author: Van Brunt, P. J.: O’Brien, J. : Follett, J.

text:
    The People of the State of New York, Respondent, v. Erastus Wiman, Appellant.

      Partners as to others only — criminal- intent of cm alleged forger to defremd — evidence required —what does not amount to the crime of forgery.

    Whether or not persons associated together in business were partners between themselves, depends largely upon their intent. Such persons may have been partners as to others, and yet no such relation may have existed between them.
    The facts and circumstances considered, under which, on the trial of a person under an indictment of forgery, a question is presented for the determination by a jury as to whether the prohibition contained in certain articles of association had not been so far departed from, and so habitually transgressed to the knowledge of the party claiming to have been defrauded, that the act of the defendant, in drawing a check to the order of a third person, signing the name of the association thereto, and indorsing thereon without authority the payee’s name, and depositing the check to his own credit for the purpose of transferring a portion of the funds of the association to his own private account, was insufficient to establish a criminal intent to defraud.
    Where under such a state of facts the court charges that all questions as to whether the indorsement was made with intent to defraud the payee, or to defraud the bank in which the check was deposited, were excluded from the consideration of the jury, and the only fraud which it was claimed that the defendant had attempted to perpetrate, was against the firm of which he was
    ■ a member, the defendant is entitled to an acquittal, unless the unauthorized indorsement of the check was made with the intent and for the purpose of defrauding the firm.
    The withdrawal of cash by a member of a firm from its assets for his own purposes does not constitute a criminal offense.
    If a person is not a member of a firm, but is authorized to draw the firm checks, an abuse of that authority, even though otherwise criminal, would not of itself constitute the crime of forgery. It might be a fraud upon the firm, but such fraud would not of itself create the crime of forgery.
    The intent to defraud which is spoken of by the statute, must have some relation to the act which is claimed to constitute the forgery; and 'where an alleged forgery is committed, not for the purpose of defrauding by means thereof, but. for the mere purpose of concealing the misappropriation of money, it does not. constitute that crime.
    In order to constitute a crime the doing of the act prohibited with the intent to do the act is sufficient, although the party may not be aware of the fact that he is transgressing the law, but there is no possibility of an act of fraud being committed without a fraudulent intent.
    The word “fraud” imports guilty knowledge, and an intent to defraud involves some moral turpitude. The taking of the money of another knowingly and wrongfully is to defraud, and the act is not qualified by the intent to return.
    If, upon a criminal trial, it is competent upon the part of the prosecution to prove the indebtedness of an alleged forger as bearing on the question of his intent, the defense has the right to prove the means which he had to meet such indebtedness in order that any inference which might be drawn from such indebtedness may be rebutted.
    The intent with which a person indorsed another’s name to a check payable to such other, is an essential ingredient of the crime of forgery, and the presence or absence of such intent is a question of fact and not of law. Per O’Brieit, J.
    Follett, J., dissenting.
    Appeal by tbe defendant, Erastus "Wimaii, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 20th day of June, 1894, at the New York Oyer and Terminer, upon the verdict of a jury convicting him of the crime of forgery in the second degree, and also from an order made on the 20th day of June, 1894, denying the defendant’s motion for a new trial.

      B. F. Tracy, for the appellant.

      John, R. Fellows, District 'Attorney, and John D. Bmdsay, for the respondent.
   Van Brunt, P. J.:

In the disposition of this appeal it does not seem necessary to discuss all the interesting questions which have been presented by the counsel in their arguments. There is substantially no conflict of evidence; and the questions which arise thereon relate to the inferences which necessarily must be or which may be drawn therefrom.

It appears that for some time prior to the 1st of January, 1889, one Robert G. Dun, the defendant, and others, had been engaged in the business of carrying on a mercantile agency; the principal place of business being the city of New York. On said last-mentioned day the said Dun, the defendant, and one Arthur J. King and Robert D. Douglass entered into an agreement whereby they agreed to associate themselves in the business of carrying on a mercantile agency for the period of five years then next ensuing. Such agreement recited that the said Dun was the proprietor and the sole owner of the business known as tire Mercantile Agency, which had been for many years, and still was, conducted under the name of R. G. Dun & Co., and Dun, Wiman & Co., in various cities in the United States and elsewhere, and of all the chattels, plant, fixtures, records and other property used in said business, as well as the goodwill thereof and of said firm names.

This agreement provided that Dun should contribute to the business the property above mentioned and described, but that said property should remain his sole and undivided property, and neither the association nor any other member of it had, nor by said agreement should acquire, any right, title or interest therein; that Wiman, King and Douglass should devote their whole time and attention and labor to the work of promoting, enlarging, carrying on and making profitable the said business; that for their services Du»n should pay to them and to each of them as follows: To Wiman a sum equal to seventeen per cent of tlie net profits of the business; to King a sum equal to six per cent of said net profits, and to Douglass a sum equal to five per cent of the net profits, Dun agreeing that the sums to be paid for such services in any one year should not be less than $10,000 to Wiman, $5,000 to King, and $5,000 to Douglass.

The agreement further recited that the association was formed for the purpose of encouraging and stimulating in the said Wiman, King and Douglass a jealous pride and ambition in the character and repute of the said business, as well as to induce their extraordinary exertions in building up and extending the business and increasing its profits; and that to that end the articles provided that their compensation should be (to some extent) contingent upon the profits of the business, but as to them the amount of the profits only afforded the basis of determining the amount of their salaries, and that neither of them had ■ any right, title or interest in or to the said profits as such.

Then followed provisions as to how the term net profits ” should be construed, and how they were to be ascertained; also, a provision for the termination of the association at the will of any party thereto by his giving oral or written notice to any other party thereto of his election to terminate, and that the association should be terminated by the death of Wiman, King or Douglass.

The agreement further provided that upon the termination of the association Dim should have the sole and exclusive right to the possession and control of all the property of said agency, and of the records and books of account thereof, and to the liquidation, adjustment and settlement of the affairs thereof.

Then followed provisions relating to the event of the death of Dun pending the term of the association, and that the business during the term of the association should be carried on under the name or style of R. G. Dun & Co.

By the seventeenth article of said agreement it was further provided : That no party to this agreement shall at any time use or employ the said name of R. G. Dun & Co., or any name under which said business shall be carried on, for any purpose except the regular and proper business of the said mercantile agency, and that neither the said Wiman, King or Douglass shall use the said name in making, signing, drawing or indorsing any note, bill of exchange, draft or other obligation, or evidence of debt, excepting only indorsements of such papers for the purpose of depositing the same to the credit of the said association or of collecting the same for the account of the association.”

By the eighteenth clause it was provided : “ That neither the said Wiman, King or Douglass shall, in his own name, sign or indorse any note, negotiable instrument, obligation, undertaking or evidence of debt, as security, either in form or in fact, without the written consent of said Robert G. Dun.”

By the twenty-second article of the agreement Wiman was permitted to draw each month $3,000, King $1,000 and Douglass $1,000, from the cashier of the agency.

From the time of the entering into this agreement in January, 1889, as had been done for many years previous, business as a commercial agency in the name of R. G. Dun & Co. in the United States, and Dun, Wiman & Co. in Canada, was carried on. The general affairs and business of the concern were under the defendant’s charge and control subject to Dun’s directions, except the department relating to New York city, which was in charge of King, and the other agencies in this State, which were in charge of Douglass. In the conduct of the financial affairs of the association more than three-quarters of all the checks issued by the concern in the course of its business were signed by the defendant in the firm name of R. G. Dun & Co., the others being signed princijially by Douglass, one of the other members of the association, Dun taking but little apparent interest in the business and being absent more than half of the time.

It seems to be admitted by the learned counsel for the defendant that under the prohibition contained in the seventeenth article of the agreement, none of the associates other than Dun would have had the right to sign any checks. But an examination of this clause seems to us to lead to a different conclusion, and that it was never intended to deprive the members of the association of the right to sign the checks of the concern, and that when bills of exchange, drafts or other obligations or evidences of debt were referred to, it was not thereby intended to include the checks which were necessary to be signed and issued in the ordinary transaction of the business, but that such provision had reference to the other classes of mercantile paper which would come under the definition of bills of exchange, drafts or other obligations or evidences of debt. In fact the practice under the agreement showed that it was not so construed by any of the parties thereto, inasmuch as checks were uniformly and almost exclusively signed by others than Dun. Therefore, in the consideration of the relation of these parties to each other, we must assume that there was no intention to restrict the rights of these associates in respect to the drawing of checks in the ordinary course of the business of the agency. It seems to have been assumed that by reason of the association of these parties together, they would have the right to use the firm name in respect to the business of the association generally; and in order to restrict this right it was considered necessary to insert the prohibition contained in the articles of association.

The management of this business, as has already been stated, except in respect to the city of New York and the agencies in the State of New York, was in the hands of Wiman, and Wiman, Douglass and King substantially managed the whole business of the association, with little interference upon the part of Dun. For several years prior to the 6th of February, 1893, the defendant had been largely overdrawn in his accounts with the association, to the knowledge of Dun.- Upon that day the defendant, desiring an additional sum of $5,000 for liis own purposes, directed the cashier of the concern to draw a check for $5,000 to the order of one E. W. Bullinger, to whom the concern was then indebted in a sum of at least $15,000, telling the cashier at the time that Bullinger wished a check on account. The cashier filled up the check according to the defendant’s direction, and delivered it to him unsigned. Upon receiving the check the defendant signed it “R. Q. Dun & Co.” as he had the right to do, and then indorsed thereon the name of Bullinger, and, indorsing it in his own name, deposited the check to his own credit in the Central National Bank, and used the money for his own purposes. Bullinger had made no demand on R. G. Dun & Co. or the defendant for $5,000 on the sixth of February, and he never saw the check until the 17th or 18th of February, 1893, and never authorized the defendant to sign his name on the back of that or any other check, or in any way upon a piece of commercial paper.

