People v. . Marrin

Vann, J.: Upon the charge that the defendant, as a commissioner of deeds, “ wilfully certified falsely ” that the mortgage in question was duly acknowledged before 'him, a serious difference of opinion has arisen in regard to the admission of certain evidence *200 given in support of the accusation. The circumstances under which that evidence was received were as follows: The defendant, a practicing lawyer in the city of Brooklyn, had as a client an old lady named Caroline Biarry, a resident of that city, who on or about the third of Eovember, 1893, gave him $4,000 to invest for her. In a short time he delivered to her the paper set forth in the indictment purporting to be a mortgage duly acknowledged before himself as commissioner of deeds and to have been executed by Jiames Cahill, as mortgagor, to Caroline Barry, as mortgagee, to secure the payment of $4,-000 in three years from date with interest, payable semi-annually. There was a false certificate of record indorsed on the mortgage, which purported to cover the adjoining halves of two lots in Brooklyn, the division lines passing nearly through the center of the buildings thereon. It was shown that no person named James Cahill had ever been connected with "the record, title or possession, of either piece of property. Several persons of that name were called by the prosecution, each of whom swore that he was not the James Cahill named in the instrument, that the signature thereto was not that of any James Ca-hill known to him and that he neither signed nor acknowledged it himself. The defendant embezzled said money, but from time to time paid Mrs. B'arry what purported to be the interest upon the mortgage as it fell due. Thereupon, in order to show that James Cahill was a myth, that if any one acknowledged the instrument the defendant knew it was not the person described therein tand that the transaction was part of a continuous scheme to defraud Mrs. B'arry, eight similar mortgages were offered and received for that purpose only. At the time they were received, as well as in the charge, the court carefully instructed the jury to that effect and distinctly told them that such'mortgages could not be considered as any evidence of an independent crime or for any purpose except the one thus announced. *201 These mortgages purported to have been given within a period of less than two years, being dated two or three months apart, and they were all actually recorded, except the last two, which were dated after the one in question and bore false certificates of record. Each, was delivered by the defendant to Caroline Barry as evidence of an investment made by him for her of money intrusted by her to him, to be invested in mortgages in her name, shortly before the date of each instrument, but in each case the money instead of being invested in any way was converted by him to his own use. Each ran to her as mortgagee and each covered no unit of realty, but parts of houses on adjacent lots belonging to different owners, or rear ends or sides of lots. In each instance the person named as mortgagor was unknown and could not be found after diligent inquiry. Each was a stranger to the record, title and possession of the premises covered by the mortgage. Each mortgage was certified by the defendant to have been acknowledged before him as commissioner of deeds, and he paid the interest on each as it became due from money intrusted to him by Mrs. Barry for investment. He used all the money, amounting to over $30,000, for his own purposes. It was not enough for the people to show simply that the certificate in question as-made by the defendant was false. It was necessary- for them to go further and show that he knew it was false, as the statute condemns one who “ willfully certifies falsely.” Willfully, as thus used, means intentionally, so that proof of intention to make a false certificate is expressly required. As the defendant had made no admission upon the subject, knowledge and intention could be shown only by eircumstantial evidence. Moreover, although the district attorney had made out a prima facie case, he was not bound to stop there, but could go on and make the case conclusive by showing that the defendant was not mistaken and that he was not deceived by someone who assumed to be James Cahill, and to aeknowl *202 edge the mortgage under that name. It could not be known in advance what the defendant might swear to himself, or prove by other witnesses. Non constat he might produce evidence tending to show that he was misled into making the certificate by a person whom he honestly believed to be James Oahill, as named in the mortgage. In order to show knowledge, intention and the absence of mistake, the district attorney had the right to prove similar acts, done under similar circumstances at about he same time, with intent to defraud the same person by the same means. The common method, purpose and victim formed the connecting links which strung together the nine successive and successful efforts to defraud pursuant to a common scheme. (People v. Dolan, 186 N. Y. 4, 10.) The mortgagor named in the indictment may or may not have been a myth, but when eight similar myths appeared as mortgagors in eight similar mortgages, some dated before and some after the one in question but no two far apart, each given to and used to defraud the same person and each acknowledged before the defendant who received the proceeds of the fraud in each case, the probability that the mortgagor in question was a myth was greatly strengthened. The probative force of such evidence bore logically on the question whether the defendant knew that James Oahill was a myth and with cumulative power in proportion to the number of instances, tended to exclude the possibility of mistake on his part in that regard. It also tended to show his intention to make a false certificate. The suggestion that evidence could not be received to show that the same man picked the pocket of the same person on several successive occasions near together, does not apply to this case, because the pickpocket knows when he steals. There can be no mistake about