People v. Dolan

Appellate Division of the Supreme Court of New York

People v. Dolan

111 A.D. 600, 97 N.Y.S. 929, 1906 N.Y. App. Div. LEXIS 227

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 9, 1906

StatusPublished

This text of 111 A.D. 600 (People v. Dolan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Dolan, 111 A.D. 600, 97 N.Y.S. 929, 1906 N.Y. App. Div. LEXIS 227 (N.Y. Ct. App. 1906).

Pincite

Opinions

Houghton, J.:

The general facts are fully stated in the opinion of Mr. Justice Ingraham and further statement of them is unnecessary.

I think the judgment of conviction should be reversed because of errors committed upon- the trial.

■ The charge that the defendant forged the note in question was withdrawn, and he was tried for the crime of uttering it. This issue, of course, involved his knowledge that the note was forged when he procured its discount at the bank. The only proof that the note was forged was by Cockerill who testified that he did not sign it. Miss Fitzpatrick had general charge of defendant’s office and took the note in question to the bank with the money to pay the discount, informing the bank that the defendant would call later and indorse it. The cashier of the bank testified that the defendant called that same day and indorsed this note with others. The defendant says that he was not in the city on that day and produces evidence of other witnesses to corroborate him m that respect, and that he called several days late'r and made the indorsements. All these circumstances with respect to delivery of the note to the bank and the indorsement of it by the defendant show good reason for the People abandoning the charge of forgery made jigainst the defendant and confining the issue to that of uttering a forged instrument. Whatever was communicated to the defendant by any person with respect to the validity of the note, and as to Whether or not it was in fact made by Cockerill, or by his authority, or that it was a valid instrument, or that it was a genuine note and not forged, was of course most pertinent upon the question of defendant’s knowledge that it was a forged instrument and upon his intent in uttering it. While the defendant was testifying in his own behalf certain questions were asked him with respect to what he had learned in regard to the [602]*602note and its execution when it had become due, and at the time its validity was. called in question, and what Miss Fitzpatrick' told hivn in respect to it, arid whether or not she told him that she herself had signed “ Tho. Cockerill & Son ” to the note. ‘ The defendant had. already testified that he knew nothing of the forgery of the note,, or that it had been made by Miss Fitzpatrick or any other person aside from Cockerill at the time it was delivered to the bank, or when he indorsed it, and had no such knowledge'until its validity was questioned on its presentation for payment. ' If he then, for the first time, learned that the note was in fact a forgery, he certainly had a right to prove that fact, for it tended to prove that at the time he uttered the note he had no knowledge that it was forged, and, therefore, no intent to defraud the bank by. uttering it. Fie was not confined to the bare statement'that he then learned the fact for the first time, but could prove' how that. knowledge came to him. It seems to me to be evading the question to say that such evidence would be competent if it related to the time of his indorsement and uttering of the notes, but incompetent because the knowledge was acquired at a subsequent time. • The contrary follows, for if he had been informed by Miss Fitzpatrick before he indorsed and uttered the note that she had forged it, then he had. knowledge of its forgery, and was proving himself guilty of the crime of which he was charged. The questions propounded, answers to which were excluded by the court, were not as sharp and pointed as' they might have been, but I think the testimony'sought to be elicited tended to prove that, at the time the irregularity of the note was discovered, the defendant then entered upon an inquiry as to how it came to be made and who forged it. He had a right tó show to the jury that then was the tiumhe first learned that the note was forged. If the jury believed his story in this respect, then, of course, he was not guilty of the crime for which he was being tried, because he did hot utter the forged paper, knowing at the time he uttered it that it was forged. His knowledge and intent was the only issue to be considered, because the People had abandoned the charge that the note was forged by him. On this issue the defendant had the right to prove any facts pertinent to the questions involved, and which tended to put an innocent aspect upon his own acts. (Donohue v. People, 56 N. Y. 208, 213; People v. Gardner, 144 id. 119, 131.)

[603]*603I am also inclined to the opinion that the People were permitted to go too far in proving the forging and uttering of other"notes in addition to the series of Oockerill notes: These were notes negotiated, not with the bank which discounted the Cockerill note, but with other-banks and individuals, and which were all paid in due course. The most of them, if not all, were subsequent to the discount of the original Oockerill note on the 18tli of Hay, 1897. They, therefore, had no bearing with respect to the financial embarrassment of the defendant, which would induce him to forge or utter the Cockerill note to obtain funds to redeem any other forged paper. It was competent to show that the original Cockerill note was forged, and that it was renewed with forged paper. The other' notes, however, were mere bald independent forgeries, if forgeries at all. Besides, proof as to' the forgery of many of them was permitted without producing the note itself.

