Learned, P. J.:
The plaintiff in error was convicted at the Albany Oyer and Terminer of forgery in the third degree, for making a false entry in a book of accounts kept in the office of the State Treasurer.
The statute under which he was indicted and convicted is as follows: “ Every person who, with intent to defraud, shall make any false entry, or shall falsely alter any entry made in any book of accounts kept in the office of the Comptroller of this State, or in the office of the Treasurer, or of the Surveyor-General, or of any County Treasurer, by which any demand or obligation, claim, right or interest, either against or in favor of the people of this State, or any county or town, or any individual, shall be or shall purport to be discharged, diminished, increased, created, or in any manner affected, shall, upon conviction, be adjudged guilty of forgery in the third degree.” (2 R. S. [m. p.], 673, § 34.)
The book of accounts, in which the alleged false entry was made, was a ledger, and the particular account in which the entry was made, was an account with the Mechanics and Farmers’ Bank. The alleged false entry was on the debit side of that account. That entry, with the three which preceded, is as follows:
[441]*4411873. July 1. To balance..................... 539,101 00
“ 15. “ transfer................... 200,000 00
“ 31. “ “ 150,000 00
Aug. “ “ “ 200,000 00
The entry which is charged to be false is
“Aug. “ “ “ 200,000 00.”
Fo such transfer as is indicated by. this entry was made, and it is conceded that the entry is false.
There are ninety-six counts in the indictment. The first forty-eight charge the forgery generally; each of the last forty-eight sets out a copy of the account as it existed before the false entry, a copy of the false entry, and a copy of the account as it was before the false entry had been made.
Each of these counts alleges, in substance, that there was a book of accounts kept in the office of the State Treasurer, called a ledger, in which there was an account between the people and the Mechanics and Farmers’ Bank of Albany, to the tenor following: setting forth the account, which is headed “Mechanics and Farmers’ Bank.” . It then avers that the plaintiff in error, with intent, etc., made a false entry in said book, by which a right (or claim, etc.) in favor of the people, “ against the said Mechanics and Farmers’ Bank of Albany,” was created, etc., by falsely, etc., writing in said account between the people “ and the said Mechanics and Farmers’ Bank of Albany” the letters, etc., setting forth the false entry, “ so that the aforesaid account between the people of the State of New York and the said Farmers and Mechanics’ Bank of Albany, after such false entry,” etc., was to the tenor following: setting forth the account again, headed “ Mechanics and Farmers’ Bank.”
On the trial the plaintiff in error objected to the receiving of any evidence of the false entry under these counts, on the ground that the account was alleged to be with the Farmers and Mechanics’ Bank, while the proof was of an account with the Mechanics and Farmers’ Bank. The same objection was taken by motion to direct the jury to acquit on these counts, and in other ways.
It appears by each of these counts, that the account is first averred to be with the Mechanics and Farmers’ Bank of Albany. [442]*442It is then set out, according to its tenor, and is there set forth as proved, with the heading “ Mechanics and Farmers’ Bank.”
The faise entry is then said to create a right, etc., against the said Mechanics and Farmers’ Bank of Albany; the account is again described as between the people and the Mechanics and Farmers’ Bank of Albany. .It is then averred that the aforesaid account between the people and the said Farmers and Mechanics' Bank of Albany was to the tenor following, and then the account is set forth with the heading “ Mechanics and Farmers’ Bank!’
The account, then, in both places where it is set forth, according to its tenor, is set, forth correctly.
The averments as to the parties between whom the account existed are correct. The only error is that once, in speaking of the 11 aforesaid” account, the words are added “between the people of the State of New York and the Farmers and Mechanics’ Bank of Albany.”
This is not a description of the account in which the false entry was made. That is correctly set forth, both as it was before, and also as it was after the false entry. Nor is it an allegation as to the parties to the account. They had been already correctly stated. It is merely a reference to an account already described ; a reference by the word “aforesaid.” No possible injury could be done to the plaintiff in error by thq mistake. He could not be misled, for the account and the false entry are fully and correctly stated. And for the same reason he is in no danger of another trial for the same offense.
Where a prisoner was indicted for stealing United States legal tender notes, and the proof was of stealing national bank currrency, the court very properly reversed the conviction. They say that a conviction or acquittal on this indictment would not prevent another indictment for stealing another kind of money, that is, the national bank currency. (People v. Jones, 5 Lans., 340.) But the present case is certainly different from that and others similar to it.