The defendant was subsequently indicted foi’ forging the name of Bullinger upon the back of this check with intent to defraud, and also for uttering the same with like intent. Upon the trial the defendant was convicted of forgery in the second degree, and from the judgment thereupon entered this appeal is taken.

Yarious questions are presented for our consideration, amongst which is the question as to the relation which Dun, "Wiman, Douglass and King bore to each,other in respect to this business. It was held upon the trial that the associates were not partners, but that Wiman, Douglass and King were substantially employees upon a salary.

As between the parties the question as to what relationship has been created by association depends largely upon intent. We think it would not be disputed for a moment but that the parties to this agreement became partners as to third persons. But it is contended upon the part of the prosecution that no such relation existed as between themselves. As already suggested, the solution of this question depends largely upon the intent of the parties entering into this agreement and association; and while it may not be possible to dispose of this question in the affirmative as a matter of law, yet there seems to have been amply sufficient evidence to go to the jury thereon. These parties were associated together in a common enterprise. The written agreement seems to have been intended to prevent Wiman, King and Douglass from having any interest in the plant of the business which belonged to Dun, and the business generally was to be subject to the control of Dun in so far as he desired to act contrary to the wishes of his associates; but in all other respects the associates of Dun were to have the right to conduct the business, and they did conduct it with but little interference or supervision upon the part of Dun. Eor the protection of his capital, Dun placed certain restrictions upon the rights of his associates, which he conceived that they undoubtedly would have had in the absence of such restriction. Hence, the article in regard to commercial paper, etc. But it was nowhere believed necessary to confer by this instrument any authority upon Dun’s associates to do anything in connection with the business. The scope of the agreement is almost entirely prohibitory and does not attempt to confer any authority or rights except in so far as it may define the extent of the interest which the associates were to have in the association. It was assumed by all these associates that, as a result of the association, as matter of law Wiman, Douglass and King, as well as Dun, could sign the firm name except where prohibited by the articles of agreement. If they were not co-partners, if it was not the intention that they should be co-partners, where did the associates of Dun get this authority ? It cannot be found in the agreement, yet it was taken as a matter of course.

It is further to be observed that the association might be terminated at any instant at the will of any party thereto by his giving oral or written notice to any other party thereto of his election to terminate it. Hence, if Wiman, King and Douglass were mere employees of Dun, one employee, by giving notice to another employee, had the power to terminate the employment of all — a fact inconsistent with the idea of mere employment.

It seems to us upon a consideration of these facts that at least the jury would have been justified in finding that it was the intention of these associates that they should be partners in this adventure, and have all the rights of partners except in so far as they were restricted by the terms of their agreement of association. If the jury so found, then Wiman, Douglass and King were equally with Dun liable for the expenses of the business, which amounted to $2,500,000 per year, and they were entitled to have the receipts of the business applied to the payment of these obligations, it was error, therefore, to rule as the court did, that it was clear that Dun was the owner of the receipts of the business, and thus deny all rights of his associates in such receipts.

The court was requested to charge as follows: That in determining the power and authority of Wiman in respect to the business of the firm, the jury is not bound to consider the written articles of co-partnership alone, but may also consider the manner in which the parties actually conducted the business of the firm ; and where the letter of the articles was knowingly and intentionally departed from by the parties, the practice and custom of the parties, rather' than the letter of the articles, shall control.”

In answer, the court said : “ Subject to what I stated to you, gentlemen, I so charge — subject to my general charge.”

The general charge of the court had been, that under the contract and tlie letter hereinafter referred to, received by the defendant, he had no right to take from the assets of the firm to his own use more than $3,000 a month.

The court also stated to the jury that the question for them to decide was: “ Did he write the name of Bullinger on the back of that check with intent to get this money from the firm that he had no right to take and apply it to his own purposes ? In other words, did he write the name of Bullinger upon the back of that check with the intent to defraud Mr. Dun or his partners ? ”

The evidence in this case showed that to the knowledge of Dun, Wiman had been in the habit of overdrawing his account for several years. Dun would protest, Wiman would repent, and, to Dun’s knowledge, repeat the offense immediately thereafter. On the 12th of January, 1893, Dun wrote to Wiman protesting against his overdrafts; Wiman replied, admitting the charge, explaining the reasons why it had occurred, and promising not to increase the amount. And shortly thereafter he drew the check and made the indorsement in question, in accordance with his usual habit. It would seem, under these circumstances, that it was a question for the jury to determine as to whether the prohibitions of the articles of association had not been so far departed from and so habitually transgressed,- to the knowledge of the parties now claiming to have been defrauded, that upon the act of the defendant in drawing the check in question for the purpose of transferring a portion of the funds of the firm to his own private account, a criminal intent to defraud could not be predicated.

The further question presented is as to whether an intent upon the part of the defendant to defraud his co-partners would be sufficient to justify a conviction of forgery under this indictment. By the charge of the court all questions as to whether the indorsement was made with intent to defraud Bullinger, or to defraud the bank in which Wiman deposited the check, were excluded from the consideration of the jury. The only fraud which it was claimed the defendant had attempted to perpetrate was upon the firm of N. G-. Dun & Co. Unless, therefore, the unauthorized indorsement of the check was made with the intent and for the purpose of defrauding the firm the defendant was entitled to an acquittal. If Wiman was a member of this firm the withdrawal of these funds from tbe assets of tlie firm for his own purposes would not constitute a criminal offense. Even if he was not a member of the firm he was authorized to draw the firm checks, and an abuse of that authority, even if otherwise criminal, could not constitute forgery. It might well be a fraud upon the firm, but such fraud would not of itself create the crime of forgery.”

If Wiman was a member of the firm the misappropriation of the funds of the firm to his own use would not subject him to criminal process; and even if not a member of the firm, he having authority to draw the check in question, the crime alleged relating solely to the indorsement, the criminal intent must apply not only to the drawing of the check but to the unauthorized indorsement. The evidence in this case shows that the intent to defraud, if any existed, related entirely to the drawing of the check, and that the unauthorized indorsement was resorted to for the purpose of concealing the overdraft. It is conceded that there was no intention upon the defendant’s part to defraud Bullinger, nor is it claimed that he believed that .Bullinger could incur any liability because of such indorsement, as the defendant well knew and as the court charged the jury he believed, that the check would be paid on presentation at the bank upon which it was drawn, the firm having ample funds to meet the same. It would seem that the intent to defraud, which is spoken of by the statute, must have some relation to the act which is claimed to constitute the forgery; and where the alleged forgery is committed, not for the purpose of defrauding by means thereof, but for the mere purpose of canceling the misappropriation of money, it does not constitute the crime. This principle is recognized by Wharton (§ 11M), where he says that in forgery it is not necessary to have in mind an intent to defraud a particular person if the consequences of the act would necessarily or might possibly be to defraud any person, But there must at all events be a possibility of some person bemg defrauded by the forgery. There was no possibility of Dun & Co. being defrauded by the alleged forgery in this case.

That it was necessary that this intent to defraud in reference to -the matter of indorsement should be present seems to have been recognized by the court when it instructed the jury at the end of its charge that if they found that Wiman believed that under the rules of law applicable to commercial paper he had legal authority to use the name of a person as payee to whom it was not intended that the check should be paid and to indorse such name on the back of the check, such indorsement is not forgery.

The court, however, during the progress of the summing up of the counsel for the defendant, declined to permit him to discuss the facts and circumstances upon which this proposition is predicated. The court interrupted the counsel for the defendant in his summing up and the counsel stated that his summing up related to this proposition, which he would request the court to charge as follows: I shall ask your honor to charge the jury that if the defendant believed that under the rules of commercial law he had legal authority to make this check and indorse it as he did, the crime is not forgery.”

The oourt answered: “ That I shall refuse.”

The counsel for the defendant excepted and then proceeded with his summing up, abandoning his argument upon that point. As has been seen, the court, at the close of the charge, presented the proposition to the jury, and no opportunity was offered for the counsel to address the jury in respect to the point in the discussion of which he was interrupted. Nor was there any. retraction by the judge of what ■ he had said during the summing up. There were thus two inconsistent propositions before the jury, and it is impossible to determine by what rule they were guided in the consideration of the case.

The court also seems to have entirely taken from the jury the question of criminal intent. The defendant requested the court to charge as follows: “ Unless the jury find that the acts charged were committed with criminal intent the defendant is entitled to an acquittal.”

In answer to this request the court said to the jury : “ I charge you unless the act was committed with intent to defraud, as I explained it to you, the defendant is entitled to an acquittal; I refuse to charge as requested.”

During the charge the court charged the jury in respect to the meaning of the word “ defraud ” as follows: “ Defraud has been defined as follows : ‘ To deprive of right either by obtaining some-tiling by deception or artifice, or by taking something wrongfully without the knowledge or consent of the owner,’ and I think that is as good a definition of £ defraud ’ as I know of.”

It will be at once seen that this definition is fatally defective so far as it relates to criminal proceedings, as the last branch of the proposition takes no cognizance whatever of the question of intent. The jury were by this definition in effect charged that if Wiman wrongfully took without the knowledge or consent of Dun the money in question, although he may have believed that he had the right to take the money, he was guilty of the intent to defraud required by the statute, thus, as has been intimated, eliminating the one element which it has been repeatedly held must be present, namely, the criminal intent.

