The indictment herein charges the defendant with the crime of forgery in the second degree. The specific charge is that the defendant forged the name of one Martin Davis as indorser to a promissory note for $1,200.00, dated the 17th day of September, 1900, payable to the order of Harriet E. Wells, three months after date, at the Commercial Bank of Rochester, and procured the said bank to discount the same on the day of its date.
At the trial the defendant admitted the signing of Davis' name as indorser upon the note, and the discount thereof at her request by the Commercial Bank, but denied criminal or fraudulent intent in the transaction. Upon the issue thus presented the defendant was convicted as charged in the indictment, *Page 448 and at the Appellate Division the judgment of conviction entered upon the verdict was affirmed.
The defendant's plea of not guilty put in issue every fact that it was necessary for the prosecution to establish in order to prove the crime charged (People v. Everhardt, 104 N.Y. 595) and intent is one of the essential elements of the crime of forgery. (Sec. 512, Penal Code.) Intent is a state of mind, and that is a thing not provable by direct evidence. This is the reason for the rule that in all cases where the scienter orquo animo is requisite to and constitutes a necessary and essential part of the crime with which a person is charged, and proof of guilty knowledge is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime. (Wharton's American Criminal Law [6th ed.], sec. 649; 3 Greenleaf on Evidence, sec. 15; Stephen's Dig. of Ev. [May's ed.] p. 56; People v. Everhardt,104 N.Y. 595; Mayer v. People, 80 N.Y. 373; Commonwealth v.Russell, 156 Mass. 196; Reg. v. Colclough, 15 Cox Crim. Cas. 92; People v. Molineux, 168 N.Y. 298.)
Since the crime of forgery is one of the exceptions to the general rule, that the intent with which an alleged crime has been committed may be inferred from the act, it is also an exception to the other general rule, that proof of one crime may not be made to establish guilt of another crime.
The specific charge against the defendant was the forgery of the name of Martin Davis as indorser upon the note for $1,200 above described. The defendant admitted the writing of Davis' name upon the note, and that she had no direct or express authority to do so; but she claimed that she thought she had the right to make such use of Davis' name and, therefore, it is now asserted there was neither necessity nor excuse for proving other forgeries said to have been committed by her.
By her plea, as well as by her testimony at the trial, the defendant denied guilty intent. Her admission as to the use *Page 449 of Davis' name was coupled with a claim of right to use it. This left the prosecution no alternative but to establish intent by the usual means in such cases, namely, by evidence of other forgeries of the defendant that were so related in time, place and circumstance to the forgery charged in the indictment as to throw light upon the intent with which it was committed. The authorities above referred to leave no room for doubt as to the propriety of this course of procedure, and we might here safely rest this feature of the case without further discussion, were it not for the strenuous contention that under the peculiar circumstances surrounding this transaction, evidence of other forgeries by the defendant was inadmissible. At this point a few facts from the record, which form a part of the history of the case, will throw light upon the question under consideration.
The defendant is the wife of one Simon J. Weaver, a merchant of Rochester, N.Y. Martin Davis, the man whose name the defendant is charged with having forged, is a lawyer of the same place. During their school years these two men formed a friendship for each other which was continued after Weaver's marriage and resulted in an association between Davis and the defendant which, to use the latter's own words, "was as intimate as it could possiby be and be honorable in every way." Davis was, for a time, an inmate of the Weaver household, and at other times frequent visits were exchanged between the Weavers and Davis. In 1898 or 1899, the defendant went to the office of Davis and asked him if he would help her raise the sum of $2,500.00. Davis declined to do so, saying that he should not care to indorse for more than five or six hundred dollars but, in a subsequent conversation, he stated that the amount must not exceed one thousand dollars. The result of these interviews was that, at different times, Davis indorsed several notes for the defendant aggregating the sum of about thirteen hundred dollars. This was the condition of affairs on the 17th day of September, 1900, when the forgery charged in the indictment is alleged to have *Page 450 been committed. On the 2nd day of October, 1900, Davis made the discovery that his name had been used on the note last mentioned. He testified that the written part of the face of the note was in his handwriting; that he had drawn the note at defendant's request; that nothing was said about his indorsing the note; that he had not indorsed it, and that he had not authorized the defendant to do so in his name. The note upon which the charge of forgery is predicated was then put in evidence. This was the state of the case when Davis was taken in hand for cross-examination by defendant's counsel. After the evidence of the relations of Davis to the Weavers had been somewhat amplified, the cross-examination was suspended for the purpose of taking the testimony of Swanton, the cashier of the bank at which the note in controversy had been discounted. Swanton detailed the conversation between him and the defendant from which it appeared that, three or four days before the 17th day of September, 1900, the defendant came to the bank and asked him if he would loan her $1,200.00 on the indorsement of Davis and her mother. He replied that he would and on the 18th day of September, 1900, the defendant presented the note in question, bearing two indorsements purporting to be those of Davis and Harriet E. Wells, the mother of the defendant. Swanton assumed that these signatures were genuine, the note was discounted and the proceeds thereof credited to the defendant's account.
