People v. De Graff

1 Wheel. Cr. Cas. 203

Opinion

In this case no satisfactory evidence whatever had been laid before the court, to show the derangement of'De Graff. It was true, these witnesses had been introduced to show him insane, but how had they done it ? They testify, that, for the last six months, his conduct has been “strange that he has neglected his business—that he is 'not regular in his religious conduct—that he uses profane language : that he took no notice of one of the witnesses as he passed him in a wagon, &c. These are the circumstances relied on by the counsel for the prisoner ; that they were insufficient, was apparent to every person. It appeared by the testimony of Mr. Griswojd, that he saw no indication of a defective mind ; he selected the goods with great judgment, and his whole demeanor was shrewd and acute. ^His conduct from the beginning to the end, was indicative of his criminal intent, and not of an unsound mind.

The court observed to the jury, that the law was as stated by the District Attorney, that they were to judge from all the facts of the case, whether the prisoner was insane or not; for it appeared to be admitted by the learned counsel for the prisoner, that he committed the crime as charged in the indictment, but they alleged that he was insane at the time ; that pleas of insanit}7 were to be examined with care and caution—they are easily made, and often were made by prisoners as a last resort, when every other hope of defence had failed; and concluded by observing that there were some circumstances to which they would . . direct their attention.

1st. He represented himself to be Samuel Elmore. He must have thought at the time that he would have been detected.

2d. He returned to Esopus, to his family, in the same, neighborhood with the Messrs. Elmores.

3d. He denied to Mr. Wood that he purchased of him or any other person, but in his own name—saying he had often bought of him before. ,

4th. Mr. Wood followed him to Esopus, and onreclairaing his goods was sued for damages by De Graff,

5th. The testimony of Messrs. Dickinson, Hammond, and Burrell.

6th. His former good character, being a member of the church, &c.

There were other circumstances in the case, that were in favor of his being in a sound state of mind,

1st. He gave Mr. Griswold a reference to Mr. Waite, and Mr. Wood, a reference to Mr. Haight. An act of great caution and acuteness; for had he referred both gentlemen to the same house, it is probable he would have been discovered.

2d. He selected the goods with uncommon discretion and care ; and obtained a long credit.

3d. He designates the vessel by which the goods were to be sent—where she laid—her name, &c.

4th. He objects to Mr. Griswold to give an acceptance in the city—knowing it would lead to his detection.

5th. He goes home in the Steamboat, and tells Burrell he would settle his account, and did not seem deranged.

6th. When Mr. Wood charges him with falsely obtaining goods in the name of the Elmores—sues for the goods.

7th. When the officer goes to arrest him, he is foun d home, locked up in a bed-room.

8th. ^hen examined, declines answering.

9th. Why are not his relations and physicians produced the trial ?

The case was given to the jury under the above charge, and they returned a verdict of guilty, against the prisoner.

Note.-—Forgery is defined to be a false making or alteration of such writings as either at common law or by statute are its objects, with intent to defraud another. 2 East. p. 852.

A short and comprehensive view of the law relating to this subject will be considered in the following manner.

Forgery at common law.

Forgery at common law was only a species of fraud, and punishable as a misdemeanor. It was often intermingled with false personating to which it seems very closely allied. It was at one time doubted whether forgery could be of any other writings but those of a public kind. In Ward’s case, 2 Ld. Raym. 1461, it was decided that forgery at common law might be committed of any writing whatever, by which another might be defrauded; and this case has been decided to be good law in this country.

Ghitty, vol. 3, p. 780. 2 853 ’ 4 Blac" Comm, p.248. 2 Leach,. 910,

By Statute.

„ , b66 tne statutes, and the decisions unq ggi/ ■to 965.

In England, a great number of very penal statutes have been enacted by Parliament, defining the crime and declaring the punishment, and prosecutions in that country are always brought under one of those statutes: they have made the crime of forgery in almost every case capital. In New York, we have a statute, declaring what shall be forgery, and also fixing the punishment. Rev. L. vol. 1. p. 404.

Under these statutes, some of the leading principles that govern cases of forgery will be given. '

With what intent the act must be done.