It is undoubtedly true that in order to constitute a crime, the doing of the act prohibited with the intent to do the act is sufficient, although the party may not be aware of the fact that he is transgressing the law. But there is no possibility of an act of fraud being committed without a fraudulent intent. The word “ fraud ” imports guilty knowledge. A man supposing that he has a right to property and taking it without the knowledge or consent of the owner, would, under this definition, be held to be defrauding the owner if it should subsequently turn out that his supposed right was without foundation. In order that there should be no mistake upon this point, the court subsequent to the giving of this definition expressly charged the jury that the question for them to determine was : Did he write the name of Bullinger on the back of that check with intent to get this money from the firm that he had no right to take and apply it to liis own purposes?” No question of criminal intent was submitted, the only question of intent submitted being an intent to do an act which was not by any means of necessity criminal. Even if Wiman believed he had the right to take this money because of the course of previous dealings, the jury were instructed that if he took it intending to take it, he was guilty of an intent to defraud. An intent to defraud would seem to involve some moral turpitude, but under this instruction a mistake as to property rights is, of itself, sufficient to justify a finding of fraud. This is carrying the definition of “ fraud ” much further than has yet been done. We think that in thus instructing the jury the question of criminal intent was entirely eliminated, and under these circumstances the refusal of the request to charge was error.

There would seem also to have been error either in the admission or the exclusion of testimony. The prosecution was permitted to prove the overdrafts of "Wiman and his want of funds in the bank to meet the same upon the theory that this evidence was competent upon the question of the intent to defraud Dun and his associates by the drawing of the check in question. But when the defendant attempted to establish his pecuniary condition by showing the value of the property which he owned, that evidence was excluded. And it seems to us, certainly, that if it was competent upon the part of the prosecution to prove the indebtedness of Wiman as bearing on the question of his intent, he had the right to prove the means which he had to meet such indebtedness, in order that he might rebut any inference which might be drawn from such indebtedness.

It is not intended to countenance for a moment by this suggestion the theory that if Wiman was guilty of a forgery in the obtaining of this money, the fact that he intended, or hoped, or expected to return it in any way qualified the nature of his act. It would certainly be an anomaly in the law that an intent to make reparation and the ability to do so would make acts innocent which otherwise would be criminal. The taking of the money of another knowingly wrongfully is to defraud, and the act is not qualified by the intent to return. The thief cannot be heard to say : “ It is true I stole the money to-day, but I intended to return it to-morrow, and, therefore, I am innocent.”

Nevertheless, as already stated, if it was competent for the prosecution for the purpose of showing intent to prove partially the financial condition of Wiman, he had a right’ to prove the balance.

The judgment should be reversed and anew trial ordered.

O’Brien, J. :

It is conceded that the defendant had the right to sign checks in the name of R. G. Dun & Co. Whether such right was conferred upon him by express or implied authority, or by virtue of his status as a partner in the firm, seems to me immaterial so far as it affects the crime with which the defendant stands charged. He was not called upon to answer for having made the check, but for having, with intent to defraud, indorsed the name of Bullinger upon the back thereof. If, therefore, he had made the check to Bullinger’s order, having originally intended to deliver it to him, and, subsequently, having changed his mind, he indorsed the check with intent to defraud, he would be as guilty .of the crime of forgery as though he had made the check with the original intention of having it payable to the order of Bullinger, without intending to deliver it to him, but to indorse the latter’s name thereon, and thus fraudulently obtain the money represented by the check. In other words, by the act of indorsing the name of Bullinger with criminal intent he would be guilty of forgery, whether he had or had not been guilty of any independent or separate fraud in signing the check. The evidence shows beyond dispute that without authority he indorsed the name of Bullinger thereon; and whether he was guilty or not of an independent fraud in signing the check could not lessen his guilt, if established, of having with intent to defraud, forged the name of Bullinger. The intent with which the act was done was an essential ingredient of the crime, and being a question of fact and not of law it was necessary that under proper instnictions it should be submitted to the jury, to whom the solution of the question of fact belonged. It was important to the rights of the defendant that this question should be clearly presented to the jury, and where, as in the case at bar, this was not done, it cannot be regarded as a harmless error.

I concur, therefore, in the result reached by the presiding justice, that the judgment of conviction should be reversed, and the defendant have a new trial.

Follett, J.

(dissenting):

February 21, 1894, the defendant was charged by an indictment with having committed, February 6, 1893, the crime of forgery in the second degree — by the first count with having feloniously forged, with intent to defraud, the signature of the payee, and by the second count with having feloniously uttered, with intent to defraud, the forged signature of the payee of the check, of which the following is a copy:

“No. 57Y83. The Mercantile Agency,
“ E. G. Dun & Co.
“New York, Feby. 6, 1893.
“ $5,000 Chemical National Bank,
“ Pay to the order of E. ~W. Bullinger,
“ Five Thousand................................Dollars.
« $5,000. E. G. DUN & CO.”

In June, 1894, a trial was had which resulted in a verdict of guilty, and June 20,1894, the defendant was sentenced to imprisonment in a State prison for five years and six months. The following are the provisions of the Penal Code under which it is urged that the defendant’s act was a crime :

“ Section 511. A person is guilty of forgery in the second degree who, with intent to defraud ; * * *-
“ 2. Forges * * * an instrument or writing, being or purporting to be the act of another, by which a pecuniary demand or obligation is or purports to be or to have been created, increased, discharged, or diminished, or in any manner affected, or by which any rights or property whatever are or purport to be or to have been created, transferred, conveyed, discharged, increased, or diminished, or in any manner affected, the punishment for forging, altering, or counterfeiting, which is not hereinbefore prescribed, by which false making, forging, altering, or counterfeiting, any person may be bound, affected, or in anyway injured in his person or property.”
“ Section 521. A person who, knowing the same to be forged or altered, and with intent to defraud, utters, offers, disposes of, or puts off as true, or has in his possession, with intent so to utter, offer, dispose of, or put off, either, * * *
“ 3. A forged will, deed, certificate, indorsement, record, instrument or writing, or other thing, the false making, forging, or offering of which is punishable as forgery;
“ Is guilty of forgery in the same degree as if he had forged the same.”

It was proved by undisputed evidence that the check was filled out by the direction of the'defendant, that he signed it on the day of its date, and on the same day indorsed thereon, without authority, the name of the payee and deposited the check so indorsed with the Central National Bank, which, February 6, 1893, gave him credit therefor, and that February 7, 1893, the check was paid to said bank by the drawee and charged to the account of R. G. Dun & Co. The defendant ivas sworn on the trial and he testified that Edward W. Bullinger, tbe payee, gave him no permission to indorse his name on that or on any other check, and that he did not notify Mr. Bullinger that he had made the indorsement. He further testified that Mr. Bullinger was a creditor of the firm of R. G. Dun & Co. for more than $15,000, and that he drew and indorsed the check in that form to transfer the funds of R. G. Dun & Co. to his own account and conceal the transaction. On Friday, February 17,1893, the existence of the check was discovered by Robert D. Douglass, one of the members of R. G. Dun & Co., and on the next day the fact that the discovery had been made became known to the defendant, who, on Monday, February twentieth, wrote and mailed this letter, which was received by Robert G. Dun, to whom it was addressed:

“ 314 Broadway, New York,
February 20, 1893.
“ My Dear Mr. Dun :
“ I have had occasion to write you more than once in terms of great humiliation, but never before under such circumstances as now, in which I have a confession to make to you. It is, that improperly and fraudulently I have signed the ncmne of Mr. E. W. Bullinger on the bade of two checks of your firm made to his order. I will not urge that this was done without any evil intent or that he would not have signed them himself had I asked him, or that I had any intention of defrauding you or him. Simply and frankly I must say that I committed this act without authority and most imprudently, and can ask no excuse nor palliation of the offense except such as in your abundant charity and goodness of heart you may in mercy extend to me.
“ For the sake of my dear wife and children, and for the sake of the long service rendered to you, I pray God your heart may still be softened toward me and that I may not be made to suffer the penalty of my offense.
(Signed) Respectfully,
“ERASTIJS WIMAN.”

January 7, 1893, the defendant had drawn a check to the order of E. ~W. Bullinger for $5,000 on the Chemical Bank and signed it R. Gf. Dun & Co., and had indorsed thereon the name of E. "W. Bullinger, and applied the avails to his own use. The foregoing letter refers to this check and to the one set out in the indictment.

• Before discussing the particular questions raised on this appeal it will be well to state the rules of law relating' to the crime of which the defendant was convicted. By the common law forgery was classed with offenses known as cheats, and if an instrument or document was falsely made, altered or uttered with intent to defraud, though no one was actually cheated or defrauded, the crime of forgery was committed. (1 Bisli. Or. L. [6th ed.] § 5J2; 2 id. §§ 521, 597; 2 East P. C. 854; Stepli. Dig. Or. L., arts. 355, 356; 3 Coke Inst. 168.) The ingredients of the offense are the same under the Penal Code of this State.

“ § 509. A person is guilty of forgery in the first degree who, with intent to deframd, forges ” certain specified documents.
“ § 511. A person is guilty of forgery in the second degree who, with i/ntent to defraud, forges ” certain specified instruments.

