People v. Wheeler

54 N.Y. Sup. Ct. 484, 14 N.Y. St. Rep. 422

• Court: New York Supreme Court
• Decided: February 15, 1888
• Status: Published

Opinion

Learned, P. J.:

This is an appeal from a judgment, in favor of defendant, on a demurrer to the indictment. The indictment is for the making of a certain instrument in writing, a promisory note, set forth therein with the indorsement thereon. The instrument is accurately, or purports to be, an inland bill of exchange on the Farmers’ Bank of Hudson, at one year, for $750 and interest at seven per cent, to order of J. D. Wheeler, purporting to be signed by Norman Coons and to be indorsed by Chester A. Miller.

The first point taken by the defendant is that, as the instrument purports to bear interest at seven per cent (being dated in 1885), it is usurious and void, and therefore cannot form the basis of a criminal charge. A note is not necessarily usurious because on its face it bears interest at seven per cent. This bill is substantially a promise to pay $802.50 in a year’s time (disregarding days of grace). Such a bill is not necessarily usurious. To make it usurious it must have been given for a loan of money, and must be a promise to pay more than the legal rate for that money. In consideration of $775 received one may promise to pay $750 at seven per cent in one year, and the promise will not be usurious. So in case of a bona fide sale, which is not the cover of a loan.

In the very able brief of defendant’s counsel numerous cases are cited holding that the forgery of an instrument which, if genuine, would be void, is not a crime. For instance, Cunningham v. People (4 Hun, 455). But the note or bill set forth in this indictment, if genuine, would not be void. Whether void or not, would depend upon its consideration, as above explained. Its invalidity depends on some collateral fact. (People v. Galloway, 17 Wend., 543.) Whether the note, if genuine, would be prima facie usurious is not the question here; although we are inclined to think that usury is a positive defense, to be established by proof. It is enough that this note, if genuine, would not necessarily be void.

The next point relied upon by the defendant is that the name of Chester A. Miller, alleged to be forged, is not that of the payee, and that the bill is not alleged to have been indorsed by the payee. The allegation of the indictment is that the defendant forged the whole instrument with the indorsement by which a pecuniary demand purported to have been affected against Chester A. Miller. The instrument was in form a bill of exchange drawn by Coons on the bank to the order of Wheeler and indorsed by Miller. If genuine then on non-payment thereof and notice, Coons would be liable, like the indorser of a note. Miller, too, would be liable as an indorser after Coons, and would be so liable to Wheeler. WTieeler then might, by transfer of this bill, had it been genuine, have made Miller liable to the transferee of Wheeler.

The judgment should be reversed and cause remitted to Sessions, with leave to withdraw demurrer and plead.

Landon and Ingalls, JI., concurred.

Judgment reversed, case remitted to Sessions with leave to defendant to withdraw demurrer and plead to the indictment.