The People vs. Anthony Badgley, 16 Wend. 53

By the Court, Nelson, C. J. The note having been destroyed by the defendant, so that neither the original or a copy could be produced before the grand jury, an exact description of it in the indictment is not to be expected or required. Unless this was so, a conviction in most cases, would be impossible, where the forged instrument was lost or destroyed. Where the description cannot be given either literally or in substance, the reason for the omission must be stated, and then such an account of it as shall fairly apprise the prisoner of the particular offence charged, is all that can be demanded.

The view applies emphatically to a case where the prisoner has himself intentionally concealed or destroyed the instrument. 2 Cowen, 522, and cases cited. Although the indictment does not, in express terms, aver that the note forged purported to be signed by Daniel Clark as maker, still it professes to set out the purport of the entire note, and the name of Daniel Clark is given as that of the maker. It is a part of the description of a note alleged to have been forged and counterfeited. The counts are informal in this respect, but substantially good.

It is said the note, the purport of which is set forth in the indictment, if conceded to have been counterfeited by the defendant, would not establish the crime of forgery. I am not sure that I comprehend the force of this objection, but suppose it to be nothing more than a reiteration of the position taken, and disposed of in the second point. It is no doubt true, if the indictment is to be viewed as not containing a proper averment of the forgery of the name of Daniel Clark as maker of the note, no offence is charged; but 1 have before given what is deemed an answer to this objection.

It is urged, that as the note proved to have been forged bore date on a particular day in May, it must be considered as different from the one the purport of which is set forth in the indictment, which does not specify any day. This objection is answered in the first point. It is resolveable into the proposition that the note, under any circumstances, must be perfectly if not literally described. The pleader does not profess to give the date, and assigns his reason for the omission ; one that satisfies the rule of law.

It is said that the confessions of the defendant were not of themselves sufficient evidence to authorize a conviction, without proving aliunde, that the crime charged had been committed by some one. This I am of opinion is the only important question in the case. In the case of The People v.

Hennessey, 15 Wendell, 147, this court after a review of the cases and authorities by Chief Justice Savage, came to the conclusion that the prisoner had been wrongfully convicted upon proof of his confessions alone, although it was apparent there was other evidence, which was not produced to prove that an offence had been committed. The prisoner was tried and convicted under the statute, 2 R. S. 678, § 59, upon a charge of embezzlement of money collected while in the employment of another, and the conviction was had upon his own confession, without any corroborating fact or circumstance.

None of the persons from whom the money was collected were called. In the case under consideration, Clark, whose name was alleged to have been forged, died before the trial. His son proved that the defendant, in April, 1833, opened an account with the house in the city of New York of which his father and himself were members. The first bill was made in April, amounting to $520; and between that date and the 2d of August following the account was increased to $1200, and nothing had been paid.

The defendant pretended that the note was given for pork sold in the city of New York; this witness proved, so far as his knowledge extended, that none had been bought of the defendant in 1833, by his father or the firm, and that his father was in easy circumstances as to property.

In addition to these facts it appeared that the defendant was very solicitous to regain possession of the note from the sheriff, and also from Losie, after it had passed into his hands; that his connections, by reason of his great anxiety and importunity, advanced $500 to obtain possession of it; and that it was burnt by him as soon as it came into his hands. The admission of the defendant that he forged the note is very full and explicit, though made under circumstances and with an object that might well qualify its effect, were it not for the other evidence in the case.

It must be conceded that the allegation of the forgery of the note was made with a view to impress Myers and Losie with, the belief that it was valueless, and thereby induce them the more readily to give it up. Hence a motive existed for the assertion, even if the note were genuine. But this explanation, which might have been thus given to the confession, discreditable enough as it was to the defendant, is rebutted by the fact of the immediate destruction of it when it came into his hands. The admission of the forgery is thus not only left unexplained, but is confirmed.

Why destroy a note against a responsible maker, if it was genuine ? This is a strong corroborating fact, irreconcileable with the idea of innocence, especially when the individual is shown to be a man of intelligence and of business habits. It should be remembered too, in connection, that the note was purchased by the friends' of the defendant at his earnest solicitation, avowedly to prevent a threatened criminal prosecution, upon the eve of the sitting of the court. There are other facts and circumstances tending to confirm the truth of the confession.

I assume that Daniel Clark whose son was a witness, was the person referred to by the defendant. If not, and some other individual of that name was the real maker of the note, the defendant should have produced him, and proved the falsity of his own admission. This it was competent for him to have done,- and the omission raises a strong inference against him. If the note was genuine and^the defendant innocent, he had the means within his control to contradict the only evidence against him.

Of course he knew, in such case, the maker, and if he was not to be found, he could at least have given some proof of the transaction out • of which the note arose. If it was given on a sale of .pork, as he had alleged, why did he not prove the fact, or some circumstances connected with it? He not only omitted' every explanation of this sort clearly within his power if innocent, but we have on behalf of the prosecution negative evidence that his account of the note, when he was negotiating it, was untrue.

The son of Clark, who was an active member of the firm, knew nothing of the sale of the property for which the note was alleged to have been given; and' the fact of an indebtedness to the amount of $1200 tends greatly to repel the idea that Clark ever gave any note to the defendant. Full proof of the body of the crime, the corpus delicti, independently of the confession, is not required by any of the cases ; and in many of them slight corroborating facts were held sufficient. Here there are a number of facts, and some of them strong and convincing.

The highest and best evidence in the power of the prosecutor was produced, and no effort was made by the accused to explain, where explanation was easy and complete upon the assumption of innocence. There is much circumstantial evidence of the forgery of the note, which, in connection with the confessions, brings the mind to a satisfactory conclusion of the defendant’s guilt—a conclusion justified by abundant authority. Most of the leading cases were reviewed in the case of Hennessey, and it would be useless again to go over them.

It is not material to inquire whether the note was passed to the sheriff for “ ease and favor,” 1 R. L. 432; 2 R. S. 286, § 59; 7 Johns. R. 159; 8 id. 76; and being thus void, whether here was an uttering and publishing within the second and fifth counts of the indictment. Even if the rule was, as contended for by the counsel for the defendant, the manner in which the point was submitted to the jury obviates all objection.

But there can be no ground for objection to the testimony in respect to the other counts; if it establishes any thing, it is the forgery of the note with the intent to defraud Clark or Myers, or both, as well as the possession of it by the defendant knowing it to be forged, with the intent to utter and pass it for the like purpose. The judge erred, I think, in submitting the question to the jury whether the description of the note in the indictment was such as to mislead the defendant or not, in preparing his defence. That question belonged to the court.

The error, however, was in favor of the prisoner, as we are satisfied there was no valid objection to the description, nor any variance between it and the proof. Proceedings remitted to oyer and terminer.