The ingredients of the offense are (1) counterfeiting certain specified instruments (2) with intent to defraud. That the defendant drew the check, and, without the authority of Bullinger, indorsed his name thereon, is confessed. This was counterfeiting. The only other ingredient necessary to be established to prove the commission of the crime of forgery was to show that the signature was made with intent to defraud. The statute does not require that the counterfeiting be done with intent to defraud a particular person, but if it was done with the intent to defraud any one it is sufficient. Neither the common law nor the statute requires that the counterfeiting be done with intent to perpetrate a criminal fraud for the commission of which the perpetrator could be indicted, but if the fraud intended be a commercial one by which another is defrauded or intended to be defrauded by imposing an apparent liability or by depriving him of some right or property, it is sufficient. An intent to commit an independent fraud is not in all cases a necessary ingredient of the crime of forgery. In case A has a credit with a solvent bank for $1,000 and draws his check thereon for $100 to the order of B, indorses his name thereon knowing that lie lias no authority, and negotiates the cheek at another bank, he is guilty of forgery. It is a fraud on 13 to assume to impose a possible liability on him, and it is also a fraud on the bank taking the check. In such a case it is not necessary to show that A intended to defraud B, the hank taking the check, or any subsequent holder, of the amount of the check, and it would be no defense to show that A believed the check would be paid or to show that it was paid. The drawer and drawee might both fail and B be put to his defense. The act supposed is a fraud in and of itself. But if A, instead of negotiating the check, had personally presented it to the bank on which it was drawn and received the money thereon, it would be necessary to show that he intended to commit some independent ulterior fraud. If it could be shown that he made, indorsed and procured the check to be paid to himself, on which B’s signature was counterfeited, with intent to use it as evidence of the payment of his debt of $100 to B, the act would be forgery within section 521 of the Penal Code.

The question whether the defendant made, indorsed and negotiated this check, with intent to defraud E. "W. Bullinger or the Central National Bank, was not submitted to the jury, but was expressly withdrawn by the learned judge —• we think erroneously — from their consideration.

The case was submitted to the jury on the theory that it was necessary to show that the defendant made the check and counterfeited the indorsement of E. ~W. Bullinger, with intent to defraud B. G. Dun & Co., on which theory this judgment must stand or fall. This brings us to the question whether any substantial error was committed in submitting this issue, or in the reception or rejection of evidence bearing on it.

It was urged on the trial, and it is urged in this court, that the defendant was a partner of B. G. Dun & Co., and, being such, that his secret withdrawal of the partnership funds fibr his individual use was neither a fraud nor a crime. "We think the issues, whether under the contract the defendant was a partner, or whether he believed himself to be one, were not material. Partners occupy fiduciary relations towards each other, and if one partner misappi-o-' priates the funds or property of the firm he commits a fraud on his co-partners. In case one member of a firm secretly withdraws the firm assets and converts them to his own use without the consent of his partners he commits a commercial fraud. It certainly will not be contended that it is impossible for one partner to defraud his co-partners or the firm of which he is a member. The evidence given by the defendant conclusively shows that he had no right to use the partnership funds for his own purposes, and that he knew it. It was not shown that the other members of R. G. Dun & Co. had assented to such use, but, on the contrary, frequent and sharp letters of reproval were written the defendant criticising him for having so used the funds and forbidding such use thereafter, and the defendant frequently promised, in writing, that he never would so offend again. That the defendant did apply the $5,000 received by means of this check to his individual use and attempted to conceal the fact is not denied. To do this was a fraud, and, if accomplished by means of forgery, it was a crime. It is no defense for the defendant to prove that it was within his power to have accomplished the same end by means which were not criminal. The answer is, that he chose not lawful but unlawful means to accomplish his purpose and-such as are condemned as a crime. By indorsing the name of E. W. Bullinger upon the check and depositing it to his credit in ■the Central National Bank — not the bank upon which it was drawn — he assumed to create a liaoility by counterfeiting Bullinger’s signature, which was a crime. As before stated, it was a crime in and of itself, and it was also a crime within the issue submitted to the jury, that issue being found in favor of the People.

The question whether the defendant drew this check and counterfeited the signature of E. "W". Bullinger with intent to defraud R. G. Dun & Co. was submitted to the jury and found against the defendant upon evidence which, we think, was entirely sufficient to ■sustain the verdict. The defendant’s letter of February 20, 1893, was sufficient, in connection with the undisputed facts and circumstances, to sustain the verdict that the act was done with intent to defraud the firm. No error was committed by the refusal of the court to advise, pursuant to section 410 of the Code of Criminal Procedure, the jury to acquit the defendant.

In this connection the court was asked to charge : “ III. Unless the jury find that the acts charged were committed with criminal intent the defendant is entitled to an acquittal.” The court refused to charge in the language of the request, and repeated: “ I charge yon unless tlie act was committed with intent to defraud, as I explained it to you, the defendant is entitled to an acquittal. I refuse to charge as requested.” To this the defendant’s counsel excepted.

The court in its charge had previously defined the word defraud ” as follows: “ Defraud has been defined as follows: £ To deprive of right, either by obtaining something by deception or artifice, or by taking something wrongfully without the knowledge or consent of the owner,’ and I think that is as good a definition of £ defraud ’ as I know of.. The intent must be to deprive a person of a right, either by obtaining something by deception or artifice, or by taking something wrongfully without the knowledge or consent of the owner.”

This definition was not excepted to, and is- sufficiently full and accurate for the purposes of the issue submitted to the jury.

Under the sections of the Co.de before quoted, if the act was committed by the defendant with intent to defraud, it follows that it was done with a criminal intent, for the statute declares it to be a criminal forgery. The terms with intent to defraud ” and “ with a criminal intent” are under this statute synonymous. It has been several times said by the Court of Appeals that an act in order to constitute a crime must be done with a criminal intent. Put it has never been held that in case the court correctly instructed the jury as to the ingredients making up a particular crime, and that they must find that all of them existed before the defendant could be convicted, that in addition the court must charge that the act was committed with a criminal intent. The term is used for brevity. If, on the trial of an indictment for murder in the first degree, the court should charge that before the defendant could be convicted the jury must find that he killed the decedent from a deliberate and premeditated design to effectjiis death, it would not be error to refuse a request preferred after the charge had been delivered that the jury must find that the act was committed with a criminal intent. When, as in the case at bar, the jury is fully and correctly -instructed as to all of the ingredients of the crime under consideration, and are charged that before they can convict they must find that all of the ingredients of the crime existed, it is quite sufficient.

Persons violating the criminal law of the State with the unlawful intent prescribed by tire statute are guilty of a crime, even though they are ignorant that the act is criminal.

No error was committed in refusing to charge the twenty-sixth request: “ If the jury believe that at the time Wiman wrote JBullinger’s name on the back of the check in question he intended to use his name merely as a fictitious payee, such writing of the name of the payee on the back of the check is not forgery.” E. W. Bullinger was not a fictitious payee, but a real person and a creditor of R. G. Dun & Co., and the defendant directed the cashier to draw this check, stating that Bullinger wished a check on account, and the check was charged to him. This was testified to by the cashier and not denied by the defendant. There was no evidence that the defendant intended to use the name of Bullinger as a fictitious payee, but the uncontradicted evidence was that he drew it to his order so as to cause it to be believed that it was applied as a payment to him.

The issue was sought to be raised, notwithstanding the defendant’s letters, that he believed he was authorized by law not only to draw the check for the purpose of appropriating the funds of R. G. Dun & Co. to his own use, but was also authorized to indorse the name of E. W. Bullinger on the check. The letters written by the defendant conclusively show that he did not believe that he had the right by means of checks to divert the funds of R. G. Dun & Co. to his individual use. The defendant testified that he was sixty years of age, and since his youth had been constantly engaged in various large business transactions* was familiar with commercial matters and the use of checks. The issue was not tendered that the defendant was insane, nor that he acted under an insane delusion in making and indorsing the check set out in the indictment. The testimony of a defendant that he believed that he had the right to do an act which is a crime is entitled to no weight, unless from the nature of the act and the circumstances surrounding it a sane person might have so believed. The act of the defendant was a single transaction, begun by directing the check to be drawn and terminated by depositing it in the Central National Bank. It is true that the transaction was made up of several distinct steps. So is every crime; but in the case at bar the steps were so connected that they constituted but a single act or transaction. It will not do to separate the several acts by which a crime is committed and hold that every one must of itself, disconnected from the others, have been unlawful. It is true that if the defendant had drawn this check to bearer, and so fraudulently acquired $5,000, he would not have been guilty of the crime of forgery. This he did not do, but instead made the check payable to the order of E. "W. Bullinger, and without authority indorsed his name thereon with intent to defraud and so brought himself within the terms of the statute.

Upon the request of the learned counsel for the defendant the ■court charged:

“ XXXI. If the jury shall find that Wirnan believed that under the rules of law applicable to commercial paper he had legal authority to use the name of a person as payee, to whom it was not intended that the check should be paid, and to indorse such name on the back of the check, such indorsement is not forgery.”

During the summing up of the counsel for the defendant he ■attempted to discuss the testimony which he asserted bore upon this proposition, but was interrupted by the court. Thereupon, the ■counsel said: “ I shall ask your honor to charge the jury that if the defendant believed that, under the rules of commercial law, he had legal authority to make this check and indorse it as he did, the crime is not forgery.

“ The Court — That, I shall refuse.
“ Mr. Tracy — And your honor will give me an exception now.
“The Court' — ’Certainly; I will give it to you now.”