When the cross-examination of Davis was resumed, it appeared that on the 2nd day of October, 1900, after the discovery by him that his name had been used upon the note of September 17th, there was a conference at his office in which he advised Weaver not to pay any of the notes made by the defendant. Defendant's counsel had several times announced his intention to go into all the family relations and domestic troubles of the Weaver for the purpose of showing that the notes signed by the defendant represented a household debt which Weaver was morally, if not legally, obligated to pay. For that purpose he had introduced in evidence several of the notes actually indorsed by Davis. The learned trial court *Page 451 excluded the evidence that seemed to have no relation to the note set forth in the indictment, but expressed a willingness to admit such evidence as tended to show the attitude and animus of Davis in the prosecution of the charge at bar, and for that purpose alone received the evidence of Davis as to the advice which he gave Weaver regarding the payment of the notes. In this behalf Davis testified at considerable length, but finally summarized his evidence by saying that he advised Weaver not to pay any notes that he was not legally liable for. This was the state of the case when the district attorney upon his redirect examination of Davis asked him the following question: "At the time you advised Mr. Weaver not to pay the $1,200.00 note were there other notes talked of in that conversation?" This was objected to as incompetent, immaterial, collateral and proving a distinct offense. The witness was allowed to answer and he testified: "I told him the amount was so large he could not afford to pay it all, and payment of part of it might possibly involve his liability as to the whole." Being then interrogated, under objection, as to the different notes referred to in the conversation, he further stated, "I had in mind this $1,200.00 note at the Commercial Bank, a $5,000.00 forged note at the Traders Bank, a $1,000.00 forged note at the Traders Bank and the notes I had indorsed genuinely and whatever accounts Mrs. Weaver had outstanding." The characterization of the notes as "forged" was stricken out on motion of the court and, as thus modified, the evidence was allowed to stand against the exception of the defendant's counsel. At subsequent stages of the trial, however, the same characterization was again indulged in by the district attorney as to the $1,200.00 and the $5,000.00 notes, and the exceptions thereto, as well as to all evidence relating to other notes than the one set forth in the indictment, are vigorously urged upon our attention as sufficient grounds for reversing the judgment herein.
The first thing to arrest attention in this regard is that the $1,200.00 note characterized as a forgery is the note in issue. The indictment stigmatized it as a forgery and the claim that *Page 452 it was a forgery was the central fact in the case of the prosecution. Whether it was a forgery was the question to be decided by the jury. To hold that under such circumstances the characterization of the note by the district attorney was legally prejudicial to the defendant, would be to encourage technicality to the limit of absurdity.
Passing to the $5,000.00 note we find that it purports to have been indorsed by Davis. He says he did not indorse it. The defendant admits that Davis did not indorse it, and says that she signed his name to it under circumstances precisely identical with those that attended her signing of his name to the $1,200.00 note. It must have been clearly apparent to the jury that the $5,000.00 note was claimed to be a forgery, and while the district attorney might well have referred to it in some milder form than he did, there was practically no controversy over the fact that this note stood upon precisely the same footing as the note which was charged to have been forged. It is inconceivable that under such circumstances the jury could have been prejudiced or misled by what the district attorney said about the note.
That the $5,000.00 note was properly received in evidence cannot be doubted. It was received subject to the distinct limitation that it was only competent as bearing upon the intent with which the defendant wrote the name of Davis upon the note in issue. Under the authorities above cited, it would have been admissible in the first instance upon the question of intent, and it is difficult to understand why it was any the less proper for that purpose after the cross-examination of a witness had rendered it admissible in still another aspect of the case. Davis, having been cross-examined as to the advice he gave Weaver about paying the notes made by the defendant, had the right to exculpate himself from the implication of hostility or animosity toward the latter, and, therefore, it was competent for him to explain what he took into consideration in giving the advice.
