APPEAL by the defendant, Benjamin E. Valentine, from a judgment of the Supreme Court, rendered against him on the 24th day of February, 1906, after a trial at the Nassau Trial Term convicting him of the crime of forgery.
William C. Beecher, for the appellant.
Howard S. Gans, for the respondent.
On June 27, 1900, defendant caused to be recorded in the office of the clerk of Nassau county a paper which was in form a deed, and purported to convey property situated at Cedarhurst in that county, and also in Placer county, in the State of California. This paper bore date May 25, 1893. Marie A. Valentine was the grantor and Elizabeth H. Valentine was the grantee named therein. The former was the wife of
defendant, and died in August, 1899. The latter was his mother, and died in October, 1905. The body of the deed is in defendant's handwriting. The jury have found, upon evidence quite conclusive in its character, that the signature of Marie A. Valentine to said instrument was a forgery. It only remains for us to consider objections raised by the appellant, which do not go to the merits of the controversy.
1. It is contended that the extraordinary Trial Term at which defendant was convicted was unlawfully constituted, because the place and time of this extraordinary term were designated by the Governor without action on the part of the Appellate Division. At the time of such designation there was statutory authority therefor. (Code Civ. Proc. § 234.) Such statute was not unconstitutional. ( People v. Young, 18 A.D. 162; People v. Gillette, 191 N.Y. 107; People v. Neff, Id. 210.)
2. The sufficiency of the indictment is challenged, first, because it does not charge a crime, and second, because it does not state facts sufficient to constitute a crime. An indictment must contain (1) the title of the action, specifying the name of the court to which the indictment is presented and the names of the parties; (2) a plain and concise statement of the act constituting the crime, without unnecessary repetition. (Code Crim. Proc. § 275.) The succeeding section, which prescribes the substantial form of an indictment, contains an accusatory clause naming the crime with which defendant is charged, followed by a specification of the acts constituting the same. (Id. § 276.) This indictment accuses 'Benjamin E. Valentine, late of the Town of Hempstead, Nassau County, State of New York, of the crime of uttering, offering, disposing of and putting off as true, a certain forged, altered and fraudulent deed.' When this indictment was found, the statute provided that 'A person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within this State, which instrument, if genuine, might be filed or registered or recorded under any law of this State or of the United States, is guilty of felony.' (Penal Code, § 95.) And also: 'A person who, knowing the same to be forged or altered, and with intent to defraud, utters, offers,
disposes of or puts off as true, * * * a forged * * * deed, * * * the false making, forging, or altering of which is punishable as forgery; Is guilty of forgery in the same degree as if he had forged the same.' (Id. § 521.) 'A person is guilty of forgery in the first degree who with intent to defraud, forges, 1. * * * 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.' (Id. § 509.) 'The expressions 'forge,' 'forged' and 'forging,' as used in this chapter, include false making, counterfeiting and the alteration, erasure, or obliteration of a genuine instrument, in whole or in part, the false making or counterfeiting of the signature, of a party or witness, and the placing or connecting together with intent to defraud different parts of several genuine instruments.' (Id. § 520.) Appellant contends that the indictment charges an offense under the section first above cited; that the charging clause does not include in the description of the crime that it was knowingly committed, and that, therefore, it does not charge the crime of offering a forged instrument to be recorded. If the indictment were based upon that section of the Penal Code, it is not certain that this criticism would be fatal; but we are of the opinion that such is not the case. If the charging clause had used the word 'forgery' in describing the crime, we think that it would have been sufficient to describe that crime referred to as forgery in section 521 of the Penal Code. But if the facts which are stated as constituting the crime show it to be one committed through violation of the provisions of the latter section, mere misnomer in the charging clause would not require the reversal of a conviction for the offense actually described. ( People v. Sullivan, 4 N.Y. Cr. Rep. 193.) If the indictment were defective so far as the name in the charging clause is concerned, if the facts stated therein constituted a crime under the latter section, this defect was waived by a failure to demur. (Code Crim. Proc. § § 323, 331; People v. Carr, 3 N.Y. Cr. Rep. 578.) The indictment sufficiently states facts constituting a crime under section 521 of the Penal Code, and the evidence establishes it. Putting a forged deed on record is uttering it, within the meaning of the
statute. ( Paige v. People, 6 Park. Cr. Rep. 683.) It is unnecessary in an indictment for uttering a forged instrument to set forth either the particular manner in which it was forged or the manner in which ...