I am aware' that the issue of knowledge that an instrument js forged, and intent-to defraud in uttering it, is a very broad one,, and that many crimes might go unpunished if the People were not permitted to prove that a person charged with a particular crime was engaged in a general scheme to defraud by similar means. In the present case, however, the simple issue was whether the defendant knew that the note dated October 13, 1897, delivered to the bank by another person for his benefit was a forged instrument. It is • difficult to see how -the fact that the Stuart and Gallagher notes were forgeries would throw any light on that question. The rule with respect to independent crimes is summed up by Eáel,. J., in People v. Shulman (80 N. Y. 373, 376) as follows-: “ But there is one-general rule which must apply to all such cases; there- must be in the transactions thus "sought to be proved some relation to or connection with the main transaction. That is, they must show a common motive or intent, running through all the transactions, or they must be such as in .their nature to show guilty knowledge atz the "time of the main transaction, and if they possess these characteristics then it matters not whether they were before or after, or near to or remote from the main transaction.” This is one of the cases cited as authority for the rule laid down in People v. Everhardt (104 N. Y. 591). It would seem- that the issue involved in the present case was very "like the issue in People v. Weaver [604]*604(177 N. Y. 434). There the single issue raised by the, defendant was that there was no intent on her part to defraud and that she acted in good faith and in the honest belief that she had a right to indorse another’s name on the instrument which she Was indicted for forging and uttering. Testimony that she had forged other instruments was held to have been imprdperly received. Ordinarily, forgery is proved by showing that the person charged wrote the instrument .or the signature. In the Weaver case the defendant did not deny writing the name, but did deny that she wrote it without authority or with the intent to deceive-or defraud.

Free access — add to your briefcase to read the full text and ask questions with AI

Houghton, J.:

The general facts are fully stated in the opinion of Mr. Justice Ingraham and further statement of them is unnecessary.

I think the judgment of conviction should be reversed because of errors committed upon- the trial.

■ The charge that the defendant forged the note in question was withdrawn, and he was tried for the crime of uttering it. This issue, of course, involved his knowledge that the note was forged when he procured its discount at the bank. The only proof that the note was forged was by Cockerill who testified that he did not sign it. Miss Fitzpatrick had general charge of defendant’s office and took the note in question to the bank with the money to pay the discount, informing the bank that the defendant would call later and indorse it. The cashier of the bank testified that the defendant called that same day and indorsed this note with others. The defendant says that he was not in the city on that day and produces evidence of other witnesses to corroborate him m that respect, and that he called several days late'r and made the indorsements. All these circumstances with respect to delivery of the note to the bank and the indorsement of it by the defendant show good reason for the People abandoning the charge of forgery made jigainst the defendant and confining the issue to that of uttering a forged instrument. Whatever was communicated to the defendant by any person with respect to the validity of the note, and as to Whether or not it was in fact made by Cockerill, or by his authority, or that it was a valid instrument, or that it was a genuine note and not forged, was of course most pertinent upon the question of defendant’s knowledge that it was a forged instrument and upon his intent in uttering it. While the defendant was testifying in his own behalf certain questions were asked him with respect to what he had learned in regard to the [602]*602note and its execution when it had become due, and at the time its validity was. called in question, and what Miss Fitzpatrick' told hivn in respect to it, arid whether or not she told him that she herself had signed “ Tho. Cockerill & Son ” to the note. ‘ The defendant had. already testified that he knew nothing of the forgery of the note,, or that it had been made by Miss Fitzpatrick or any other person aside from Cockerill at the time it was delivered to the bank, or when he indorsed it, and had no such knowledge'until its validity was questioned on its presentation for payment. ' If he then, for the first time, learned that the note was in fact a forgery, he certainly had a right to prove that fact, for it tended to prove that at the time he uttered the note he had no knowledge that it was forged, and, therefore, no intent to defraud the bank by. uttering it. Fie was not confined to the bare statement'that he then learned the fact for the first time, but could prove' how that. knowledge came to him. It seems to me to be evading the question to say that such evidence would be competent if it related to the time of his indorsement and uttering of the notes, but incompetent because the knowledge was acquired at a subsequent time. • The contrary follows, for if he had been informed by Miss Fitzpatrick before he indorsed and uttered the note that she had forged it, then he had. knowledge of its forgery, and was proving himself guilty of the crime of which he was charged. The questions propounded, answers to which were excluded by the court, were not as sharp and pointed as' they might have been, but I think the testimony'sought to be elicited tended to prove that, at the time the irregularity of the note was discovered, the defendant then entered upon an inquiry as to how it came to be made and who forged it. He had a right tó show to the jury that then was the tiumhe first learned that the note was forged. If the jury believed his story in this respect, then, of course, he was not guilty of the crime for which he was being tried, because he did hot utter the forged paper, knowing at the time he uttered it that it was forged. His knowledge and intent was the only issue to be considered, because the People had abandoned the charge that the note was forged by him. On this issue the defendant had the right to prove any facts pertinent to the questions involved, and which tended to put an innocent aspect upon his own acts. (Donohue v. People, 56 N. Y. 208, 213; People v. Gardner, 144 id. 119, 131.)