It is urged that the introduction in evidence of other notes than the one set forth in the indictment must have been *Page 453 prejudicial to the defendant, because it enabled the jury to make comparison of handwritings, and this was unnecessary since there was no denial of the fact that the defendant had signed the name of Davis to the note in issue. This argument ignores three important facts. The first is that, notwithstanding defendant's admission, she denied any criminal intent. The second is that the signature, which purported to be that of Davis, was competent evidence upon the question of intent. The third is, that there was some evidence upon the subject of attempted simulation. The evidence of Swanton, the cashier, was to the effect that he discounted the note in issue, believing that it bore the genuine indorsement of Davis. The defendant's own signature was before the court as a standard with which the jury had the right to compare the indorsements written by her in the name of others, for the purpose of ascertaining whether they disclosed any evidence of simulation and, hence, of criminal intent. (Cobbett v. Kilminster, 4 Fost. Fin. 490; Hickory v. U.S.,151 U.S. 303; Merritt v. Campbell, 79 N.Y. 625; People v.Molineux, 168 N.Y. 330.)
It is also claimed that error was committed in allowing the district attorney, upon defendant's cross-examination, to put in evidence certain notes purporting to bear the indorsement of S.J. Weaver and Harriet E. Wells, but in fact written by the defendant. This criticism cannot be intelligently discussed without another brief reference to the record.
When the defendant took the witness stand the prosecution had produced no collateral evidence of defendant's criminal intent in using the name of Davis upon the $1,200.00 note, except that relating to the use of the same name upon the $5,000.00 note.
The defendant had admitted the use of Davis' name upon both of these notes, but denied guilty intent. Then, instead of standing upon some supposed or implied authority to use the name of Davis, arising out of his relations to her family or out of other circumstances, defendant admitted that from January, 1898, to September, 1900, Davis had never refused *Page 454 to indorse a note for her when she requested it, and that she had asked him to indorse various notes which, in September, 1900, amounted to about $1,300.00. She testified, "I presented the note with mother's indorsement on it and Mr. Swanton told me he would feel safer if he had Martin's (Davis') name on it, and I went toMr. Davis' office and he wasn't in and I had to have the moneythat day, so I signed his name to it. I think if I am notmistaken I made two trips to Mr. Davis' office to find him afterthat, but could not find him." She admitted that she had never told Mr. Davis that she had signed his name as indorser on the $5,000.00 note, although that note had been made and discounted more than a month before the note in issue. She had been pressed upon her direct examination to state fully why and how she came to use Davis' name, and the court had ruled that the witness might state what her purpose was in making this paper. But, in spite of this ruling and the skillful leading of her counsel, she had refrained from stating a single fact or circumstance upon which a jury could predicate any authority to use the name of Davis upon the note in issue, except her belief that it would be sanctioned and ratified by him. When asked, upon her direct examination, to state her belief as to her authority to use Davis' name, her answer was: "My belief was, I expected these funds I had been talking about and I would have means to take care of it, and, if I did not, that my husband would take care of it for me." Then she was asked this leading question: "At the time you made this note and put the name of Davis upon it, did you believe that Mr. Davis would sanction and ratify the writing of his name by you?" to which she answered, "I did." In the same connection she had testified that at the time of making the $1,200.00 note she believed she was authorized to use her mother's name upon it. She had reiterated, over and over again, the absence of any intent to defraud Davis or the bank. This was the situation when her cross-examination was taken up and she was interrogated as to some of the other notes, which it is claimed were erroneously received in evidence, and in reference *Page 455 to which it is asserted that explanatory evidence was improperly excluded.
It appeared, as above stated, that the $1,200.00 note had been drawn by Davis at defendant's request. The theory of the district attorney was that this was a part of defendant's plan to give the note an appearance of genuineness that would disarm suspicion as to the reality of the indorsement. The defendant, on the other hand, claimed that she had Davis draw the note because she was not familiar with that kind of business. For the purpose of showing defendant's knowledge in such matters, the district attorney called her attention to several notes, and among them was one which was admitted to be in defendant's handwriting. It was offered in evidence and objected to on various grounds, whereupon the court asked the defendant if at the time of the transaction in September, 1900, she knew how to draw a promissory note. She answered that she did not. The note was received in evidence, as the court stated, "for the purpose of showing that she had written, in her own handwriting, a complete note without any printed blank." Thereupon the defendant was permitted to explain that she had copied the note from an old renewal note.
This ruling calls for but little comment. If the introduction of this note tended to show that defendant had some ulterior motive in procuring the note in issue to be drawn by Davis, it was competent. If it did not serve to establish that, it was quite immaterial and harmless. In either event it presents no error that requires reversal of this judgment.