Another objection arises on the following circumstances. In the several counts from'the forty-eighth onward, wherever the account is set forth, one of the items in the debit side, in the year 1872, is “Nov. 28, “ “ 125,000.” This is not the alleged false entry, nor is it an item to which the false entry refers; as it [443]*443might be said .to refer to the three immediately preceding by the marks “ “ “ • On the production of the ledger on the trial, it was claimed by the defense that the item was “Nov. 18, “ “ “ 125,000,” and the'admission of the ledger was objected to on the ground of variance.
It is probable that the item ought to have been “Nov. 18.” But the question is what the item in fact was. The witnesses acquainted with the handwriting of Phelps, who himself made the entries, testified that it was “ Nov. 28.” Thé original was by consent produced on the argument, and appears to be November twenty-eighth. It was read November twenty-eighth by the court, on the trial. But the judge, in submitting the ease to the jury, charged that if this item was in fact written November eighteenth, and if the prisoner was thereby misled in preparing his defense to the indictment, they should acquit him.
When we consider that this item was no part of the false entry, and in no way affected the meaning of the false entry, this charge was sufficiently favorable to the plaintiff in error. “No indictment shall be deemed invalid, nor shall the trial, judgment, or the proceedings thereon be affected. * * * 4dh. By reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.” (2 It. S., [m. p.] 728, § 52.) There was no evidence, so far as the testimony of witnesses went, that the item was not, November twenty-eighth. And an inspection of the paper by the court there and on this argument, showed the item to be as it was stated in the indictment.
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Learned, P. J.:
The plaintiff in error was convicted at the Albany Oyer and Terminer of forgery in the third degree, for making a false entry in a book of accounts kept in the office of the State Treasurer.
The statute under which he was indicted and convicted is as follows: “ Every person who, with intent to defraud, shall make any false entry, or shall falsely alter any entry made in any book of accounts kept in the office of the Comptroller of this State, or in the office of the Treasurer, or of the Surveyor-General, or of any County Treasurer, by which any demand or obligation, claim, right or interest, either against or in favor of the people of this State, or any county or town, or any individual, shall be or shall purport to be discharged, diminished, increased, created, or in any manner affected, shall, upon conviction, be adjudged guilty of forgery in the third degree.” (2 R. S. [m. p.], 673, § 34.)
The book of accounts, in which the alleged false entry was made, was a ledger, and the particular account in which the entry was made, was an account with the Mechanics and Farmers’ Bank. The alleged false entry was on the debit side of that account. That entry, with the three which preceded, is as follows:
[441]*4411873. July 1. To balance..................... 539,101 00
“ 15. “ transfer................... 200,000 00
“ 31. “ “ 150,000 00
Aug. “ “ “ 200,000 00
The entry which is charged to be false is
“Aug. “ “ “ 200,000 00.”
Fo such transfer as is indicated by. this entry was made, and it is conceded that the entry is false.
There are ninety-six counts in the indictment. The first forty-eight charge the forgery generally; each of the last forty-eight sets out a copy of the account as it existed before the false entry, a copy of the false entry, and a copy of the account as it was before the false entry had been made.
Each of these counts alleges, in substance, that there was a book of accounts kept in the office of the State Treasurer, called a ledger, in which there was an account between the people and the Mechanics and Farmers’ Bank of Albany, to the tenor following: setting forth the account, which is headed “Mechanics and Farmers’ Bank.” . It then avers that the plaintiff in error, with intent, etc., made a false entry in said book, by which a right (or claim, etc.) in favor of the people, “ against the said Mechanics and Farmers’ Bank of Albany,” was created, etc., by falsely, etc., writing in said account between the people “ and the said Mechanics and Farmers’ Bank of Albany” the letters, etc., setting forth the false entry, “ so that the aforesaid account between the people of the State of New York and the said Farmers and Mechanics’ Bank of Albany, after such false entry,” etc., was to the tenor following: setting forth the account again, headed “ Mechanics and Farmers’ Bank.”
