Dennis v. People

By the Court, Bacon, J. — The plaintiff in error was indicted at the Onondaga Oyer and Terminer, in February, 1853, for the crime of forgery. The first count of the indictment charged the prisoner with having in his custody and possession a certain forged and counterfeit negotiable promissory note for the payment of money, commonly called a bank note, purporting to have been issued by a certain association or company called the Bank of Lowville, duly authorized for that purpose by the laws of the state of New York. The note was then set forth and the prisoner was charged with having said note “ with the intention to utter and pass the same as true, and to procure the same to be uttered and passed with the intent to injure and defraud the Bank of Lowville, and divers other persons to the jury unknown, he well knowing the same to be false, forged, &c.” The second count charged him with uttering and publishing the note as true. 4 The indictment was framed under the 3Qth section of the 3d [472] title, part 4 of the Revised Statutes in relation to the crime of forgery. (2 R. S. 674.) On the trial a witness was asked the following question, “Is there such an institution doing business in the state of New York as a banking institution, as the Bank of Lowville.” This question was objected to by the prisoner’s counsel, on the ground that parol proof could not be given of that fact, and that the prosecution should produce the articles of association of the institution for that purpose. The court overruled the objection, and the prisoner’s counsel excepted. The witness answered that there was such an institution doing business at Lowville, Lewis County; that he had been in the banking house and done business with them. The jury found the defendant guilty. On the argument the counsel for the prisoner insisted that under the plea of not guilty to an indictment of this description, the prosecution were bound to prove as much as would be required in an action at law under a plea of nul tiel corporation. No authority was cited for the proposition, nor can I find any adjudged case in which this doctrine is held, and it is safe to conclude that no such strictness is required. .In the case of The People v. Davis, (21 Wend. 309,) the indictment was in the same form with the one in the case at bar, charging the prisoner with having in his possession with intent to utter, a note purporting to have been issued by the Morris Canal and Banking Company, duly authorized for that purpose by the laws of the state of New Jersey. On the trial, the counsel for the prisoner requested the Recorder to charge that the averment that the company was duly authorized by the laws of New Jersey must be proved by legal evidence of the act of incorporation, and such proof not having been given, the prisoner was entitled to an acquittal. The Recorder declined so to charge, but instructed the jury that it was enough that proof should be given to satisfy them of the existence of such an institution. On writ of error, the Supreme Court held the ruling to be correct, Nelson, Ch. J., saying that eyen “ construing the phrase purporting to be issued by a-bank lawfully authorized for that purpose in its strictest sense, still the kind or degree of [473] proof is not prescribed, and the fact is left to be proved in the ordinary way, under which as heretofore practiced in like cases, the best evidence that might be furnished is not required.” The conviction in that case was held to be right, and the principle established seems to me clearly to authorize the proof given, and the conviction which followed in the present case. The case of People v. Peabody, (25 Wend. 472,) was cited by the counsel for the prisoner as an authority which held that the existence of the bank could only be proved by the introduction of a certified copy of the articles of the association, and that such are the only competent proof. It is true that in that case such proof was given, but it is to be noted that in that case the Bank of Warsaw had never commenced operation, nor issued any bills. In this case the question was whether there was such an institution doing business- as the Bank of Lowville and that fact it was competent to prove in the manner and by the proof given in this case. It is not said in The People v. Peabody that the production of the articles is the only competent proof in all cases where the existence of a banking institution doing business is in question, and the principle of The People v. Davis is expressly recognized and reaffirmed. We do not see that any error was committed by the Oyer and Terminer in this case, and the proceedings are remitted to that court with directions to proceed, and render judgment. Proceedings affirmed.