People of the State of New York, Respondents, v. Elsie Ryland, Appellant

People of the State of New York, Respondents, v. Elsie Ryland, Appellant. Defendant, with her husband and another, were indicted for forgery in the third degree, in raising a check. It appeared on the trial that defendant suggested the idea and went alone to a store where she procured a check for $6, upon the representation that she desired to send the money that evening to her sister or mother in Philadelphia, and she could not obtain an order at the post-office, as it was closed. This check she delivered to her husband, who, in her presence, erased with an acid the name of the payee and the amount. Subsequently, when it did not appear that she was present, the check was filled in for the sum of $165.00, the money was obtained thereon, and $74 of that sum paid to defendant. Held, that the evidence was sufficient to authorize a finding that defendant’s participation in the affair was voluntary and under no coercion from her husband ; and also, was sufficient to justify a conviction of defendant as a principal, not simply as an accessory before the fact. The proof as to what occurred when the plan was suggested, and also after defendant returned with the check, in reference to the alteration thereof, was the uncorroborated testimony of an accomplice. Held, that there was other testimony tending “ to connect the defendant with the commission of the crime,” sufficient to meet the requirements of the Code of Criminal Procedure (§ 399), prohibiting a conviction on the uncorroborated testimony of an accomplice. (Argued October 6, 1884; decided October 28, 1884.) Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 17, 1883, which affirmed a judgment of the Court of General Sessions-of the Peace in and for the city ' and county of New York, entered upon a verdict convicting the defendant of the crime of forgery in the third degree. Defendant was indicted with her husband and one Woodman. One Crawford, an accomplice, was the principal witness for the prosecution. He testified that he was at the house of defendant and her husband; that she said she would go to Demarest & Duncan and see if she could get a check, and she then started out with her husband; about four hours afterward the two returned, defendant produced the check, saying: “I have got it.” The check then read, “ Pay to the order of Georgiana Mace six dollars.” Hyland took the check, applied acids, which erased the name of the payee and the amount. The witness then left; the next morning he went back to the house; Hyland handed him the check, which was then filled in so as to read, “ Pay to, the order of George Martin one hundred and sixty-five 50-100 dollars; ” the witness in the presence of defendant handed the check to Woodman and went with him to the bank upon which it was drawn, where Woodman presented it and obtained the money thereon. The money was divided, defendant receiving $74, the witness $60, and Byland §31. The witness also testified that the filling in of the check was in Byland’s handwriting and that of the indorsement of the payee’s name in Woodman’s, Mr. Duncan, of the firm of Demarest & Duncan, testified that defendant came along to their store on the evening in question, saying she wished to purchase a check, as the post-office was closed up, to send $6 to her sister or mother at Philadelphia that evening. The witness thereupon gave her the check in question, which was produced and read as stated by Crawford. The cashing of the check wasi also proved by the cashier of the bank. Further facts appear in the opinion. Peter Mitchell for appellant. The proof of defendant’s marriage to Edward C. Wyland, a 'co-defendant, raised a presumption that she was under the coercion of her husband while committing any illegal act in his presence. (1 Bish. Crim. Law [7th ed.], § 359, note b; note to Rex v. Knight, 1 Car. & P. 116; Connolly’s Case, 2 Lew. 229.) Where a presumption is raised in favor of a wife being coerced into the commission of a crime by her husband, the presumption becomes fixed and permanent unless it is overcome by proof. (1 Greenl. on Ev. [12th Redf. ed.], § 28, note 1; Best on Presumpt. [5th London ed.], § 428.) The defendant did not make any part of the forged instrument, nor did she alter it, nor was she present when her husband forged it. Therefore she is not a principal in either the first or second degree. (1 Bish. Crim. Law [7th ed.], § 650, notes 7 and 8.) If it could be held that defendant went and got the check, possessing knowledge that it was to be forged by her husband, she could be prosecuted as an accessory before the fact to the forgery. (Rex v. Soares, 2 East P. C. 974; R. R. C. C. 25.) Peter B. Olney for respondent. Coverture is not protection when the wife is shown to have taken an active and willing part in the commission of the crime. (Goldstein v. People, 82 N. Y. 233; Seiler v. People, 77 id. 413.) The court properly refused the request to acquit the defendant because there was no evidence to convict her of any unlawful act except that of an uncorroborated accomplice. (People v. Costello, 1 Den. 86, 87; People v. Davis, 21 Wend. 313, 314; Lindsay v. People, 63 N. Y. 143, 154; In re N. Y. & Harlem R. R. Co. v. Kip, 46 id. 551; 1 Greenl. on Ev., § 41; Walrod v. Ball, 9 Barb. 271; Wilkins v. Earle, 44 N. Y. 172; Gordon v. People, 33 id. 501, 508, 509.) When a prisoner has exercised his option and chosen to become a witness, he is made competent for all purposes in the case; and if, by his own testimony, he can, if innocent, explain and rebut a fact tending to show his guilt, and he fails to do so, the same adverse presumption arises from such failure on his part as would arise from the failure of any other witness, and tends to- “ show an absence of innocence ” or guilt of the witness.. (Strover v. People, 56 N. Y. 320; Brulo v. People, 16 Hun, 120; People v. Dyle, 21 N. Y. 578-581; Kerrains v. People, 60 id. 228, 229; Bradford v. People, 20 Hun, 310.) Where several acts constitute, together, one crime, if each is, separately performed by a different individual, in the absence' of the rest, all are principals as to the whole. (1 Bish. Crim. Law, § 650; McCarney v. People, 83 N. Y. 412, 413.) [MAJORITY — Miller, J.] Miller, J. The prisoner, in conjunction with her husband and one Woodman, was indicted for the crime of forgery in the third degree, and, being separately tried, was convicted of' that offense. The