On the trial the plaintiff in error objected to the receiving of any evidence of the false entry under these counts, on the ground that the account was alleged to be with the Farmers and Mechanics’ Bank, while the proof was of an account with the Mechanics and Farmers’ Bank. The same objection was taken by motion to direct the jury to acquit on these counts, and in other ways.
It appears by each of these counts, that the account is first averred to be with the Mechanics and Farmers’ Bank of Albany. [442]*442It is then set out, according to its tenor, and is there set forth as proved, with the heading “ Mechanics and Farmers’ Bank.”
The faise entry is then said to create a right, etc., against the said Mechanics and Farmers’ Bank of Albany; the account is again described as between the people and the Mechanics and Farmers’ Bank of Albany. .It is then averred that the aforesaid account between the people and the said Farmers and Mechanics' Bank of Albany was to the tenor following, and then the account is set forth with the heading “ Mechanics and Farmers’ Bank!’
The account, then, in both places where it is set forth, according to its tenor, is set, forth correctly.
The averments as to the parties between whom the account existed are correct. The only error is that once, in speaking of the 11 aforesaid” account, the words are added “between the people of the State of New York and the Farmers and Mechanics’ Bank of Albany.”
This is not a description of the account in which the false entry was made. That is correctly set forth, both as it was before, and also as it was after the false entry. Nor is it an allegation as to the parties to the account. They had been already correctly stated. It is merely a reference to an account already described ; a reference by the word “aforesaid.” No possible injury could be done to the plaintiff in error by thq mistake. He could not be misled, for the account and the false entry are fully and correctly stated. And for the same reason he is in no danger of another trial for the same offense.
Where a prisoner was indicted for stealing United States legal tender notes, and the proof was of stealing national bank currrency, the court very properly reversed the conviction. They say that a conviction or acquittal on this indictment would not prevent another indictment for stealing another kind of money, that is, the national bank currency. (People v. Jones, 5 Lans., 340.) But the present case is certainly different from that and others similar to it.
Another objection arises on the following circumstances. In the several counts from'the forty-eighth onward, wherever the account is set forth, one of the items in the debit side, in the year 1872, is “Nov. 28, “ “ 125,000.” This is not the alleged false entry, nor is it an item to which the false entry refers; as it [443]*443might be said .to refer to the three immediately preceding by the marks “ “ “ • On the production of the ledger on the trial, it was claimed by the defense that the item was “Nov. 18, “ “ “ 125,000,” and the'admission of the ledger was objected to on the ground of variance.
It is probable that the item ought to have been “Nov. 18.” But the question is what the item in fact was. The witnesses acquainted with the handwriting of Phelps, who himself made the entries, testified that it was “ Nov. 28.” Thé original was by consent produced on the argument, and appears to be November twenty-eighth. It was read November twenty-eighth by the court, on the trial. But the judge, in submitting the ease to the jury, charged that if this item was in fact written November eighteenth, and if the prisoner was thereby misled in preparing his defense to the indictment, they should acquit him.
When we consider that this item was no part of the false entry, and in no way affected the meaning of the false entry, this charge was sufficiently favorable to the plaintiff in error. “No indictment shall be deemed invalid, nor shall the trial, judgment, or the proceedings thereon be affected. * * * 4dh. By reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.” (2 It. S., [m. p.] 728, § 52.) There was no evidence, so far as the testimony of witnesses went, that the item was not, November twenty-eighth. And an inspection of the paper by the court there and on this argument, showed the item to be as it was stated in the indictment.
Where objection is made to the admission of an instrument on the ground of variance, a question is presented for the decision of the court. It is difficult to see how the court can decide whether or not there is a variance, unless the court first determine what the language of the indictment is, and what is the language of the instrument offered in evidence. It seems necessary, therefore, in this instance, that before the court could decide whether there was a variance, tbé court must have determined what the figures were. (See Hess v. State, 5 Ohio, 8.)
Again: it is urged that the false entry could not possibly defraud any one; that it could not possibly affect any person or corporation in estate or property; that it is not forgery, under the circum[444]*444stances of the case; that, at all events, there must be a possibility of some person being defrauded by the false entry.
