People v. Cleary

173 A.D. 259, 35 N.Y. Crim. 52, 159 N.Y.S. 253, 1916 N.Y. App. Div. LEXIS 6543

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1916
• Status: Published

Opinions

Per Curiam:

The dissenting opinion states succinctly considerations which make for the defendant, and yet are consistent with a finding of his culpability. The very fact that Allison and the defendant had been friendly for years is an explanation of Allison’s silence as to the defendant’s wrongdoing. For Allison’s self-interest was ended when defendant took up the note, and Allison’s friendship was but manifested when he forebore to expose the defendant. Allison’s conduct from beginning to end was that of one who would shield, not pursue, the defendant. He was not even an informer, but was hunted out and compelled to testify for the prosecution or to admit that he was a willful liar. He does not strike one as astute enough to play the part of an arch hypocrite.

Naturally, the defendant denied his guilt; and, naturally, the bank officer who accepted the note for discount from the defendant testified that when he did so he believed that the note was genuine. The very fact that both Allison and the defendant were customers of the bank, that the defendant was accustomed to present notes for discount and had presented similar notes theretofore, might indicate that the officer would make and did make but a cursory inspection of such a note.

In the course of things, the defendant could have indorsed Allison’s name with little chance of detection, provided the bank officials accepted the paper. When it fell due the defendant had but to take care of it. The defendant testifies that this note went to protest because he was absent and could not return to his home before the close of banking hours. If defendant had taken care of the note on its due day, Allison would not have received notice of protest. The fact is not without significance that when defendant did take up the note by part payment and a renewal, another, not Allison, was the indorser of the renewal note.

The note itself was not produced at the trial. Naturally it would have been returned to the defendant. A genuine note produced by him would have made for him, not against him. On the other hand, a forged note might not have withstood scrutiny or the testimony of witnesses skilled in penmanship or well acquainted with the signature of Allison. Defendant would explain the absence of the note by his general custom of destroying such vouchers, or by the fact that, after he had been apprehended for another crime, his safe was taken into the possession of the district attorney.

Defendant was facile as a penman, familiar with Allison’s handwriting, accustomed to present notes for discount, and had presented successfully a series of similar notes which he insists were genuine.

Save for the absence of the alleged forged instrument the case necessarily turned upon the truth of Allison or the truth of the defendant. For the testimony of the bank official, as we have indicated, was naturally exactly what it would be unless he confessed himself a party to the forgery or neglectful in his duties.

In People v. Poulin (207 N. Y. 78) the court, per Willard Bartlett, J., say: “ The fact that a jury in a criminal case has chosen to believe one set of witnesses rather than another set, upon an issue where the conflict between them is irreconcilable, affords no ground in and of itself for interfering with the verdict. * * * To justify a reversal on the facts under such circumstances, the appellate court must be able to detect some reason why the version which has been adopted by the jury should have been rejected.”

The judgment is affirmed.

Jerks, P. J., Thomas, Carr and Putnam, JJ., concurred; Stapleton, J., read for reversal.