After further cross-examination of the defendant at great length as to her alleged admissions upon the former trial, and in a conversation with one Fenn, the cashier of the Alliance Bank, the district attorney took up the notes for $5,000.00 and $1,200.00. When asked whether she intended to make Davis liable upon either of these, the defendant testified, "I intended to take care of them. I did not intend Martin Davis should be called upon to pay these notes, and did not intend the bank should hold him legally liable on these notes. I did not *Page 456 intend he should be liable for them." It was at this juncture that the district attorney asked the defendant if she had placed her mother's name upon the $5,000.00 note, and also upon a $1,500.00 note made in July, 1900. She admitted signing her mother's name to the $5,000.00 note, but declined to answer as to the $1,500.00 note on the ground that it was not the issue being tried. By direction of her counsel she answered the question, and answered in the affirmative. Then she was asked if she had placed the name of S.J. Weaver upon the back of that note and without objection she answered that she did. The note was then offered in evidence and objected to as immaterial, incompetent and collateral. It was received and defendant's counsel excepted.
Another note for $1,000.00, dated August 9th, 1900, was shown the defendant and she was asked if she had written the names of her mother and S.J. Weaver on the back of that note and without objection she replied in the affirmative. This note was also offered and received in evidence over the objection of defendant's counsel, the court remarking that "it will necessitate the trial of the incidents concerning each of these notes to put them in evidence."
The prevailing opinion asserts that it was error for the court to receive in evidence the two notes for $1,500.00 and $1,000.00 respectively, purporting to bear the indorsements of S.J. Weaver and Harriet E. Wells. The case of People v. Corbin (56 N.Y. 365) is relied upon as authority for the broad proposition that evidence of other offenses than that charged in the indictment is never admissible on the question of guilty knowledge or intent, but a mere glance at the opinion will suffice to show that it lays down no such startling doctrine. On the contrary, all that is held in that case is, that an admission by a defendant of the forgery of one name is not competent evidence to prove the intent with which a different and entirely disconnected name has been used by one accused of forging the latter. But that is not this case. Here the other notes were not only made at about the same time, by the same person and in pursuance of a single purpose, *Page 457 but the names used were those of persons who were associated with each other and with the defendant, and had all figured on some of these notes together and on others separately, in such a way as to create that combination of time, place and circumstance which is essential to make such proof competent under the authorities above cited. There was such a connection between the transactions and the persons involved in the various notes now under discussion, that they were all competent as bearing upon the intent with which the defendant signed the name of Davis to the note set forth in the indictment.
It is further contended that, since the court admitted these last-mentioned notes in evidence, the defendant should have been allowed to go fully into all the details of her household economy for the purpose of explaining why she thought she had authority to use the names of her husband and mother. A complete answer to that contention is to be found in the record. She was given all the opportunity that was legitimate and proper. The court could not well have gone further in that direction than it did, without utterly disregarding all rules of evidence and all waste of time in the conduct of the trial.
One of the first questions addressed to the defendant upon her redirect examination was as follows: "State why you put the name of Simon J. Weaver on the back of the $5,000.00 note, and state it fully?" The defendant answered, "Because I thought he was good for it and would pay it." When pressed for a further answer she said, "I don't know any further why; it went to pay his household bills and to take up an obligation of his."
So, with reference to the use of her mother's name, the defendant was permitted to make the fullest explanation. She stated that she placed this name on the $5,000.00 note and the $1,200.00 note, "because I thought I had a perfect right to use her name and would keep our family troubles from her and not worry her with them, and I fully believed when I asked for the money it would come, as I had been promised it for some time." This was followed by an ample *Page 458 statement as to the use made of the proceeds of the $5,000.00 note and the history of the various other notes, and by the mother's own testimony to the effect that, although the defendant had no express authority to use her name, its use had never been questioned. To quote the mother's own language, "she had no written power of attorney, but she had an authorization, I might say, to sign my name and open my mail matter and draw checks and such things."
