People v. Elmore , 3 N.Y. Crim. 264 ( 1885 )

Daniels, J.

The crime of which the defendant was convicted was contained in the second count in the indictment, by which she was charged with having in her possession, and uttering and disposing of as true, a check on the Chemical Bank of Hew York for the sum of $13, purporting to be drawn by William F. Scott, she well knowing the same to have been forged. The fact that the check was forged was sufficiently proved to render the evidence upon the subject proper for the consideration and decision of the jury, and that she passed it under circumstances rendering it probable that she understood that to be its character, might well be inferred from what transpired at the time when that was done, and her conduct afterwards, and the additional circumstance that near the same time she passed another check, which probably was forged, under somewhat similar circumstances. Her conduct after the passage of the check afforded additional reason for believing that what she did had been done with a criminal intent, and the only points required to be determined for the disposition of the appeal, are those relating to the admission or exclusion of evidence, and the manner in which the case was finally submitted to the jury.

It was not proper to receive the statements of the witness MeTaggart, that the defendant, immediately after she had passed the check, changed her residence, and obtained another in a somewhat remote part of the city. But the error intervening in the refusal of the court to strike out this evidence when it was shown to have been given wholly upon information received by the witness, was afterwards corrected by the testimony of the defendant, who, upon her own direct examination, stated that the change was made in her place of residence substantially as MeTaggart had testified be had been informed was the fact. By her evidence the fact was proved beyond controversy, and it was in the case therefore for the consideration of the jury, the same as though MeTaggart had given no evidence upon the subject. After this additional proof was received, there was no ground for the exception to stand upon, which was taken to the refusal of the court to strike out the other statement.

The fact that the defendant passed, another small check on Mr. Noremac about three weeks before the passing of the check mentioned in the indictment, was shown upon her own cross-examination, and was a circumstance which the jury might consider as having some bearing upon the reliability of her testimony as a witness upon the trial. It was a transaction quite similar to the one upon which the indictment rested, and very near the time of the latter occurrence, and so far also tended to prove that she probably was engaged in uttering forged checks of a small denomination.

That she had been arrested would not, if the fact had stood by itself, have been proper proof for the consideration of the jury, but as it appeared that her arrest had been followed by a conviction and fine, the fact was one which the jury could take into consideration as having some bearing upon the weight of her evidence. The other testimony in the case relating to this arrest and conviction, proved no more than she herself admitted to be the fact, and for that reason receiving it as part of the proof in the case, in no possible manner prejudiced her in her defense. Her history, as well as her conduct near the time of the passing of the check, were not improper subjects for the jury to consider, and the proof elieited upon these subjects was regularly allowed to form a part of the case.

The legal attributes of the crime were very clearly explained by the learned recorder to the jury, and they were directed that they could not convict the defendant unless they found the fact that the check was forged, and that she uttered it knowing that to have been its character, with intent to defraud the complaining witness. These inquiries were submitted to the jury, with the qualification that the defendant was entitled to every reasonable doubt arising upon the evidence in the case, and no more than that could be required in its proper submission to the jury. The court was not bound, after having so submitted the case, to repeat the directions which were given, and the exception taken to the refusal to do that is not well founded. Neither can the exception be of any advantage to the defendant, which related to the disposition of the request concerning the Noremae check, for the time of its passage was not so remote from the time of the passing of the check set out in the indictment, as to render it an improper subject for consideration by the jury. But if it had been, then as the learned recorder appeared to confound it with another check passed by the defendant on the same day, her counsel should have corrected this misapprehension, if any further directions could be required upon this subject to be given to the jury. But no attempt was made to direct the attention of the recorder to the fact that this was not the check which was passed on the day of the passing of the check set out in the indictment.

There was evidence excluded as to the range of the depositors of the bank. But if it had been received, no possible advantage could have been derived from it by the defendant. The case, as it was presented, included the inquiries essential to the commission of the crime of which the defendant was found guilty, and in neither aspect of it would it have been reduced in its force, if this evidence had been received.

The proof upon all the points was sufficient to require the case to be determined by the jury. The probabilities maintained by it were decisively against the defendant, and neither of the exceptions which have been presented in the points of her counsel, will justify this court in interfering with the result. Her conviction seems to have been well warranted, and both the judgment and the order should be affirmed.

Beady, J., concurs.