it, whereas here there may have been a mistake. James Oahill may not have been a myth. Some one may have assumed to be James Oahill and may have convinced the defendant that he bore that name and was in fact the morfr *203 ,gagor, so that while the certificate was false the defendant may not have known it was false. The people did not know how much evidence might be presented by him tending to show that .he was mistaken and the way was open to the prosecution to reduce the possibility of mistake to a minimum by proving eight similar and connected transactions, each of which as well as .the one in question was part of a general scheme to defraud Mrs. Barry by means of spurious mortgages certified by the defendant in the same way and under similar circumstances. The evidence also bore upon intent, not merely the intention of the defendant to make the certificate, but with especial weight upon his intention to commit a crime in making it. If one plan ran through all the transactions and was-worked out in the same way, at nearly the same time, by the same means, with intent to defraud the same person, with the same effort to conceal by payment of interest, and a common method, agency and purpose welded all the mortgages together, all were competent to show that the defendant was not mistaken in doing the single .act for which he was tried, because nine mistakes of the same kind, each of which put a large sum of money in his pocket, .are impossible of belief. It is conceded that where knowledge is a necessary ingredient of a crime, evidence of similar acts by the defendant at or about the same time is admissible. It is further conceded that proof of scienter was necessary in order to show that the defendant knew that any person who may have appeared before him was not the James Cahill described in the mortgage. And, finally, it is conceded that if the eight mortgages had all purported to have been executed by James Cahill they would have been competent to show knowledge and improbability of deception or mistake. It seems to me that the distinction between the case and the concession is too narrow for practical use in administering the law. If all the mortgagors in the eight mortgages were myths, *204 the mythical names they here were of slight importance. The-false- name was not the material fact, hut the false man and the-furtive intent in certifying that he was a true man and the mortgagor. If the eight mortgagors were myths, it was probable that the ninth was also and equally probable that the defendant knew it, whether they bore the same name or different names. The theory of the prosecution was not that because-the defendant forged on eight occasions he forged on the ninth,, but that on the ninth, he was not mistaken, deceived or misled ; that he knew what he was doing and did it with evil intent, because shortly before and shortly after he did the same-thing to the same person under like circumstancés for the same-purpose. The fact that the evidence tended to show him guilty of other crimes does not control, provided it fairly tended to-prove that he knowingly and intentionally certified falsely. Ashe may have acted without wrongful intention on the ninth occasion, it was proper to show, as bearing on his good faith, how he acted on eight similar occasions, closely connected with- the ninth. If he had been tried for uttering forged paper on one-occasion, clearly it would have been competent to show that he uttered like paper on eight similar occasions, because it would have borne on his knowledge, intent and good faith on the occasion in question. Such evidence has been sanctioned for time out of mind in cases involving the uttering of forged instruments, counterfeiting, obtaining money by false pretenses, receiving stolen property, setting buildings on fire with intent to defraud insurance-companies, sexual crimes, violation of the exercise law, gambling and other offenses. (Mayer v. People, 80 N. Y. 364; People v. Shulman, 80 N. Y. 373, note; People v. Everhardt, 104 N. Y. 591, 595; People v. Molineux, 168 N. Y. 264; People v. Dolan, 186 N. Y. 4; People v. Zucker, 20 App. Div. 363; 154 N. Y. 770; People v. Harris, 136 N. Y. 423; People v. Doty, 175 N. Y. 164; Rex v. Dossett, 2 C. & K. 307; Rex v. *205 Cooper, 3 Cox Cr. 547; State v. Lapage, 57 N. H. 245; United States v. Snyder, 14 Fed. Rep. 554.) In People v. Everhardt, upon the trial of the defendant for uttering a forged check knowing it to be forged, the people were allowed to prove, against his objection, the uttering of other .forged checks by him on other occasions. Judge Earl, speaking for all the judges, said: “ In this there was no error. The defendant by his plea of not guilty had put in issue everything which it was incumbent upon the people to prove. They had no •direct or positive evidence that he personally forged the check which he uttered, and it was open for him to show that at the time he uttered it he had no knowledge that it was forged, and was therefore innocent of crime; and for the purpose of showing the prisoner’s guilty knowledge in such cases it has always been held competent to prove other forgeries. Such proof is not received for the purpose of showing other crimes than that -charged in the indictment, but for the purpose of showing the .guilty knowledge and intent which are elements of the crime charged, and it can be considered by the jury only for that purpose. Although the evidence of Gaylord, corroborated as it was, as to the guilty knowledge of the defendant, was quite dear and convincing, yet the people were not bound to rest upon a prima facie case, but had the right to confirm that evidence by the proof as to the uttering of other forged checks.” In People v. Shulman the indictment was under the statute relating to false pretenses. Judge Earl said: “ The intent, motive, and knowledge of the prisoner are proper subjects of investigation, and they may be found by evidence of all the circumstances attending the criminal transaction, or by the declarations and conduct of the prisoner, both before and after. -h -y,- -x- ^ the trial of a person charged with passing counterfeit money, proof