APPEAL by the plaintiff, The People of the State of New York, from a judgment of the County Court of Chenango county, entered in the office of the clerk of said county on the 28th day of September, 1910, sustaining the defendant's demurrer to an indictment for forgery in the first degree.
James P. Hill, District Attorney, for the appellant.
Julien Scott, for the respondent.
The defendant was indicted by the grand jury of the county of Chenango for forgery in the first degree and on arraignment interposed a demurrer alleging various grounds of insufficiency of the indictment, the principal ones of which were that it did not state the unlawful act which the defendant did constituting the crime of forgery in the first degree, nor set forth whom he intended to defraud.
The indictment contains two counts. The first alleges that the defendant committed the crime of forgery in the first degree in that he 'with intent to defraud, unlawfully and feloniously, did forge a certain deed and indenture of conveyance purporting to be the act of one Sarah J. Birdsall, by which certain rights and interests in real property were purported to be transferred, conveyed, charged and effected, and by which said forged deed and indenture of conveyance the rights and interests in certain real property in said deed described as hereinafter set forth were purported to be transferred and conveyed to one William Ray Hawkins, which said forged instrument and signature is as follows, that is to say:' (Quoting the deed, signature, acknowledgment, signature of the witness and notary in full.) The second count alleges the commission of the same crime at a different town in the county, in that the defendant with intent to defraud 'did feloniously utter, dispose
of and put off as true a certain forged deed and indenture of conveyance purporting to be the act of one Sarah J. Birdsall by which certain rights and interests in real property purported to be transferred, conveyed, charged and effected, being the same forged instrument and writing set forth in the first count of this indictment, to which reference is hereby made, the said Charles A. Hoyt then and there well knowing the same to be forged.'
The ground upon which the learned county judge came to the conclusion that these counts did not set forth the acts constituting the crime of forgery with sufficient particularity to constitute a good indictment, was that forgery could be committed in various ways--by false making, or counterfeiting, or alteration, or erasure, or obliteration, or signing of the name of the alleged grantor, or a witness, or notary, or by piecing together, with intent to defraud, parts of genuine instruments; and because the crime could be committed in such different manner it was incumbent upon the People to allege in what way it was claimed the defendant committed the forgery so that he might prepare his defense intelligently and be protected from further prosecution for the same crime.
The entire deed is charged to have been forged and is set forth in full in the indictment, and if the defendant should be acquitted under the present indictment such acquittal would clearly be a defense to any subsequent specific charge of forging any particular part of the instrument, and, therefore, there can be no question of the defendant being twice put in jeopardy for the same offense.
The crime with which the defendant is sought to be charged is alleged to have been committed in 1905, when section 509 of the Penal Code was in force. That section provided as follows: 'A person is guilty of forgery in the first degree who, with intent to defraud, forges: 1. A will or codicil of real or personal property, or the attestation thereof, or a deed or other instrument, being or purporting to be the act of another, by which any right or interest in property is or purports to be transferred, conveyed, or in any way charged or affected.'
The indictment is in the precise form approved in People v. Alderdice (120 A.D. 368) and ...