[603]*603I am also inclined to the opinion that the People were permitted to go too far in proving the forging and uttering of other"notes in addition to the series of Oockerill notes: These were notes negotiated, not with the bank which discounted the Cockerill note, but with other-banks and individuals, and which were all paid in due course. The most of them, if not all, were subsequent to the discount of the original Oockerill note on the 18tli of Hay, 1897. They, therefore, had no bearing with respect to the financial embarrassment of the defendant, which would induce him to forge or utter the Cockerill note to obtain funds to redeem any other forged paper. It was competent to show that the original Cockerill note was forged, and that it was renewed with forged paper. The other' notes, however, were mere bald independent forgeries, if forgeries at all. Besides, proof as to' the forgery of many of them was permitted without producing the note itself.

I am aware' that the issue of knowledge that an instrument js forged, and intent-to defraud in uttering it, is a very broad one,, and that many crimes might go unpunished if the People were not permitted to prove that a person charged with a particular crime was engaged in a general scheme to defraud by similar means. In the present case, however, the simple issue was whether the defendant knew that the note dated October 13, 1897, delivered to the bank by another person for his benefit was a forged instrument. It is • difficult to see how -the fact that the Stuart and Gallagher notes were forgeries would throw any light on that question. The rule with respect to independent crimes is summed up by Eáel,. J., in People v. Shulman (80 N. Y. 373, 376) as follows-: “ But there is one-general rule which must apply to all such cases; there- must be in the transactions thus "sought to be proved some relation to or connection with the main transaction. That is, they must show a common motive or intent, running through all the transactions, or they must be such as in .their nature to show guilty knowledge atz the "time of the main transaction, and if they possess these characteristics then it matters not whether they were before or after, or near to or remote from the main transaction.” This is one of the cases cited as authority for the rule laid down in People v. Everhardt (104 N. Y. 591). It would seem- that the issue involved in the present case was very "like the issue in People v. Weaver [604]*604(177 N. Y. 434). There the single issue raised by the, defendant was that there was no intent on her part to defraud and that she acted in good faith and in the honest belief that she had a right to indorse another’s name on the instrument which she Was indicted for forging and uttering. Testimony that she had forged other instruments was held to have been imprdperly received. Ordinarily, forgery is proved by showing that the person charged wrote the instrument .or the signature. In the Weaver case the defendant did not deny writing the name, but did deny that she wrote it without authority or with the intent to deceive-or defraud. In the present case the issue was not that the defendant actually forged the instrument, but whether or not he -knew it was forged and' intended to defraud by uttering it. There was no more reason for saying that proof of other independent forgeries by him threw light upon his knowledge as to .whether the note in question was actually forged than, there' was in the Weaver case for saying that other forgeries, threw. light.upon the question as to-whether the defendant in good faith believed she had the right to indorse the note with another’s name. -

The defendant may be guilty of the crime charged, but that is no reason why his trial should not be conducted in accordance with the proper rules of law or why he should be' loaded down- with a mass of immaterial evidence which could but prejudice -him in the minds of the,jury,.

Other errors are urged, but inasmuch as we deem those considered sufficient to call for a new trial,, it is unnecessary to consider them.' , - ■

Por the foregoing reasons I think the judgment of conviction -should be reversed and a new trial granted.'

O’Brien, P. J., and Laughlin, J., concurred; Ingraham' and McLaughlin, JJ., dissented.

Cite This Page — Counsel Stack

Bluebook (online)

111 A.D. 600, 97 N.Y.S. 929, 1906 N.Y. App. Div. LEXIS 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dolan-nyappdiv-1906.

Opinions

Related

Cite This Page — Counsel Stack