The People vs. Benjamin Rynders, 12 Wend. 425

By the Court, Savage, Ch. J. I will consider the several exceptions in the order in which they are taken ; and first, was the district attorney compelled to elect which count he would proceed upon ?

That there would be an incongruity in incorporating in the same indictment offences of a different character, such for instance as forgery and perjury, cannot be denied, and that in such a case a court would refuse to hear a trial upon both, there can be no doubt; but when offences of the same character, differing only in degree, are united in the same indictment, the prisoner may and ought to be tried on both charges at the same time. Such is this case. The prisoner was indicted for forging the check, and also for publishing it as true, knowing it to be false.

These are different offences, and punished with different degrees of severity, but ' were properly united, both in the indictment and the trial. The prisoner might be convicted of one and not of the other. So also I might give instances of murder or manslaughter, of grand and petit larceny, and of assault and battery, and an assault with intent to murder, &c.; in which cases no court would refuse to try the prisoner upon all the offences charged. Secondly. It is objected, that the instrument does not state that the check purported to be the act of another, and that it was in writing, &c.

The common form no doubt is to pursue the words of the statute, and therefore the present indictment contains unnecessary words. The words of the revised statutes are, “Every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit, ” and then the different instruments are described, not by-name, but by a general description. The present indictment follows the form upon the old statute, which followed the English statutes, and hence the English forms were appropriate.

The indictment charges, that the defendant falsely made, forged and counterfeited, and did cause or procure to be falsely made, forged and counterfeited, and did willingly act and assist in the false making, forging and counterfeiting a certain check. The present statute says nothing about causing the instrument to be forged, or acting and assisting in such forging ; and no doubt because included in the more general terms, and therefore no others are used. This phraseology in the indictment does no harm ; it is mere surplusage.

The former statute specified by name the different instruments, such as bond, bill of éxchange, 'promissory note, &c.' The present statute does not specify in that manner, but gives a general description, as an instru'ment or writing, being, or purporting to be the act of another &c. When, in the present indictment, the pleader says, that the defendant feloniously did falsely make, forge and counterfeit a certain check, and sets it out in hcec verba, he shows that the defendant has forged an instrument or writing ; for the writing is implied in the term check.

There is no such thing as a verbal check ; it is a solecism. It is shown then that the forgery was of an instrument in writing ; and also that it was, or purported to be, the act of another; to wit, the act of Graves & Merrick, by Henry Allen. It is shown, also, that it was an instrument by which a pecuniary demand purported to be created, by which rights or property were affected. This is precisely such an instrument as the legislature have said it shall be forgery in the third decree to counterfeit.

The indictment, therefore, contains every thing which is nescessary to a due administration of the law, unless it is to be presumed that the court and jury do not know, without being specially informed, that a check is an instrument in writing, and coming within the statute without a special averment.

But it is said that the English adjudications require this particularity, and they undoubtedly do so, when it is intended to oust the defendant of the privilege of clergy ; but where there is no such object, it is sufficient to aver that the defendant forged a certam writing, describing it truly, and setting forth its tenor. 3 Chit. Cr. Law, 1040, 1041. It seems more proper, Mr. Chitty says, to lay it as a certain paper writing, purporting, to be the instrument which the statute describes since the essence of the charge is, that it is a fiction.

The present indictment would have been more formal, and in conformity with precedents, if it had charged the defendant with forging a certain paper writing, purporting to be an instrument in writing, and the act of Graves & Mérrick, or of Henry Allen, by which a pecuniary demand purported to be created, the tenor of which is as follows, and then set it out as was done in this case ; but it seems to me that enough is stated to show the court the precise nature of the offence with which the defendant is charged. And when to this consideration we apply the directions'of the legislature, 2 R.

S. 728, § 32, that no indictment shall be deemed invalid nor shall the trial, judgment or other proceeding t hereon be affected, by reason of any defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant, we cannot hesitate to pronounce the indictment good. It cannot be pretended that the defendant was prejudiced on the trial by the omission complained of. The court ,were therefore right in overruling the objection. Thirdly.

The defendant offered to show that there was another, indictment subsequently found for the same offence ; which second indictment was for personating Henry Allen, and receiving from the bank $982,48.

The provision of the revised statutes, under which this proof was offered, is as follows : “ Tf there be at any time pending against the same defendant two indictments for the same oflence, or two indictments for the same matter, although charged as different of-ences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed.” The answer to this objection is, that the offences charged are entirely distinct, and I see no reason why tjie defendant might not be punished for both.

The one is for forgery ; that of-fence was completed by the act of signing another person’s name, with intent to defraud any one, whether the bank, or Allen, or any other. The act of personating Allen was not necessarily connected with the forgery; nor can the persona-ting of Allen and the forging the check be considered the same offence, or the same matter. The charge of the circuit judge was correct and he properly refused to instruct the jury as the prisoner’s counsel requested. There was no foundation laid in the testimony for such a charge as was requested.

There was no evidence that the prisoner was owner of the money. He might have proved it, if such was the fact; on the contrary the facts all tend to disprove such ownership. The oyer and terminer are therefore advised to proceed to pronounce sentence upon the prisoner.