is always received to show that the prisoner on other occasions, both before and after the time named in the indictment, passed other counterfeit bills. On the trial of a *206 person charged with receiving stolen goods, it may he shown* that before and after the time of the alleged crime he received other stolen goods from the same party; and the same kind of evidence has been received upon trials for embezzlement. * * * So when a person is charged with procuring property by false pretenses, and the question is as to his knowledge, motive, or intent, evidence that soon after, and from time to time afterwards, he continued to obtain property from others in the same way and for the same fraudulent purpose obviously reflects light upon that question. Such evidence has a direct tendency to show the mind with which he obtained the goods 'at the prior date. * * * But there is one general rule which must apply to all such cases; there must be, in the transactions thus sought to be proved, some relation to or connection with the main transaction. That is, they must show a common motive or intent running through all the transactions, or they must be such as in their nature to show guilty knowledge at the time of the main transaction, and if they possess these characteristics, then it matters not whether they were before or after, or near to or remote from the main transaction.” In People v. Dolan the defendant was indicted for forging the name of Thomas Oockerill & Son, as the makers of a promissory note and uttering the same, knowing it to be forged. In order to show guilty knowledge on the part of the defendant the prosecution proved the uttering by him of two other forged notes signed with the same name, two more signed with the name of James Stewart & Co., and a fifth with the name of Patrick Gallagher. The defendant had had dealings with each of the purported makers, and when he uttered the forgeries he was in financial difficulties, but no other connection between the five notes and the note in question appeared. It was held that all the notes were competent. The court quoted from People v. Sharp (107 N. Y. 467), where it was said: “ A man might think the money he passed was good, and he might be mistaken *207 once or even twice; but the presumption of mistake lessens with every repetition of the act of passing money really counterfeit.” Judge Werner then added: “ The latter observation very tersely states a rule that is as applicable to prosecution for forgery as to cases of passing counterfeit money.” After holding that the evidence was competent upon the issue of guilty knowledge it was further said: “ There is also another ground upon which this evidence was competent. All the notes referred to in the evidence were made at about the same time. In each case they were made payable to the defendant and indorsed by him. During the period covered by all the notes the defendant was endeavoring to raise sufficient funds to meet his obligations, and in each ease he used the name of some builder with whom he had done business -and with whose affairs he was familiar. This combination of circumstances was sufficient to establish a common plan and identity of method so connected as to have a strong tendency to overcome any claim of innocent intent in the uttering of the note charged in the indictment.” (p. 9.) Mr. Underhill in his work on Criminal Evidence (2d ed., §89) says: “ It is relevant to prove that the person whose intention is in question had performed acts of a precisely similar nature either before or after the act the intention of which is in question. * * * So, where the commission of an act alleged to be a crime is admitted by the accused but he denies that he intended to commit it or alleges that he did it without guilty knowledge, his doing similar acts, wholly independent and unconnected with that under investigation is relevant to show intention.” Mr. Wharton says: “ In order to prove purpose on the defendant’s part, system is relevant and in order to prove system, isolated crimes are admissible from which system may be inferred. * * * When the object is to show system, subsequent as well as prior offenses, when tending to establish identity or intent, can be put in evidence. The question is one of *208 induction and the larger the number of consistent facts, the more complete the induction is. The time of the collateral inculpatory facts is immaterial, provided they be close enough together to indicate that they are part of a system.” (Wharton’s Criminal Evidence [9th ed.], §§ 32 and 38.) See also the interesting and instructive chapter of Professor Wigmore on “ Other Offences, or similar acts, as evidence of knowledge, design or-intent.” (1 Wigmore on Evidence, ch. 12.) The defendant relies upon a case which I regar.d as a direct authority against him. (People v. Weaver, 177 N. Y. 434.) The indictment in that case contained two counts, the first for forging the name of one Davis as indorser on a promissory note made by the defendant and the second for uttering the note so indorsed with intent to defraud. The defendant testified that she believed she had implied authority from Davis to indorse his name on notes made by herself. Evidence given by the prosecution that she had indorsed the name of Davis on another note made by herself was held competent to prove scienter, but evidence that she had forged or uttered other notes which did. not purport to have been indorsed by Davis and which had no connection with the transaction in question was held incompetent. The evidence held competent in that case was the same in principle as the evidence involved in this, while that held incompetent was clearly so, for it simply tended to prove an independent crime, which had no connection whatever with the crime charged. As was said in People v. Dolan (186 N. Y. 4, 9), the Weaver ease has not changed the rule upon the subject as laid down in the previous cases. I think that no error was committed by receiving in evidence the eight mortgages, under the restrictions laid down by the trial court,- and, as no other question requires discussion, the judgment should be affirmed.