The very essence of the offence is the intent to defraud. But it is perfectly immaterial whether any person is actually defrauded or not. Jf the forgery, appears to have been done with a view of gaining any advantages to the party himself, or prejudicing a third person, it is sufficient. And in Briggs’ case, 3 P. Wms. 119, it was held no ohjection that the forgery was found, by a special verdict, not to have committed for the' sake of lucre or to defraud the party. 1 Campb. 324. 2 Leach, 983. 1 New Rep. 92. Chitty, C. L. vol. 1. p. 387. 2Stra. 747. 2 Ld.Raym.1461. ’

In Simeon Van Houten’s case, the court decided that evidence of a large sum of money being found in the trunk of the prisoner, was proper to go to the jury to show that he knew, the bills charged in the indictment to be forgeries. City Hall Rec. vol. 2. p. 73.

In William A. Coffey’s case, on a trial for forging and uttering a counterfeit check, the intent was permitted to be shown by evidence, that the person had previously passed a check, not laid in the indictment,acknowledged to be counterfeit. Ibid. vol. iv. p. 52.

What false making or al*eratlons a" mounts to forgery.

The making or alteration of an instrument, with a fraudulent intent, and without authority, completes the offence, before any injury is sustained by any person. Nor is it necessary the whole instrument should be made fictitious: making an alteration, or erasure, in any material part of a true instrument, whereby another may be defrauded, is a forgery : a false signature to a true.instrument, or a real signature to a false one, are forgeries. The alteration of the date of a .bill of exchange after acceptance, by which payment may be accelerated, is a forgery, 4 T. R. 320. But the instrument must be false in itself; for if a man pass for another who is the maker or indorser of a true instrument, it is not a forgery, although he may be punished under the statute of false pretences, Chitty, C. L. vol. 3. p. 465. The instrument must bear a resemblance to that which it is intended to represent, but it is not necessary that it should be pecfect, or even a correct copy, it is sufficient if it bears such a resemblance as to impose upon mankind, although an individual skilled in that kind of writing would detect its fallacy. 2 East. P. C. 950. 1 Leach, 229.

The forgery of any writing, which may be prejudicial to another, is indictable at common law. Addis, p. 33, 34.

Forgery of a name to an assignment of a bond is indictable, although there be no seal to the forged instrument; as it gives a possibility to defraud. Ibid.

A co-obligor may be guilty of forgery, in signing a bill given, by himself and another. But his having it in his possession, may be evidence of authority over it; and if there be no intention to defraud, it is not forgery. Ibid.

If a merchant writes hisname on blank pieces of paper, and entrust them with his clerk, for the purpose of having notes written upon them, and by false pretences obtain them of the clerk, and make upon them notes other than those for which they were intended, such fraudulent use of them is not forgery. Mass. Rep. vol. 4. p. 45.

Evidence that a party, in whose favor an instrument is forged, was knowing and assenting to the forgery, will justify the jury in inferring that he procured it to be done, and be sufficient to charge him with forgery. Ibid. vol. 10, p. 181.

A forged promissory no.te, with a forged indorsement, will support an indictment for forging the note merely. Ibid. vol. 2, p. 397.

It is perfectly immaterial whether the counterfeited instrument be such as, if real, would be effectual to the purpose it intends. If there is only a resemblance sufficient to impose upon those to whom it is uttered, or to the public generally, it is sufficient, whether the fraud be effected on the part to whom an instrument is addressed, or whose writing is counterfeited, or upon some third person who takes it upon the credit it ass\imes,is perfectly immaterial. Chit. vol. 3, p. 462.

How far is it necessary the thing forg ed should be a valid instrument.

