The People of the State of New York, Respondent, v. Louis D'Argencour, Appellant

The People of the State of New York, Respondent, v. Louis D'Argencour, Appellant. On the trial of an indictment charging forgery of the notes of a bank of another State or country it is not necessary to prove by direct evidence the due incorporation of the bank. Upon the trial of an indictment, which charged forgery in the second degree in the making and engraving a plate in the form and similitude of a note of a bank incorporated in Havana under the laws of Spain, a witness on behalf of the prosecution testified, that he had been in the bank in Havana and saw banking business carried on there, that the bank issued notes which were received as money, that he saw the articles of association, and from them and what he saw in a newspaper, the official organ of the Spanish government, he believed the bank was incorporated under the laws of Spain. An engraver connected with the American Bank Note Company also testified that he engraved the plates from which the genuine notes were printed, and that they were then in the vaults of that company. Held, that the evidence was sufficient to establish the legal existence of the bank. People v. Peabody (25 Wend. 472), distinguished. The provisions of the Code of Civil Procedure (§§ 956,957,958), making certified copies of the records of foreign countries evidence and prescribing the manner of authentication, have no application to such a trial. The indictment charged that the note so alleged to have been forged was “ for the payment of fifty ceñimos.” It was objected that in the absence of an allegation that “ centavos ” are money the indictment did not set forth an instrument purporting to be a pecuniary obligation. Held untenable ; that it was not necessary to define the meaning of the word. Under the statute defining forgery in the second degree (2 R. S. 672, §§ 31, 32), the making and engraving of an unfinished plate is sufficient to constitute the offense, and so it seems that if the word “ centavos ” had been omitted it would not have affected the character of the crime. Sanabria v. People (24 Hun, 270), distinguished. Also held, the testimony that the genuine plates of the hank were engraved and retained by the Bank Note Company, with the testimony of the agent of the bank in this country, that no one except said company had been authorized through him to do any engraving for the bank, was sufficient to establish prima facie that defendant was not authorized by it to make the plate. Also held, that as the offense charged was committed before the Penal Code' went into effect, it was not essential to charge in the indictment an intent on the part of defendant to defraud some individual or corporation. Also held, that assuming the provisions of the Penal Code, defining forgery in the second degree (§§ 511, 512), were applicable, as the Code of Criminal Procedure (§ 469) requires such a question to be raised by motion before or at the time when defendant was called for judgment by failing so to present it the right to object was waived and defendant could not avail himself of it upon appeal. The power conferred upon the Supreme Court by the Code of Criminal Procedure (§ 527, as amended by chap. 366, Laws of 1882) on appeal in a criminal action, to grant a new trial where the judgment is against evidence or law, or where justice requires it, although no exceptions were taken in the court below, is'discretionary, and where it does not appear that the discretion has been abused, the decision of that court is not re viewable here. Submitted April 14, 1884; decided April 29, 1884.) Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 7, 1884, which affirmed a judgment of the Court of General Sessions of the Peace in and for the city and county of JSTew York, entered upon a verdict convicting defendant of the crime of forgery in the second decree. The facts are sufficiently stated in the opinion. William F. Kintzing and George L. Simonson for appellant. There was no legal evidence offered by the people that the alleged bank was incorporated under the laws of Spain. (Lewis v. B'k of Kentucky, 12 Ohio, 150; Ingraham v. Hart, 11 id. 255; Story’s Conflict of Laws, 528, 529; Code of Civ. Pro., §§ 942, 956-8; Nat. B'k v. DeBernales, 1 C. & P. 569 ; 2 Russ, on Crimes, 353-367; People v. Peabody, 25 Wend. 472 ; 3 Phillips on Evidence, 1136 and note; Raynham v. Carter, 3 Pick. 293 ; Taylor v. B'k of Illinois, 7 Mon. 585; Kean v. Rice, 12 S. & R. 203; Thomas v. Masser, 1 Dal. 462; Taylor v. B'k of Alexander, 5 Leigh, 471; State v. Givins, 5 Ala. 748.) The prisoner should have been acquitted Vs the indictment did not set forth an instrument which purports to be a pecuniary obligation. (Sanabria v. People, 24 Hun, 270; Rex v. Warshaner, 1 Moody’s C. C. 466.) The indictment is fatally defective in not charging an intent to defraud some individual or corporation. (Russ, on Crimes [6th ed.], 361-7 ; People v. Stearns, 21 Wend. 409.) The court below erred in supposing that this point could not be entertained by them, for the reason that no motion in arrest of judgment was made upon that point. (Code of Crim. Pro., § 527; Hovey v. People, 92 N.Y. 554; People v. Boas, id. 560 ; Code of Crim. Pro., §§ 467-469, 323, snbd. 4.) The judgment should be reversed, on the ground that there was no proof of the intent on the part of the defendant to defraud. (Hamm. Dig., tit. Forgery, chap. 1, p. 602; Cunningham v. People, 4 Hun, 456; People v. Shall, 9 Cow. 778; People v. Fitch, 1 Wend. 198; People v. Wilson, 6 Johns. 320 ; People v. Stearns, 21 Wend. 409 ; People v. Harrison, 8 Barb. 560 ; People v. Cady, 6 Hill, 491; People v. Gardiner, 62 N. Y. 304; 1 Bishop’s Crim. Law [7th ed.], §§ 287, 301, 304; 2 Russell on Crimes [9 th ed.], 774; 2 Archbold’s Crim. Pr. & Pl. [8th ed.] 1566, Pomeroy’s notes; Keer v. Force, 3 Cranch’s C. C. 43 ; State v. Ridstrake, 39 N. J. L. 365 ; State v. Shelters, 51 Vt. 105 ; Phillips v. State, 17 Ga. 461; Comm. v. Ladd, 15 Mass. 526 ; Rex v. Morton, 7 C. & P. 549 ; Rex v. Holden, 2 Taunt. 