What more should the court have done? It is said that since the prosecution was permitted to prove the defendant's alleged forgeries of the names of her husband and mother, the defense should have been allowed to put in evidence a large package of bills and receipts showing the numberless items of household expenditures, which, it is said, went to make up the sum totals for which the various notes were claimed to have been given. Suppose that had been done, what would it have explained? Simply that the defendant had expended a far larger sum of money than the monthly allowance which she received from her husband. Would these household bills have shown the reason or authority for the creation of the indebtedness evidenced by the notes? Would they have proven anything upon the subject of defendant's authority to use the names of her husband and mother upon these notes, that was not stated in the defendant's oral testimony? Would a trunk full of tradesmen's bills throw any light upon the intent with which these names were used? Is it not obvious that such evidence would simply have multiplied collateral issues, until the real question in the case would have been lost sight of altogether? These bills and receipts would have had no probative weight in determining the question whether the defendant was authorized to use the names of her husband and mother as indorsers upon promissory notes, much less upon the question whether she had authority to use the name of Davis for that purpose. Their reception in evidence would have opened the door to endless and useless cross-examination as to their correctness and reasonableness; as to their payment out of the proceeds of notes purporting to bear the *Page 459 indorsement of the husband and mother; as to the husband's knowledge of and legal liability for the indebtedness, and, at the end of it all, the real question would have been buried beneath a mass of collateral, irrelevant and inconclusive matter.
Another prominent fact in this case needs to be considered in the effort to get a fair perspective of the trial. On the 4th day of October, 1900, the defendant signed a paper in which she confessed that she had forged the names of Harriet E. Wells and Martin Davis as indorsers to the note in issue. It was received in evidence without objection. We are not concerned with the academic or moral considerations suggested by the husband's participation in the interview that led to the signing of this confession. We are dealing with law and fact instead of sentimentality. The explanation of the defendant that she signed the confession at the request of her husband, and upon the representation of Swanton that he simply wanted it for his own use and to save loss to the bank in case of a trial, is in the record. If there was any other explanation of this unfortunate episode it was not offered at the trial. The confession was in the case and the court was bound to submit it to the jury. It was not conclusive, but clearly competent and strongly evidentiary.
We now come to the criticisms upon the charge to the jury. It goes without saying that the charge is to be considered, not in sections or hypercritically as a thing separate from the rest of the trial, but fairly as a whole and in the light of all the proofs, facts and circumstances in the case. When the charge is so considered it will be perceived that the learned trial judge had a most difficult and delicate duty to perform. Under the criminal law he was compelled to submit to the jury as an issue of fact, a question that in a civil case and upon the same proofs would have presented only an issue of law. In other words, the trial judge was called upon to deliver an impartial charge in a criminal case so essentially one sided on its merits that the same evidence in a civil case would have required a decision against the defendant as matter of law. The only *Page 460 semblance of a question of fact on the merits was whether the defendant believed that she had the right to use the name of Davis as indorser upon the note of September 17th, 1900. The defendant's expressed belief in that regard was of no legal consequence, and constituted no defense to the charge of forgery, unless there was some colorable ground for that belief based upon then existing facts. (People v. Stevens, 109 N.Y. 159.) This does not mean a mere belief in, or hope of subsequent sanction or ratification of a wholly unauthorized act, but a belief founded upon facts in existence and known to the defendant at the time of the commission of the act which is challenged as a forgery. When the evidence of the defendant upon this point is carefully scanned, not even the subtle and ingenious arguments of her able counsel can find anything of genuine substance to lay hold of.
As we have seen, the defendant admitted that Davis had never refused her requests for indorsement, and yet she had used his name upon the $5,000.00 note without calling his attention to the fact. The defendant asked Davis to write the face of the note in issue for her, without any intention of using his name thereon as indorser, but when the cashier of the bank suggested that he would like the name of Davis as an indorser, she straightaway went to the latter's office to obtain the very authority which she now claims to have then had. Failing to find Davis, the defendant sought him a second time, and being again unsuccessful, she then, for the first time, concluded that he would sanction and ratify her act although there was no reference to the subject in any of their subsequent interviews. It is in the light of these circumstances that the charge of the trial court is to be judicially considered.
Since no isolated extract from the charge can be regarded as a fair index of its tenor as a whole, we shall content ourselves with the observation that, taken in its entirety, and read in the light of the evidence, it was a reasonably fair and impartial presentation to the jury of an exceedingly delicate and troublesome case. *Page 461
It is no argument to say that the parts selected for criticism are faulty and vulnerable. If that is to be the test, few charges will survive the ordeal of appellate scrutiny. The question is not whether the charge is perfect, but whether under it the case was fairly submitted to the jury. Measured by this standard, we think there is no such error in the charge as to call for a reversal of the judgment herein.
The judgment should be affirmed.
BARTLETT, J., concurs with O'BRIEN, J.; PARKER, Ch. J., HAIGHT, VANN and CULLEN, JJ., concur in result in memoranda; WERNER, J., reads dissenting opinion.
Judgment reversed, etc.