It is now insisted that the ruling made during the summing up and the one made by the thirty-first request were inconsistent, and that if an error was committed in the first ruling the defendant was presumably harmed by the court’s refusal to permit his counsel to discuss the question of fact bearing upon the proposition. Courts do not sit for the purpose of trying or reviewing abstract questions of law; and if they assume to determine such questions, however much they may err, it is not a reason for reversing their judgments. We think that the evidence did not present this proposition. The defendant testified that he was .sixty years of age, and since his youth had been continually engaged in various and large business transactions involving the use of bank accounts and of checks. There was no testimony in the case that would have warranted the jury in finding that he believed that, for the purpose of concealing his overdraft from B. G. Dun & Co., he had legal authority to counterfeit the name of E. W. Bullinger. As before stated, it was not alleged that the defendant was insane or acted under an insane delusion, and in the absence 'of such an issue the jury had no right to find that the defendant believed what a sane man would not have believed.

It is also urged that the court erred in excluding evidence as to the value of the property possessed by "Wiman in February, 1893. He was permitted to describe as minutely as his counsel wished the property possessed by him, and to give his own estimate of its value. The People did not controvert the testimony of Wiman as to the quantity or value of his property. Subsequently, a witness was called by the defendant by whom it was sought to prove the value of certain property owned by the defendant. The court ruled that this evidence was entirely immaterial, and an exception was taken. No issue was raised upon this question. The defendant’s evidence stood entirely uncontradicted, nor was there any subsequent effort made to contradict it by 'the People.

For the purpose of showing that the check of February 6, 1893, was signed, indorsed and uttered with intent to defraud P. G. Dun & Co., it was competent to show that the defendant had signed, indorsed and uttered other checks of P. Gr. Dun & Co., all forming a part of a system designed to effect the same end — appropriating the funds of P. G. Dun & Co. for the benefit of the defendant. Such evidence is quite different from that condemned in People v. Corbin (56 N. Y. 363). In that case the defendant was tried for forging -the indorsement of Yan Amburgh on a promissory note, and the defense was (1) authority to write the name on that particular note, and (2) a belief that defendant had such authority. The People were permitted to show that defendant confessed that he forged the name of Ganoung on other promissory notes, which was held to be error. Evidence of other and disconnected forgeries was. not relevant to the issue whether defendant was expressly authorized to indorse the name of Yan Amburgh, or to the issue whether he believed that he was so authorized.

The judgment should be affirmed.

Judgment reversed, new trial ordered.


source: Caselaw Access Project

author: Yan Brunt, P. J. :

license: Public Domain

text:
    In the Matter of the Application of Adam A. Cross for a Writ of Certiorari to James J. Martin and Others, as Police Commissioners of the City of New York, Constituting the Board of Police of the Police Department of the City of New York.

      Review of a conviction by the police commissioners of New York —judicial notice of aaute memory — corroboration of immoral witnesses’ evidence — cross-examination as to their reformation — -conviction of an infamous crime —not sustained by evidence of neglect of duty.

    In determining the question as to whether a conviction by the police commissioners of the city of New York should be sustained or not, entirely correct and accurate rulings in regard to questions of evidence will not be required; the appellate court should determine from the record whether it discloses reasonable grounds for the conclusion arrived at, and one which has not been the result of the erroneous rulings in respect to the admission or exclusion of evidence.
    Courts will take judicial notice of the fact that persons engaged in business, who cannot read and write, have their faculty of memory more acutely educated, for the reason that they are compelled to depend upon their memory and cannot rely upon written memoranda.
    Much of the evidence upon which reliance must be placed, if crime is to be punished, comes from polluted sources. Crime is not ordinarily committed with respectable and reputable witnesses looking on who can testify to facts, but it has its birth largely in secret and amongst the disreputable, and the fact of its commission must be established, if at all, by proof taken from this class of the community. Such fact, while it necessitates a closer examination of the evidence and some corroboration of the witnesses, either from the nature of their testimony given or by the testimony of other witnesses, presents no reason for allowing crime to go unpunished.
    If the story of a witness who is a disreputable person is of such a character and so consistent in its details and harmonizes so well with the surrounding circumstances as to carry conviction, even where there is no corroborating testimony, it may afford satisfactory proof of guilt, but where such evidence is not consistent, abounds in contradictions and shows a disregard of the truth, it cannot form the basis of a judgment establishing crime.
    Where, upon the trial of a member of the police force, before the police commissioners of the city of New York, witnesses on the part of the prosecution testified voluntarily to their disgrace, the accused member of such police force has the right to test the truth of their claim of reformation, and if he is not permitted such right, in order that it may be said that he has suffered no harm because of the refusal to allow him such right, the evidence of his guilt must be of a very satisfactory character.
    If, 'upon the review of the determination of the police commissioners of the city of New York, dismissing a member of the police force of such city, it seems to be probable that the charges for which the member of such force was dismissed related to the receiving of certain alleged bribes, and were not sustained by the evidence, the mere fact that a finding of neglect of duty on the part of such officer might be sustained upon the evidence will not prevent a reversal of the judgment of the police commissioners convicting the officer of an infamous crime. •
    Certiorari issued out of the Supreme Court and attested on the 6th day of September, 1894, directed to James J. Martin, John C. Sheehan, Charles H. Murray and Michael Iierwin, as police commissioners of the city of New York, constituting the board of police of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their acts, proceedings and documents in relation to the removal or dismissal of the relator from the police department of the city of New York.

      Elihu Root and Charles A. Hess, for the relator.

      Francis L. Wellman, for the respondent.
   Yan Brunt, P. J. :

On the 13th day of August, 1894, certain charges, forty-six in number, were presented to the respondents against the relator, who was then a captain of the police force of the city of New York. Notice of the preference of said charges and of the time and place where the same would be publicly examined were served upon the relator, and thereafter, on the 15th day of August, 1894, and subsequent days, a trial was had, and on the 31st day of August it was, by the said police commissioners, “ Resolved, declared, ordered and adjudged that the said charges are true, and that the said Adam A. Cross be, and he is hereby, dismissed from the police force of the police department of the city of New York.”

It appears upon an inspection of the record of the trial that upon charges 13 to 23 inclusive, and 25 to 35 inclusive, no evidence was offered, and it would seem that the police commissioners had dismissed such charges; but, in their judgment, they find the same to be true, notwithstanding such dismissal. It might be a subject of interesting inquiry, perhaps, to know whether in the punishment of the relator the whole of the charges had not been considered instead of those only in respect to which proof had been offered.

The first twelve of the charges -relate to the accepting of money for permitting to be kept open a disorderly house at No. 144 Chrystie street, kept by one Katie Schubert.

The thirteenth charge was founded upon alleged neglect of duty in permitting said house to be kept open.

The twenty-fourth charge was founded upon alleged neglect of duty in allowing a similar house to be kept open at No. 28 Bayard -street.

The thirty-sixth charge was founded on an alleged neglect of duty in allowing a similar house to be kept open at No. 6 Delancey street.

The thirty-seventh to the forty-fourth charges wem founded upon the alleged taking of motley for permitting a similar house to be kept open at No. 24 Bayard street by one Rhoda Sanford.

The forty-fifth charge was founded upon alleged neglect of duty in permitting said house, No. 24 Bayard street, to be kept open.

And the forty-sixth charge was founded upon an allegation of a complaint having been made by one Hendrickson to the relator of money being taken by a patrolman of the police force named Kelly to influence him in the performance of his duty, and a failure and omission upon the part of the relator to report said dereliction of -duty upon the part of said patrolman to the inspector of his district, and a failure or. omission to take any steps or measures to investigate said dereliction of duty upon the part of the patrolman -or to punish him therefor.

It appears from the evidence in the case that some time in April, 1892, the relator became a captain in command of the eleventh precinct in the city of New York, and remained in such command until some time in February, 1893, a period of about nine months; -and it is claimed to have been established by the proof produced upon the trial of these charges that during said time he received as -a bribe from said Katie Schubert the sum $500 and $50 a month for each of the months while he was in command of such precinct he, in consideration thereof, agreeing to permit said Katie Schubert to carry on her business of maintaining a house of prostitution.

It is also claimed to have been established by the evidence that some time in October, 1892, the said Rhoda Sanford paid the relator $500 and $50 a month thereafter in order that she might be permitted to carry on her business, which was of a similar character, at the premises No. 24 Bayard street.

And it is also claimed that the evidence establishes the charge in respect to dereliction of duty in reference to permitting these houses to exist, and also in respect to the complaint which was made against the patrolman Kelly.

There is no evidence that the woman Sanford had anything to do with the relator Cross. According to her testimony, all her business relations in reference to protection from police interference was had with one Smith, who was the wardman in the precinct. The evidence connecting Smith with the relator is that of Katie Schubert, the keeper of the house of prostitution at No. 144 Chrystie street; and, consequently, if her evidence is of such a character that conviction cannot be predicated upon it, there is no evidence whatever against the relator in respect to the premises No. 24 Bayard street, except that of a general character in reference to the business being permitted to be carried on.

The witnesses to the bribery in reference to No. 144 Chrystie street were the proprietress of the establishment, claimed by the prosecution to be a very respectable married woman, and one Alice Ryder, another respectable married woman, who, for a jaeriod of eighteen months, was an inmate of the premises No. 144 Chrystie street and furnished part of the material with which business in that house was carried on. As has already been suggested, the claim was made before the police commissioners that whatever idiosyncrasies these ladies had indulged in for the period under consideration, they had since that time led creditable and respectable lives, both the ladies in question having married and settled dovm. "When the counsel for the defense endeavored to get some information from these witnesses in regard to their present surroundings, their present location, their name and history, he was prevented from obtaining any information whatever upon this subject; and, hence, it was impossible for him to make any investigation in respect to the variety of these pretensions to virtue upon the part of these women who acknowledged that they had been engaged in this immoral business. Their evidence was placed before the tribunal in which the relator was being tried, as that of credible and respectable witnesses; the board was asked to believe sucli evidence because they were creditable and respectable, and the relator was given no opportunity as already suggested to identify the witnesses so as to be able to ascertain to what extent these pretensions were true. It is perfectly ‘clear that in a trial before a civil court no judgment could possibly stand which was founded upon evidence of witnesses in respect to whose identity such rulings had been made.