And it was decided, upon solemn argument, that a forgery in the name of a person who has no existence, is as criminal, and as much a forgery within the statutes, as if there was intent to defraud the indi-' vidual whose hand writing is counterfeited, 1 Leach, 83. The cases are explicit and satisfactory upon this point. To put a false and fictitious name on a bill indorsed in blank, in’order to circulate it with secrecy, is a forgery, 1 Leach, 215. To counterfeit a power of attorney, purporting to be by the administratrix and daughter of a seaman who had no child at his death, is a capital forgery. The forgery of ,an instrument purporting to be a last will, is taken as within the statutes, although the supposed testator is living, 1 Leach, 449. The fabrication of an order for payment of a sailors prize-money is forgery, though it is invalid as wanting the requisites required by statute. 2 Leach, 883. Forgery of a protection in the name of a member of parliament, who was not so, is indictable. Sid. 142.- So it has been adjudged a felony within 5 Eliz. C. 14, to counterfeit a conveyance with a wrong name, although the conveyance would have been void if it was genuine, 1 Keb. 803. 3 ICeb. 51.

But notwithstanding the validity of the instrument, if real, is immaterial, it must not appear on its face, so that no one of common understanding would give it credit. Thus, it will not be a forgery to fabricate a will of land, as attested by only two witnesses. 2 East T. C. 953.

The greater resemblance there is between counterfeit and true bills, the greater the crime of passing and counterfeiting them. City Hall Rec. vol. 1, p. 100.

An instrument in writing, directing or requesting the payment of a specific sum in the bills of an individual, are not the subject of forgery under the statute. Ibid, vol. 2. p. 155.

An instrument forged to fall within the statute, must be such, that an action might be sustained thereon, without recurring to extrinsic testimony. And an instrument upon which an indictment is predicated, if created by statute, must be conformable to its provisions Vol. 3, p. 59—65.

A paper, purporting to be a power of attorney, authorizing a receipt of a pension due from the government to a wounded seaman, not under seal, though forged, is not an instrument upon which an indictment for forgery, under the statute, can be predicated. Vol. 4, p. 163.

To constitute forgery, it is not-necessary that the name of any person in existence should be forged. Vol. 5, p. 87, vol. 6. p. 25,

The person, whose name to an order for the delivery of goods, is forged, should have a right to order their delivery ; for it seems a mere request in writing, to deliver an article, over which the drawer has no control, is not an order for the delivery of goods, and to make such instrumedt falsely, is not a forgery.

Forgery, under the act, cannot be committed, unless the note is payable in money. Jbid, vol. 1, p. 159. vol. 2, p. 155,

common law, forgery seemed more immediately confined to the falsification of records, and other instruments of a public nature, and also of private deeds and instruments under seal. By the decision in Ward’s case, 2 Ld. Raym. 1461. It was held, after solemn argument, that forgery might be in respect of any writing whatever, by which ( another might be defrauded Chitty C. L. 3. vol. p. 780. At

gery may be committed. Of what instruments for-

Qur statute, defining and declaring the punishment of forgery, may be „ . _ _ , T ... found in Rev. L. vol. 1. p, 404, and is most extensive m its operation, including almost every case.

In the first section it is enacted, “ that to make, alter, forge, or counterfeit “ or to procure to be falsely made, altered, forged, or counterfeited, “ any record, charter, deed, or writing sealed, will testament, bond, “ writing obligatory, bill of exchange, promissory note for payment “ of money, or any note or specialty for the payment of money, and “ expressed to be payable in any goods, wares or merchandises, en- “ dorsement or assignment of any bill of exchange or promissory “ note for payment of money, or any acquittance or receipt, either “ for money or goods ; or any acceptance of any bill of exchange, “ or the number or principal sum of any accountable receipt for any " note, bill or other security, for payment of money, or any warrant 11 or order for payment of money or delivery of goods, whether such “ order purports to be the order of the owner of the goods or money “ specified therein, or of some person who claims an interest in the “ same, or of any other person, with intention to defraud any person “ or body politic or corporate whatsoever, or shall utter or publish as “ true, any false, altered, forged, or counterfeited record, charter, “ deed, or writing sealed, will testament, bond, writing, obligatory, bill “ of exchange, promissory note for payment of money, or any note ■ “ or specialty for the payment of money, and expressed to be paya- “ ble in any goods, wares, or merchandises, endorsement or as- “ signment of any bill of exchange, or promissory note for payment “ of money, acquittance or receipt either for money or goods, or any “ acceptance of any bill of exchange, or the number or principal sum 11 of any accountable receipt for any note, bill or other security for “ the payment of money, or any warrant or order for the payment “ of mouey, or delivery of goods or money specified therein, or of “ some other person who claims an interest in the same, or of any “ other person, with intention to defraud, &c. knowing the same to “ be false, altered, forged, or counterfeited, &c.