334; Reg. v. Cohen, 8 Cox’s Crim. Cases, 150; Reg. v. Allday, 8 C. & P. 160 ; Harris v. People, 9 Barb. 664 ; People v. Curling, 1 Johns. 320.) Peter B. Olney, district attorney, for respondent. The evidence is clear and uncontradicted that defendant was found with a counterfeit plate in his possession; this was a violation of the statute although the plate was not complete. (3 R. S. [7th ed.] 2488.) The lack of defendant’s authority was sufficiently proven by the agent of the bank and the lithographer who had possession of the original plates. (1 Phillips on Ev. 695; Potter v. Deyo, 19 Wend. 361; 4 E. D. Smith, 142, 148; People v. Brook, 4 Denio, 469.) The proof of the existence of a corporation de facto was sufficient as shown by the agent and the lithographer. (People v. Davis, 21 Wend. 313; Losser v. State, 13 Ohio, 453.) [MAJORITY — Miller, J.] Miller, J. The defendant was indicted and convicted for the crime of forgery in the second degree, on the first count contained in the indictment. This charged that the defendant made and engraved, and caused and procured to be made and engraved, a plate in the form and similitude of a promissory note, issued by a bank at Havana, in the island of Ouba, for the payment of fifty centavos, said bank being a bank incorporated under the laws of the kingdom of Spain, without the authority of said bank and in violation of the statutes of this State. The counsel for the appellant insists that the court erred in refusing to advise the jury to acquit, on the ground that there Avas no legal evidence offered by the people that the alleged bank was incorporated under the laws of the kingdom of Spain. Upon the trial a witness was introduced and sworn on behalf of the people, who testified that he was a banker in HeAV York city; that he had been in the bank named in the alleged forged note; that the bank issued notes which were received as money; that his firm were the agents of said bank in the city of Hew York; that when he was in this bank at Havana he saw banking business carried on. He further testified that the said bank was incorporated under the laws of Spain; that he saw the articles of incorporation in a book which was in the court-room on the da}r of the trial; that from what he sbav there and also from Avhat he saw in the official organ, the paper of the Spanish government, he believed it to be so ; that this official paper Avas published by the government and only contains official news, the chief laws and. any change in the administration that interests the public. The fact of the bank being incorporated Avas also proAred by the engraver connected with the American Bank Hote Company; that it had engraved the plates from which the genuine notes of the bank were printed, and which plates were then in the vaults of said company. We think that this evidence was sufficient to show the existence of the bank without producing the law to establish the fact that the bank had been incorporated, and the act of incorporation, and that there was no error in the refusal of the court to advise the jury as requested. The rule has long been established in this State that it is not necessary, on an indictment for forgery of bank notes, to prove by direct evidence the incorporation of the bank, and that testimony of the most general character is sufficient for such a purpose. In People v. Davis (21 Wend. 309), it was held, on an indictment for having in possession with intent to pass, bank notes purporting to have been issued by a banking corporation of a State other than that of New York, that it was not necessary to show that there was in fact such a corporation in existence ; at all events proof of the most general character of its existence would be sufficient. The same rule is applicable here and the proof introduced was clearly sufficient to establish the legal existence of the bank within the authority cited. Any other or different rule would cause great difficulty on a trial of this description and very greatly interfere with the administration of justice in such cases. The general practice has been in cases of this character to produce general evidence as to the incorporation of the bank upon which the alleged forgery was committed. Such being the rule in this State it would seem to be unnecessary to examine whether the same or a different rule exists elsewhere. The case of People v. Peabody (25 Wend. 472), cited by the appellant’s counsel, is not adverse to the rule laid down in People v. Davis (supra), as that was a case where an intent was charged to defraud the bank, and it is there laid down that to constitute the offense of forgery, in counterfeiting the notes of a bank, it is not necessary that such bank, as the notes purport to have been issued by, should have a legal existence; it is enough that the notes purport to have been issued by a corporation or company duly authorized to issue notes. The provisions of the Code of Civil Procedure (§§ 956-958 and 942) have no ajiplication to an indictment for counterfeiting bank notes. The rule in civil cases in regard to proof of this character is different, and the proof of the existence of the bank upon which the forgery was committed was entirely sufficient in the case at bar. It is further insisted that the court erred in refusing to advise the jury to acquit upon the ground that the indictment does not set forth any instrument which purports to be a pecuniary obligation of the bank. This point relates to the allegation in the indictment that the note, alleged to have been made and engraved, was for the payment of “ fifty centavos,” and the claim is that the terms employed do not show, of themselves, that “ ceñimos ” are money, or that the alleged promise involved any pecuniary obligation to pay on the part of the bank. The charge in the