It is, however, to be considered that in proceedings before the board of police entirely strict and accurate rulings in regard to questions of evidence are not always to be expected, and in determining the question as to whether a conviction should be sustained or not, the record generally should be examined and the appellate court should determine upon such examination whether it discloses reasonable grounds for the conclusion arrived at and one which has not been the result of the erroneous rulings in respect to the admission or exclusion of evidence. Therefore, if -upon an examination of this record, notwithstanding this extraordinary position in regard to the protection of witnesses from the ordinary investigation to which such witnesses are subjected in order that their credibility may be properly weighed, we should be satisfied that there was sufficient evidence to justify the conclusion at which the board arrived, we should not disturb the same.

"When we come to examine the evidence of Katie Schubert, the principal witness for the prosecution, we are confronted with the fact that there is hardly a circumstance alleged to have surrounded the taking of this money in respect to which this witness Schubert has not given two diametrically opposite versions, or has not been contradicted pointedly by incontrovertible evidence.

It would be impossible within the limits of an ordinary opinion to go through the testimony of this witness and refer to the numberless contradictions which the record discloses therein. "We will, therefore, advert to only a few of the more prominent examples, which will be sufficient, it seems to us, to show that the witness was utterly unreliable and unworthy of belief.

Upon hér examination when first examined on the part of the prosecution the witness testified that she was a respectable married woman ; that she lived at one time on Chrystie street where she had lady boarders, and the house was kept as a house of prostitution; and that while she was in that business Captain Cross was one of the captains of the precinct, and was there for about six months, and that it was in the year 1892, she didn’t remember whether it was the latter part or the first part, but it was after McLaughlin left and before Devery came; that she gave' Captain Cross some money in the spring, and that Cross called on her with his wardman Smith.

The witness was then asked the question: “ Q. How often did you see Captain Cross ? ” Her answer was: “ He was only once at my house. Q. How often did you see him after that, at any place in the street or where ? A. I have never seen him to speak to; I have often seen him pass in the street, but not to speak to.” The witness then pointed out Captain Cross and was asked : “ Q. This first time that you saw him, was it in your house? A. Yes, sir. Q. Smith was with him? A. Yes, sir. Q. Evening or daytime? A. Evening. Q. State the conversations that you had? A. He just came in, and officer Smith introduced him as our new captain and that I had to give up $500. * * * Q. Just state what was said ? * * * A. There wasn’t much of a conversation. Officer Smith just introduced the captain and told me: £ This is the captain and I will be his man, and you have got to give up $500, and then I will come every month after the fifty.’ Q. Did he say if you did not do that what would take place ? A. Then I. didn’t have the money and we set a date, and I do not know how many days after it was that I got the money, and Captain Cross called for it again, and as I handed him the money he gave me a very sarcastic laugh and asked me did I get small bills on purpose and couldn’t I get it in big bills, that it make such a big roll. I said that I was glad enough to get that; I had to borrow it.”

Thus within five minutes the witness contradicted herself in regard to her seeing the relator’, swearing first that he was only once at her house, and immediately thereafter swearing to two interviews in her house.

In another part of her testimony the witness testified as follows: ££ Q. Then Captain Cross was in your place more than once ? A. No; he was only there when he took the money. Q. Only there when he took the money? A. That is all. Q. Was that the occasion when this officer introduced him as you have testified ? A. No; he introduced him about a week before, because I didn’t have the money at the same time as he introduced him. Q. Where did he introduce him ? A. In my front parlor. Q. Then Captain Cross was in your place twice? A. Well, twice. Q. Once before when you paid him the money ? A. Once when he was introduced, and next time he got the money. Q. What time of" day was it? A. Half-past eig'ht in the evening.”

It is to be observed that she testified that this money was paid in the spring and that the captain had been in the precinct but a few days. She further testified that she paid Smith fifty dollars a month thereafter.

The witness was then asked“ Q. Hid Captain Cross raid you at all? A. Yes, sir, once. Q. When? A. Once when he first came to the precinct. Q. Before you had given him any money ? A. Yes, sir. Q. How long before? A. It was about three weeks. Q. About three weeks? A. About three weeks before I gave him the money. Q. And were you taken to the station house. A. Taken to the station house. Q. Was he then captain? A. Yes. Q. And what was done with you. Were you fined? A. Yes, sir. Q. How much ? A. I was fined fifty dollars. Q. How soon after you paid your fine did you see the captain ? A. I have seen him in a few days after. Q. A few days after you paid'your fine, then the captain and Smith called. Is that it? A. Yes. Q. Did you have any talk with him about the raid at all? A. No, I didn’t ask anything ; didn’t have any talk about it.”

There is no dispute about the fact that on the thirtieth of May, about five weeks after coming to the precinct, Captain Cross did raid the premises of the witness.

As an instance of the manner in which this witness testified it may be proper to call attention to the following bit of testimony: “ Q. When did you first move to 144 Chrystie street ? A. 1892. Q. Wliat time in 1892 ? A. I moved there in July. Q. In July, 1892? A. Yes. Q. You moved to 144 Chrystie street. A. Well, I had moved there before that. Q. Answer my question. A. I had moved before. I had been in the house longer than that, but I didn’t keep it in that style; didn’t keep no ladies. Q. You moved to the house 144 Chrystie street in July, 1892. That is true isn’t it ? A. Yes, sir. Q. And from that time on yon carried on business as keeper of a house of prostitution ? A. Y es. Q. Until when ? A. Until six months ago. Q. Until six months ago? A. Tes. Q. That was about February, 1894? A. Yes. Q. Then, did you leave 144 Chrystie street? A. Yes, sir. Q. Where did you go to? A. Moved away. Q. Where to ? A. I refuse to tell.”

Subsequently, the witness swore that she lived at 144 Chrystie street in January, 1889, and lived there continuously until she left there about six months before, a ¡xexiod of four and a half or five years; that it was first kept as a gentlemen’s boarding house and then was turned into a ladies’ boarding house about two and a half years before the trial. But, although the witness was keeping a gentlemen’s boarding house in 1889, according to her testimony, it appears that her place was raided by the Society for the Prevention of Oi’uelty to Children, and the witness ixxdicted.

In another place in her testimony the witness says that this raid took place about two and a half years before her examination, when she fix’st turned her house iixto a house of prostitution. Another instance of the unreliable character of the evidence of this witness is shown by her continual contradiction as to whether she paid this money to the captaixi befox’e or after she was raided by him.

The witness having testified that the money was paid after she was x’aided and after her trial, the raid occux’X’ixig on the 30th of May, 1892, and the trial on the twenty-first of Juxxe, she testified in one place that ¿he money was paid in May, 1892, and in several other places that the payment was made before she was pulled.

And it would seem in connection with this matter that the witness was pex-fectly willing to swear either way upon this subject, because we find this testimony near the close of her exaxnination:

“ By the counsel for the prosecution: Q. Oaptaixx Cross, I understood you to say, x-aided you ? A. Yes. Q. And then sent for you to come to him, and told you if you paid, it would be all right ? A. Yes. Q. Now, how long after he had x’aided you, or pulled you, was it that he sent for yoxx and told you if you paid your money it would be all right ? A. I doxx’t exactly remembex’, but it was after my trial was over. Q. Then, after your trial was over, it was that the captain sent for you and told you if you paid it would be all right? A. Yes. Q. ITow soon after he came ixito the precinct did he raid you ? A. I think he was only there about two or three weeks; 'I don’t exactly remember, but that is as good as I can remember. Q. And two or three weeks after he raided you ? A. Tes. Q. And after your trial, he sent for you and told you if you paid your money it would be all right? A. Tes. Q. And you fixed it up by payment, and it was all right? A. Tes.”

“ Re-cross-examination by counsel for the defendant: Q. Didn’t you testify, in answer to my question, that you paid this $500 before Captain Cross raided you ? Do you understand me ? A. I understand you. Q. Please answer the question? A. I dbn’t exactly remember if I gave him the, $500 before or after I was raided; I think before I was raided. Q. Didn’t you testify on the cross-examination, in answer to my question, that you paid Captain Cross $500 at your house before he raided you ? A. And then I was raided; then he sent for me and told me to keep a little quiet until my trial was over, and when my trial was over, come to see him and he would fix me all right. Q. But you had paid Captain Cross the money before you were raided by him? A. Tes. Q. There is no mistake, about that ? A. No.”

It seems t'o be thus apparent that, within a very few moments, the witness flatly contradicted herself in respect to the time of the payment of this money, and the circumstances attending the payment.

It was urged upon the part of the counsel for the prosecution that the witness might very well make a mistake in reference to the time at which this money was paid to the police captain, in that there were three captains there within thirteen or fourteen months; and she claimed to have paid $1,500 to those three captains — to McLaughiin, $500; to Cross, $500, and then to Devery $500 ; and in speaking of the payment of the $500 she might have referred to the $500 first paid to McLaughlin as paid before'the raid.

But the difficulty with this explanation is that it hardly harmonizes with the testimony of the witness.. It is true that she testified that she paid $500 to McLaughlin before Cross came. But she also testified, in equally positive language, that Cross was the first captain that she had dealings with.

