the proceedings are remitted.