See the following decisions under this section of the statute:

In Howell's case it was decided, that a check upon a bank is not a bill of exchange within the meaning of the act to prevent forgery and counterfeiting, but it is an order for the payment of money. 4 Johns. Rep. p. 295.

An order in the following words, ” Mr. Seward, Sir, let the bearer trade thirteen dollars twenty-five cents, and you will much oblige yours, &c. August 16, 1809. Samuel Layton,” is an order for the delivery of goods within the statute. 5 Johns. Rep. p. 236.

Forging an order in these words, “ Pay to J. L., or bearer, fifteen hundred dollars in N. Myer’s bills or yours,” is not within the act to prevent forgery, it not being an order for the payment of money, or the delivery of goods. G Johns. Rep. p. 320.

In Pinch’s case it was decided, that forging á note in the following words, “ Due Jacob Finch one dollar on settlement this day, February 7th, 1809, David Knight,” is not within the statute. Ibid, p. 237.

It was decided, that forging a check in the following words, “ Cashier of “ the Exchange Bank, pay to-or bearer, in notes current at “ the several banks in this city, fifty dollars, New York, 5th day of “ February, 1817, Philip Hone,” is not a note or order for the payment of money within the statute, nor can a conviction be sustained for passing it either under the statute or at common law. City Hall Rec. vol. 2, p. 47.

In Joseph Heath’s case it was decided, that a forgery of the following order, “ Mr. Ten Brock will oblige Mrs. Wells with the following articles, 2 pieces of Irish linen, 18 yards of lutestring ribbon, &c. “ Yonkers, March 31, 1817, Eliza Wells,” was within the statute, although by a legal disability the party would not have been liable on such an order had it been genuine. Ibid, p. 54.

John Conner's case. The corporation of New-York authorized John Pintard, their agent, to issue bills, and he did so in this form, “ The Cor- “ poration of New-York promise to pay the bearer seventy-five cents “ on demand, New-York, Dec. 25, 1814,” and signed them with his own name ; it was held, on a charge for forging and uttering these bills, that they were not promissory notes for the payment of money, within the statute. It must be such an instrument that an action may be sustained upon it, without recurring to extensive testimony. Ibid, vol. 3, p. 59.

Is Grant and Hooper’s case, it was decided, that it was unnecessary the name of any real person should be forged, nor is it necessary, either at common law or under the statute, that the name forged should be spelled right. The forgery of a check in the following words, is within the statute: “ New-York, May 5th, 1818, Cashier of Phenix Bank “ pay to Smith & Underhill, or bearer, one hundred and seventy- “ five dollars, Thomas Bearbanks,” although no person could befound in the City by the name of “ Thomas Bearbanks,” is within the statute. Ibid, vol. 3, p. 142.

The second section declares the crime of forging and counterfeiting any certificate or endorsement of the acknowledgment or proof of any deed, or recording of any deed or writing, or uttering the same as true, a felony. See the cases of Daniel Flanders and Samuel Harry. 18 Johns. Rep. p. 164. See also Peter Faulkner’s case, City Hall Rec. vol. 3, p. 65.

The third section declares that counterfeiting, or to aid or assist in connterfeiting public securities, or uttering the same as true, shall be deemed felony.

The fifth declares that counterfeiting, or aiding and assisting to counterfeit any of the species of gold or silver coins now current, or hereafter to be current in this State, or shall pass or give in payment, or ■ offer to pass or give in payment, knowing the same to be counterfeit, shall be deemed guilty of felony.