The te^imony of the witness in regard to the manner in which she got the $500, and her bank accoujits is of an equally interesting character.

During the course of her cross-examination she was asked, referring to the time when she furnished, the house in Chrystie street: “ Q. Did you have any money in bank? A. No. Q. Did you ever have any money in bank? A. Yes. Q. What bank? A. Down tow». Q. Where down town ? A. In Park row. Q. There is Simpsoiand two or three other places down there. What bank have yo' reference to ? A. I haven’t got it now any more. Q. You kept some money in a bank in Park row ? A. Yes. Q. How long did you keep the money there? A. Two or three months. * Q. Do you know the name of the bank ? A. No, I don’t, for I ain’t got it no more, and I forgot the name of it, too. Q. When did you draw out your last money ? A. About two years ago. Q. You don’t remember the name of the bank? A. No. Q. Do you remember how much you finally drew out ? A. I don’t remember that. Q. Was it $500 or $1,000 ? A. I don’t remember. Q. Was it $5,000 ? A-. No, sir; never got as rich as all that. Q. Haven’t you any idea how much money you drew out of the bank ? A. I don’t remember exactly; about $500 or $600. Q. And that you drew out, you say, when? A. About two years ago. Q. What did you do with the money ? A. Spent it.”

The witness further testified that she had borrowed the money which she paid to Captain Cross from Jacob Wolf and Isidore Kraushaar. Subsequently she was recalled, and was asked by the prosecution: “ Did you have any bank account at all when you were keeping 1M Chrystie street ? A. I did. Q. Where was it ? A. I had some money once in Canal street. Q. At the Canal Street Bank; now, other than that, did you have any bank account at all ? A. No.”

lTp<m examination by the counsel for the relator the witness was asked: “You don’t remember having kept an account in 1892 ? A. I kept it, but I don’t exactly remember when it -was. Q. Was this the same bank that you testified to having kept an account in on my cross-examination ? A. No, sir; that is a bank I kept a bank account in; a small bank account before I kept that house, and I did not think it was necessary for me to mention it. Q. You did keep another bank account? A. I did. Q. And it was a small bank account which you started before you kept that house ? A. Yes, sir. Q. About how much; what do call a small bank account ? A. I don’t know; I don’t remember. Q. $250 ? A. I don’t know.

The witness was further asked: “ Q. T ou did not have that account in 1892? A. I don’t remember when I had it. Q. You don’t remember when you had it? A. No. Q. And you don’t know how much you had in 1892? A. No.”

The witness was then asked: “ Q. Did you keep an account in the Citizens’ Bank? A. No. Q. Sure about that? A. I don’t know anything about it. Q. Did you keep an account in the Citizens’ Savings Bank in 1892 ? [Counsel for prosecution] On Canal street ? ’ A. Not that I know of. Q. Did you keep an account at the Bowery Savings Bank in 1892, or at any time ? * * * A. I did. Q. How much did you have there in 1892; do you remember ? A. I don’t know. Q. Was it more than $500 ? A. I don’t remember. Q. Was it $5,000 ? A. No ; I don’t remember of having $5,000. Q. About how much was it ? A. I could not tell you. Q. Did you draw any money out of the Bowery Savings Bank in 1892 ? A. I drawed it just to pay back those people from whom I borrowed it.”

The witness then further testified to having kept an account in the German Savings Bank as well as in the Citizens’ Bank and the Canal Street Bank. But in this connection it may he proper to state that probably the witness confused the Bowery Savings Bank, the Citizens’ Bank and the Canal Street Bank, because the name of the bank was the Citizens’, and its location was at the corner of the Bowery and Canal street.

The witness was then asked: “ Q. Don’t you know that, in the three banks in which you kept an account in 1892, that there was to your credit over $5,000 ? A. No, sir; I did not exactly know. * * * Q. Or about $5,000 ? A. Maybe it was. Q. What did you mean by telling this board, on your cross-examination, that you did once keep a bank account in a bank on Park row, but that since you closed your account there you have kept no bank account anywhere; what did you mean by that? A. Because I have had that bank account pretty near all; it was when my husband was alive and he kept them, and I know nothing about it. They were left to me when my husband died, and I did not think it was necessary to mention them. Q. Were not these deposits with the banks I have mentioned kept in the name of Kate Wendt (the name of the witness’first husband being Wendt) ? A. Certainly. Q. And didn’t you open those accounts in all the banks I have mentioned ? A. No, sir; .1 had them signed over to me after my husband died. Q. You are sure about that? A. Yes, sir. Q. And you cannot be mistaken about that? A. No, not at all. Q. Can yon now tell us how much money you drew from any one of those three banks, or all three of those banks, in the year 1892? A. No, sir; I could not tell you; I don’t remember. Q. Did you draw any money out of the Citizens’ Savings Bank in the year 1892 ? A. No; I have drawed it every time I wanted money out of the Canal Street Bank. Q. Every time you wanted money you drew that from the Canal Street Bank? A. Yes, sir. Q. Can you tell us how much money you had on deposit to your credit in the Canal Street Bank at the time you say you gave $500 to Captain Cross ? A. I have had $3,000. Q. You had $3,000? A. Yes, sir. Q. Then at the time you say you paid Captain Cross $500 you had to your credit in the Canal Street Bank $3,000 ? A. Yes, sir; I had it. Q. Now, having that large amount of money to your credit in the savings bank, why did you borrow $1,100 from "Wolf and Kraushaar; why didn’t you draw it from the bank ? A. Because it was around the time that there was some trouble in the bank, and I could not get any money. Q. There was some trouble witli the bank in 1892, and that is why you could not get any money ? A. From what I can remember I went to get the money and could not. * * * Q. You never personally knew anything about trouble with that bank ? A. Í knew nothing; only I went there and there was a crowd of people, and they said I could not get in and get my money.”

Subsequently the witness stated that she had handed over her bank book to somebody who went bail for her, and that he had the bank book and she could not draw the money; and she further testified that after she had been released and paid her fine and been discharged, she borrowed the money to pay Captain Cross.

The character of this evidence shows that the witness did not seem to think it necessary to testify to any fact which existed because she was questioned in respect thereto, and it is apparent that she had knowingly testified falsely in regard to the existence of this account in the Citizens’ Bank. And it is also equally clear that she knowingly testified falsely as to the reason she gave for not drawing the money from the bank. It appears that in 1890 there had been a run upon the Citizens’ Bank, but, subsequent to that time, no trouble; and that instead of the witness going there she testifies in another place that she did not go, and could not get her money, because her bail had her bank book as security, and then further testifies that this money was borrowed and paid over weeks after she had been tried and discharged. It appears upon an examination of this bank account in the Citizens’ Saving Bank that she had never drawn a dollar at the time she said she had drawn the money for the purpose of paying back the money which she had borrowed. It further appears from the testimony of the clerk of the bank that her testimony as to the account ever being in the name of her husband was absolutely false; that it was opened by her in March, 1881; that on the 1st of July, 1893, she had $3,210 to her credit, and that from the 10th of August, 1891, she had not drawn a dollar from that account.

It does not seem necessary to multiply instances of the absolute unreliability of this witness.

It was attempted to excuse her manifest prevarications and remarkable lapses of memory by the assertion that she could not read and write, and that, therefore, her mistakes in regard to her financial affairs and her bank account, and the times of the happening of these various transactions, arose from the fact that she had no means of refreshing her memory by any memorandum or writing which had been made.

It has been held by the Court of Appeals in the case of Frace v. N. Y., L. E. & W. R. R. Co. (143 N. Y. 182), which was an action to recover damages for the destruction of plaintiff’s property by a fire alleged to have been kindled by sparks which escaped from an engine passing on defendant’s road, that the court may take judicial notice of the fact that diamond stack and straight stack spark arresters are in very general use upon the railroads of the country, and that they are both well-known systems for arresting sparks, while no system that has yet been invented can wholly prevent the emission of live sparks from an engine under certain circumstances. And we think that we may equally take judicial notice of the fact that persons who are engaged in business, who cannot read and write, have their faculty of memory more acutely educated, for the reason that they are compelled to depend upon their memory and cannot rely upon written memoranda. The fact that this woman could not read or write would, according to common experience, tend to create in her a more accurate and retentive memory, because it would be upon that faculty that she must rely in the conduct of her affairs. Instead, therefore, of her incapacity to read and write accounting for her loss of memory, it seems to make it the more remarkable. It is evident, upon a consideration of the whole of her testimony, that she was willfully forgetful and had not the slightest regard for the truthfulness of her testimony.

But it is claimed that the evidence of the witness Schubert was corroborated by that of the witness Alice Ryder, who, as we have seen, was also one of the virtuous inmates of this establishment. It was claimed that this woman had seen Captain Gross upon one of the visits which he is alleged to have made to this house, No. 144 Ohrystie street.

The witness was asked: Q. Did you ever see Captain Cross ? A. I never saw him. I don’t know that I saw him.”

And then, after having testified to having been an inmate of that house for eighteen months, she testified to the counting out of $500 in bills for Mrs. Schubert, and giving them to her; and that on the same evening two gentlemen called, one of whom she described as being “ dark conrplexioned, rather stout, very stout,” tall and with a dark moustache. She stated that she did noc get a good look at him, she just had a passing glance as she was going from the back parlor to the kitchen and as Mrs. Schubert ivas taking them into the front parlor. She also testified that she only saw this man that one evening and then didn’t get a good look at him.