evidence showed that all of the defendants, combined and co-operated in the commission of the crime. At the close of the testimony counsel for the defendant requested the court to advise the jury to acquit the defendant,, on the ground that she was the wife of the co-defendant, Edward G. Byland, and was under the coercion of her husband at the time when the offense was committed; that all that was done by her, viz.: the delivery of the check to her husband, and subsequently receiving a part of the proceeds of the forgery, was done in her husband’s presence, and the presumption of law is that she acted under his control and direction. This was refused, and an exception was taken by the defendant’s counsel to the decision of the court. The rule undoubtedly is, that whatever, of a criminal nature, the wife does in the presence of her husband is presumed to be compelled by him (1 Bish. Crim. Law [7th ed.], § 359); but this presumption is prima, facie and not conclusive, and if it appears that she was not urged or drawn to the offense by him, but was an inciter of it, she is liable as well as he. (Seiler v. People, 77 N. Y. 413; Goldstein v. People, 82 id. 233.) There was no direct proof upon the trial that the defendant acted under the coercion of her husband in committing the offense; on the contrary, the proof tended to' show that she acted on her own responsibility and voluntarily incited and aided in the consummation of the crime. There is evidence showing that she first suggested to her husband and the accomplice the idea of obtaining the check; that she went out with her husband and returned after an absence of four hours with a check for $6, which she had procured, and delivered the same to her husband, and that the erasure in the check was made in her presence. This check was obtained upon representations by her that she wished to purchase the same because the post-office was closed and she could not obtain an order there, and that she desired to send it that evening to her sister or mother in Philadelphia. This representation was utterly false, as the proof showed that the check was intended and used for another and a different purpose, and there is testimony tending to show she delivered it to her husband for the purpose of being altered. He was not present when she procured the check, and it was proved that she subsequently received a considerable portion of the avails thereof as her share for her participation in the crime. There is no direct evidence that she acted under the influence of her husband, or that he directly or otherwise compelled her to engage in the transaction. As the case stands it is not a legitimate inference that the husband directed her action and that she was coerced by him. The most that can be claimed, giving a construction to the evidence most favorable to the defendant, is that it was a question of fact for the jury. Ho requests were made to charge the jury in regard to it, and the presumption is that it was fairly submitted to their consideration. We think there was no error committed in refusing the request considered. There is no ground for the contention that the defendant merely delivered a valid check to her husband and thereby committed no unlawful act, as it was established beyond controversy that she was a particejps criminis at the outset, as well as in the final consummation of the crime. If the delivery of the check was an innocent act, no reason exists why she should have received a large portion of the avails realized from it after it had been altered. They did not belong to her and she could only have received them as one of the instigators of the crime. The position taken, that the defendant is not accountable for any act done by her husband'in her presence, and especially as the act consisted only in making erasures in the check, which was not an offense against the statute, as the offense consisted in changing the amount, is without merit. The offense of the defendant was her general participation in the transaction in originating, aiding, and carrying out the plan by means of which the forgery was committed, and her presence, when a portion of the check was erased, and, as subsequently appears, with knowledge of the purpose for which it was done, was an act toward the commission of the crime for which she was responsible if she acted without her husband’s coercion. The erasures were preliminary to the subsequent alteration and it is to be presumed from the evidence that they were made for that purpose. We think there was no error committed by the court in refusing to advise the jury to acquit the defendant on the ground that there was no evidence in the case tending to prove that she committed any unlawful act, except that given by Crawford, the accomplice, and he was not corroborated. The rule of the common law in regard to the corroboration of the testimony of an accomplice has been changed by the Code of Criminal Procedure and it is provided by section 399, “ that a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” There is certainly some testimony, as we have seen, which tends to connect the defendant with the forgery alleged in the indictment aside from the testimony of the accomplice. It was proved that the defendant originally' applied for and obtained the check for $6, as already stated; that this check was-altered by inserting another name as payee, and by raising the amount, and as altered, the money was obtained on it. The-defendant was thus placed in a position connecting her with-the commission of the offense, and was called upon to make an-explanation of the facts. The circumstances were suspicious, and unexplained, it is fairly to be inferred- that she was one of the originators connected with the forgery. Taking these conceded facts in connection with the other proof showing her-presence when the erasure was made, and that she received a portion of the avails, it is manifest that the testimony tended to corroborate the evidence of the accomplice. The subject is fully considered in the opinion of the General Term by Davis, P. J., and further elaboration is not required. There is no ground for claiming that the defendant should only be prosecuted as an accessory before the fact. She was a principal in the transaction, according to the evidence, from the very beginning, and as such was chargeable as the maker- . of the forged instrument. The judgment should be affirmed. All concur. Judgment affirmed.