This section creates a new offence ; it enhances the misdemeanor, at common law, to a felony See John Burk Murphy’s case, City-Hall Rec. vol. 4, p. 42: John J. Dorsett’s case, ibid. vol. 5, p. 77. It was decided, though a counterfeit coin be very unskillfully executed, still the offence is complete, if such coin be so far finished, and in such a state that it is calculated to deceive , and whether it is so calculated or not, is a question to be left to the jury. Thomas Quin’s and James Kegan’s cases, ibid. vol. 6. p. 63.

The ninth section declares 11 that if any person shall have in his posses- “ sion or receive from- any other person, any forged or counterfeit “ promissory note for the payment of money, with intention to utter “ and pass the same, or to permit, cause, or procure the same to be “ uttered or passed, with the intention to defraud any person or body “ politic, or corporate, whatsoever, knowing the same to be forged “ or counterfeited, then every such person being thereof convicted ac- “ cording to the due course of law, shall be deemed guilty of fel- “ ony.”

Under this section see the following decisions,

Elizabeth O'Conner was indicted, under this section, for having in her possession a'counterfeit $3 note of the Franklin Bank. It was decided by the Court that to sustain an indictment for having in possession counterfeit bank bills with intention to utter them, it is necessary for the public prosecutor either to produce the bills laid in the indictment on trial, or to identify them with sufficient certainty City Hall Rec. vol. 4, p. 62.

In Daniel Sarle’s case, who was also indicted under this section, it was decided that it was unnecessary to produce the charter of the incorporation of a Bank to prove its existence, or to call upon the officers of the Bank to prove the forgery. Ibid. 107.

Elizabeth Conner indicted under the section for having in her possession, a $3 counterfeit bill on the Mechanics’ Bank in the City of New York. It was .decided to constitute the possession of counterfeit money, it need not be found on the person : it is sufficient if it be under the control of the prisoner; and this may be inferred from the circumstances. Ibid. vol. 5. p. 115.

In Hester Knapp’s case, it was decided that passing a counterfeit note in/; the following words: “The President, Directors and Company of “ the Montreal Bank, promise to pay B. Holmes, or bearer, twenty “ dollars, out of the joint funds of the Association, and no other. “ R- Griffin, Cashier. John Gray, Pres. « No. 304. A.” was within the ninth section of the act against forgery, &c. notwithstanding it may not be a negociable note. Ibid. Vol. 6.

For the doctrine relating to insanity, see case of Eliza Triplet Ante, page 48, and the authorities there referred to.

But it is often a question how shall the insanity of a person be proved ? It may be proved:

1. By the inspection of the Court. I. Hale, 33.

2. By evidence before the jury. § Bac. Abr. 81.

3. By a plea ore ienus—a venue may be awarded returnable instanPur, and an inquest taken, Post. 46. Kel. 1 Hale, '.35. 1 Lev. 61.

It was formerly held, that a madman might be punished as a traitor for killing or offering to kill the king ; but this strange principle of law has long since been exploded. See 2 Roll, 324. 3 Inst. 6. 4 Coke, 124' . 1 Hale, 36,37.

In Richard P. Clark’s case, it was decided that on the traverse of an indictment for felony, should the jury believe that qt the time of the perpetration of the act constituting the felony, the prisoner was capable of distinguishing good from evil, they will be justified in finding him guilty, though it is proved he has been subject to derangement. City Hall Rec. vol. 1, p. 176. 1

In Daniel Selleck’s case, it was held, that on the 'traverse of an indictment for murder, alledging that the death was occasioned by means of poison administered by the prisoner, and the ground of defence on the trial, is insanity. Should the jurors entertain a reasonable doubt that the death was the 'effect of poison, it will be .their duty to acquit ; but should the jurors doubt whether the prisoner was insane at the time of administering the poison, it will be their duty to convict. Ibid, p4 185. ,

Where insanity at a particular time is attempted to be proved, evidence of insanity immediately before or after the time, will be received ; but evidence of insanity long after the time, would not be admissable r Mass. Rep. 9. p.

The opinion of witnesses, whether professional men or others, are generally inadmissable to prove the insanity of a person unless they be predicated upon facts testified to, either by them or other witnesses" Ibid. See also ibid, vol 3. p, 330, vol, 8, 371.