She was asked this question: “ Q. Look around and see if you can pick him out. A. This is the one that seems to me (placing her hand on Oaptain Gross). * * * He looks very much like him. Of course I did not see him full face, but only side face.”

The witness subsequently testified that she never saw this man before or after that night. It appeared that she had been arrested with the other girls in the house at the time of the raid by Captain' Gross, and that he was at the desk and their names, etc., were taken down in his presence.

She further testified to having, at Mrs. Schubert’s request, written on certain envelopes the words “ from Mrs. Schubert,” which envelopes Mrs. Schubert testified she had put money in and left at the station house for the captain.

This was all the corroboration that there was of the testimony of Mrs. Schubert. It seems to us that it was wholly, insufficient. It amounted to no corroboration at all, because upon the question of identity she must have testified falsely, as she saw the captain at the station house and was undoubtedly familiar with his presence. •

It further appears, as has already been stated, that the relator was prevented from ascertaining as to whether this girl was still carrying, on her business, or whether her statement that she was a respectable woman was true. In fact, all her testimony could be entirely correct (with the exception of the question of identification, on which the evidence does not seem to be very reliable) without its bearing at all upon the question of the guilt of the relator upon the charges preferred. An examination of this testimony necessarily leads to the conclusion that no man should be held guilty of the crime of bribery and forever disgraced upon such evidence.

It is undoubtedly true that much of the evidence upon which we must rely, if crime is to be punished, comes from polluted sources. Crime is not committed, ordinarily, with respectable and reputable witnesses looking on, who can testify to the facts ; but it has its birth largely in secret and amongst the disreputable; and the proof of its commission must be established, if at all, by proof taken from this class of the community. These facts should be no reason for allowing crime to go unpunished. It necessitates, however, a closer examination of the evidence, and some corroboration of the witnesses, either from the nature of their testimony given or by the testimony of other witnesses.

If the story of such a witness is of such a character and so consistent in its details and harmonizes so well with surrounding circumstances as to carry conviction even where there is no corroborating testimony, it may afford satisfactory proof of guilt. But where such evidence is not consistent, abounds in contradictions and shows a disregard of the truth, clearly it cannot form the basis of a judgment establishing crime.

The evidence of Mrs. Schubert and Alice Ryder, as we have seen, shows certainly considerable recklessness of assertion and lapses of memory which cannot have had an honest origin. As has been already stated, the claim was and is made by the prosecution that these women were respectable women, and that the weight due to good repute should be given to their testimony; out the relator was refused the right to test by the methods well recognized in the law these claims upon the part of the prosecution. The identity and location of these witnesses was studiously concealed, and the relator was refused the right to examine them as to their present whereabouts and occupation. It may well be, had the ordinary opportunity of cross-examination been offered, that the relator might have been able to have shown by their neighbors that this claim of respectability was all a sham and delusion.

The attempt to justify this ruling upon the plea that it was to protect these witnesses from exposure as to their past life, they having reformed, cannot prevail, because having testified voluntarily to their disgrace (we say voluntarily because they could have shielded themselves under their privileged claims to have reformed) the relator had the right to test the truth of the claim of reformation. Under such circumstances, in order that it may be said that the relator has suffered no harm because of this ruling, the evidence of guilt should be of a very satisfactory character, instead of being of the unreliable character exhibited in the case at bar. The same ruling was made in the case of Rhoda Sanford, who did not claim that she had reformed, and the relator was even in her case deprived of the benefit of showing her surroundings, and the influence under which she was testifying.

As has already been suggested, the charge, so far as the taking of money from Rhoda Sanford is concerned, depends upon the testimony of Mrs. Schubert connecting the captain with the wardman Smith. Mrs. Sanford swears that she never paid any money to the captain; that all her transactions were with the wardman. It appearing that the woman Schubert is entirely unworthy of belief, there is nothing to connect the relator with the charge of bribery in regard to the house of Mrs. Sanford, No. 2i Bayard street.

As to the charge of failing to report these disorderly houses, there was a conflict, of testimony and different conclusions perhaps might be drawn therefrom. But as it seems to be probable that the charges for which the relator was dismissed were as to the receiving of these alleged bribes, the mere fact that a finding of neglect of duty might be sustained upon the evidence should not prevent a reversal of the judgment of the police commissioners convicting the relator of an infamous crime.

It is claimed upon the part of the relator that the reason the charge against Kelly was not pressed, was because he had been retired from the police force a few days before the complaint of Hendrickson. It may be a question as to whether this was a sufficient excuse for entire neglect to investigate the matter; but, as already suggested, it does not appear that the sentence was pronounced because of a conviction upon this charge.

Upon the whole case, therefore, we think that the judgment of the police .commissioners should be reversed and the relator reinstated, with costs.

O’Brien and Parker, JJ., concurred.

Judgment of commissioners reversed and relator reinstated, with costs.


author: Van Brunt, P. J.:

text:
    In the Matter of the Application of George Smith for a Writ of Certiorari to James J. Martin and Others, as Police Commissioners of the City of New York, Constituting the Board of Police of the Police Department of the City of New York.

      Written memoranda — -use of, to refresh memory and its admission in evidence, distinguished — em'i'dboration of a witness by entries in his boohs.

    A written memorandum or entry, made by a witness at or about the time of a transaction, where such entry is known at the time by the witness to be correct, may be referred to by him for the purpose of refreshing his memory.
    It is only where the witness has no memory in regard to the transaction, but is willing to swear to the truth of the memorandum, and that it was made at or . about the time of the occurrence, and that, although the witness has no present recollection, he is confident that it truly related the circumstances, that such memorandum may be admitted in evidence.
    The testimony of a witness cannot be corroborated by the.entries made by him in his own books.
    Certiorari issued out of the Supreme Court and attested on tbe 6th day of September, 1894, directed to James J. Martin, John C. Sheehan, Charles H. Murray and Michael Kerwin, as police commissioners of the city of New York, constituting the board, of police of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their acts, proceedings, and documents in relation to the removal or dismissal of the relator from the police department of the city of New York.

      EUhu Root, for the relator.

      Francis L. Wellmcm, for the respondent.
   Van Brunt, P. J.:

Upon the argument of the writ of certiorari in the case of Captain Cross and of the relator in this proceeding, it was conceded that the testimony as against both relators was of the same character, and that the disposition of the one case would necessarily control the other.

But in view of the conclusion at which we have arrived in the case of Captain Cross, it may be necessary to consider some testimony which was offered against both of these parties, but which is only competent as against the relator Smith. Ye refer to the testimony of Rhoda Sanford and that relating to the alleged corroboration of her evidence. It appears that Rhoda Sanford was a keeper of a house of prostitution at No. 21 Bayard street, and she claims to have paid the relator certain sums of money. The same course was pursued upon the cross-examination of this witness to prevent the relator from showing the then present whereabouts of Rhoda Sanford and the influences by which she was surrounded shortly prior to giving her testimony, thus precluding him from having applied the ordinary tests in respect to the weight to be given to the testimony of this witness, who, it is worthy of remark, did not claim to have reformed.

It is to be observed that the invasion of this right tended manifestly to produce injury to the relator because of the fact that it is admitted that this witness, in her examination before the Lexow committee, deliberately testified falsely, but it is now claimed that her testimony is correct. The circumstances causing such change of heart might very well be inquired into in order that her testimony should be properly weighed.

It was claimed that Rhoda Sanford’s testimony was corroborated by the evidence of witnesses showing that she kept a house of prostitution — about which there was no dispute — and also by entries in certain alleged books which she claimed to have kept.

The evidence in regard to the fact of the existence of the house of prostitution certainly did not corroborate the witness in respect to the disputed facts. The alleged books of account wore of the most suspicious character even if they could be considered as evidence in the case at all. She first commenced keeping the books five or six months before the happening of these events. There is no evidence that she ever kept books before, and an inspection of the entries therein shows beyond question that they were not an account of all the expenditures of her establishment, neither were they books of account showing the receipts and expenditures which she had made. An inspection.,of these entries necessarily renders one suspicious as to the authenticity of more than one of such entries. The fact that these books were taken away from her some time prior to her examination before the Lexow committee, and that she had not seen them since, argues but little in favor of their verity.

But we have yet to learn that a witness can be corroborated by the entries in his or her own books. It would be a novel method of manufacturing testimony to allow one’s own letters and entries in one’s own books to be offered in evidence as corroborating the statement of such witness. A written memorandum or entry made by a witness at or about the time of the transaction, where such entry is known at the time by the witness to be correct, may be referred to by him for the purpose of refreshing his memory; and it is only where the witness has no memory in regard to the transaction, but is willing to swear to the truth of the memorandum, and that it was made on or about the time of the occurrence, and that although the witness has no present recollection, he or she is confident that it truly related the circumstances, that such a memorandum may be admitted in evidence.

In the case at bar it is claimed that the evidence of this discredited witness is to be supported by entries in these books which it is alleged were her business books — it appearing that she had never kept any books until just previous to these transactions — and credit is claimed for her upon this ground. It would be very easy for witnesses to manufacture any desired amount of corroborating evidence if such a rule were to be adopted. It is apparent that there was no corroboration of the testimony of this witness, and that an inspection of these entries shows that they are suspicious in themselves. The witness was thoroughly discredited and shown to have no regard for her oath even aside from her occupation, and as this was the only additional evidence against Smith, it would seem that her testimony must be rejected and the same judgment pronounced as in the case of Cross.

The judgment of the police commissioners should be reversed, and the relator reinstated, with costs.

O’Brien and Parker, JJ., concurred.

Judgment of commissioners reversed, and relator reinstated, with costs.