This question is to be determined not so much by the decision as to what constitutes a forgery at common law, as by the language of the statutes. The prisoner made a false entry in a book of accounts kept in the office of the Treasurer. Was the entry one by which a demand, etc., in favor of the people against the Mechanics and Farmers’ Bank purported to be increased or affected? Now, it is to be observed that the statute, in its very language, implies that an entry may be made in these books of public officers by which a demand against a county, town or individual, as well as against the State, may be, or purport to be, created or increased. And it would seem that the object of this provision of the statute was to protect against any false entries in these books of account, whether the entries were or were not such as, between individuals, would be evidence against the person charged thereby. But the plaintiff in error urges that this entry, if genuine, could not have been given in evidence against the bank, and therefore was of no legal efficacy.
The case of Biles v. Commonwealth (32 Penn., 537), was an indictment at common law for forgery. The defendant, a clerk in a mercantile house, made a false entry in the journal, which represented the cash received as being less than the actual amount. He was convicted, and after a very careful discussion the conviction was sustained.
It was said that, though the journal would not be evidence for the firm in a court of law, yet, in equity, for collateral purposes, it might be evidence of their rights. Even, therefore, at common law, a false entry made by a clerk in his employer’s journal, stating the cash received at less than the actual amount, is forgery.
The plaintiff in error cited the case Reg. v. Hodson (Beasely & Bell Cr. Cas., 3), which was an indictment at common law, and which holds that falsely altering a diploma, issued by the College of Surgeons, is not forgery. This was on the ground that there was uo intent to defraud any particular person; and that is not the present case.
Ex parte Winson (6 Best & Smith [2 B. R.], 528), is a decision under the extradition treaty, holding that forgery, under that treaty, meant forgery at common law, and not forgery under the [445]*445New York statutes. It does not construe those statutes, nor touch the present question.
It was held in Cunningham v. People (4 Hun, 455), following other eases, that if the forged instrument is invalid on its face, it cannot be the ground for the conviction of this crime. But that decision does not apply to this case. Here the false entry is valid on its face. There is nothing in the entry itself which shows that if true it would be invalid. On the contrary, if true, it would have been as valid as any other entry in the book.- It must be noticed that the act which is charged against the plaintiff in error is not the falsely making of an instrument, or of a writing which purports to be the act of another. That is an offense forbidden by a previous section of the statutes. (Sec. 33.) The writing in this case, although false in fact, was the genuine writing of the person whose it purported to be — that is, of the plaintiff in error. And the statute does not imply that the false entry must purport to be that of some other person. It therefore contemplates that entries may be made in the books of these State officers, which shall affect or purport to increase or create claims against individuals. That is what this false entry did. It might be given in evidence after certain proof had been made in respect to these entries. (Bank of Monroe v. Culver, 2 Hill, 531; Merrill v. Ithaca and Owego R. R. Co., 16 Wend., 586.; Guy v. Mead,, 22 N. Y., 462.) So if the plaintiff in error were dead. (Brewster v. Doane, 2 Hill, 537 ; 1 Greenl. Ev., § 116 et seq., and § 483 et seq.)
It is further insisted, in connection with this point, that there was no intent to defraud, because no fraud could result from the act. It is in proof, however, that the plaintiff in error had taken a large amount of money from the State ; and the court left it to the jury to say whether he made this false entry, with the intention of covering up this illegal appropriation of money, and charged them that if he did, then he made the false entry with intent to defraud. In this we think that there was no error. What was the intent of the entry ? The plaintiff in error had taken the money of the State. Thus, the amount on deposit appeared less than it ought to be. By making this false-entry the apparent amount on deposit was increased.
Suppose that, at the same ' time when he made this false entry, [446]*446he had taken the sum of $200,000; would not this entry have been plainly made, in such case, to conceal the theft, and with intent to defraud ? As above remarked, this is not a case of passing off as genuine a forged instrument. But it. is no less a crime, if done with a criminal intent. And if, in order to. enable him, without speedy detection, to take this sum, he had made this false entry, can it be doubted that it would have been made with intent to defraud? And is the crime any different if he stole the money on one day, and made the false entry on the day after, for the purpose of concealing and covering up his theft ?
It is just as necessary to the thief, in such a case as this, to cover up his theft. If he does not cover up and conceal the matter, 'the stolen money may be at once reclaimed. And it is just as much a fraud on the State to retain as to take the money. We think, then, that the charge was proper in this respect.
The judgment and conviction should be affirmed.
Present — Learned, P. J., Bookes and Boardman, JJ.
Ordered accordingly.