indictment which is referred to is for making and engraving and causing and procuring to be made and engraved a plate in the form and similitude of a promissory note, in violation of the statute (3 R. S. [7th ed.] 2488, §§ 30 and 31), and it was not necessary, to sustain the allegation, to define the meaning of the word referred to. It is of no importance whether an explanation was given to the word “ centavos ” or not. If that word had not been engraved upon the plate, the engraving and making of the plate unfinished would have been in violation of the statute, and the indictment was clearly good without defining or attempting to give a definition to the word “ ceñimos.” The appellant’s counsel relies upon the case of Sanabria v. People (24 Hun, 270), but that case is entirely different from the one at bar. The indictment there was for attempting to forge an instrument purporting to be a pecuniary obligation of the Empire of Brazil, which was set forth in the Portuguese language with an English translation, which did not define what was meant by the terms there used for money in the Portuguese language, and it was held that as the term used was not money of this country and as the court could not take judicial notice that it was a coin at all, it did not appear that the instrument involved any pecuniary demand or obligation upon the part of the Empire of Brazil and that the indictment was insufficient. It will be observed that the charge related to the O forging of an instrument which created a pecuniary obligation and sufficient did not appear upon the face of the indictment to show that any such obligation was forged and thus no crime was alleged. The allegation here is entirely different and a crime would be made out if the engraving had been but partially completed, and hence the case cited is not applicable. Nor was any error committed by the court in refusing to advise the jury to acquit upon the ground that there was no evidence showing the want of authority on the part of defendant to make the plate. The evidence of such want of authority, we think, was. sufficiently established by the agent of the bank in this country, who testified that no one save the Bank Note Company had been authorized through him to do any engraving for the bank, and the lithographer whose company had the genuine plates in its possession. The proof was positive that plates had been manufactured for the bank by the American Bank Note Company, who retained possession of the same, and the agent’s testimony, therefore, tends .to show that the defendant had no authority for any such purpose. In view of this testimony it is not probable that any other person was authorized to engrave plates for the bank, and it devolved upon the defendant to establish to the contrary if such was the fact. The people were not bound, in view of the proof given, to show a negative, and the evidence introduced by the defendant, for the purpose of establishing authority, -was not, of itself, sufficient for that purpose. As the case stood it was for the jury to determine whether a want of authority was established, and it cannot, as a matter of law, be held that there was a failure of the prosecution in this respect. It is further objected that the indictment was fatally defective in not charging an intent to defraud some individual or corporation. The indictment charged an offense in violation of the provisions of sections 30 and 31 of the Revised Statutes (supra). There is nothing in these provisions which requires that there should be an intent to defraud any individual or corporation. The offense was committed in September, 1882, before the Penal Code went into effect, and hence the charge made in the indictment must be in accordance with the provisions of the statute cited, and, therefore, it was not necessary to allege any such intent. But aside from this view of the question presented, and assuming that the provisions of section 511 of the Penal Code are applicable, it is a sufficient answer to the point urged to say that the question was not raised so as to be available to the defendant. Section 469 of the Code of Criminal Procedure required a motion to be made for that purpose before or at the time when the defendant was called for judgment. This was not done, but a motion was made in arrest of judgment and for a new trial, the grounds of which were confined to the exceptions taken at the trial, and to the judge’s charge, and did not, therefore, include this alleged defect. By failing to present the question the defendant waived the right to object that the indictment was defective for want of an averment of an intent to defraud. The provisions of section 527 of the Code of Criminal Procedure do not aid the defendant, as the power conferred upon the Supreme Court to grant a new trial when the verdict is against the weight of evidence, or against law, or when justice requires a new trial, whether any exception shall have been taken or not in the court below, is a discretionary one, and as it cannot be said that the discretion has been abused by the General Term of the Supreme Court the decision is not reviowable upon appeal to this court. It is also insisted that there was no proof of an intent on the part of the defendant to defraud. The question of intent was one for the jury. Although the plate was not entirely complete, yet it was sufficiently so to.evince that<it was intended for the printing of notes of the description of those issued by the bank named thereon. This is shown by the description given by one of the witnesses upon the trial. It conforms to similar parts of a genuine plate. The question of defendant’s good faith ivas for the jury, and in view of the evidence it cannot be said that there was no ground for claiming that the act of the defendant was without any intent to defraud or commit a crime in violation of the statute. The judgment should be affirmed. All concur. Judgment affirmed.