People v. Ryland

Davis, P. J. The appellant was indicted with her husband and one Woodbury for forgery in the third degree. The crime was committed by altering a check made by Demarest & Duncan for $6 to the sum of $165.50, and uttering the same after such alteration. The testimony tending to establish the crime was given chiefly by one Crawford, an accomplice therein, whose evidence, if credited by the jury, was sufficient to convict the appellant, unless the presumption of coercion on the part of her husband should operate to protect her. One of the principal points made in the case on the part of the appellant, is, that the corroborating proof required by section 399 of the Code of Criminal Procedure was not given. Before the enactment of this Code, it was well established that a conviction of crime could properly be had upon the uncorroborated testimony of an accomplice. People v. Costello, 1 Den. 86; People v. Davis, 21 Wend. 313; Linsday v. People, 63 N. Y. 143. It was the general practice of trial courts to charge juries that it was unsafe to convict without confirmation of the accomplice as to some material fact of the case; but this was not a rule of law; but rested in the sound discretion of the court, and the omission or refusal so - to charge was not error. Linsday v. People, supra. Cases would necessarily be very rare in which there would not be some corroboration of the accomplice as to some material fact; and it was entirely safe to leave the question of the credibility of an accomplice in the hands of the jury. But the established rule of the common law has been materially changed by the Code of Criminal Procedure. Section 399, as it stood at the time of the trial, enacted “ that a conviction can not be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime,” “ and the corroboration is not sufficient if it merely shows the commission of the crime or the [129] circumstances thereof.” A more complete shield for certain classes of crimes which must always invariably be proved by accomplices, if at all, could not well be devised; for the corroboration, however strong in all other respects, must point to the connection of the defendant with the commission of the crime, to be of any avail. And in those secret crimes where usually the only witness to the connection of the defendant with the actual commission of the crime, is of necessity an accomplice, convictions will fail, however clearly the body of the crime is shown by additional evidence, becausé the witness, though fully corroborated in other respects, may not be corroborated in the designation of the person who committed the secret offense. But the law as declared by the Code must be accepted and applied by the courts. It is our duty, therefore, to see whether in the strong corroboration of the accomplice in this case in other respects, there is any corroborating testimony which tends to connect the appellant with the commission of the forgery. The evidence shows that a check for $6 payable to .the order of Georgiana Hace, was obtained from Messrs. Demurest & Duncan, upon their bank in this city; that the check was soon afterwards altered by erasing the name “ Georgiana Mace” and inserting the name “ George S. Martin,” and by erasing the word “ six” and inserting the words and figures “ One hundred and sixty-five AAn” i11 the body of the check, and by changing in like manner the figures in the margin of the check; and that the check so altered was presented at the bank and the money obtained upon it. These facts were abundantly proved without the testimony of the accomplice. They constituted the body of the crime. The accomplice also gave testimony, sufficient, if believed, to show these several facts, and to prove also that himself and the several persons named in the indictment were connected with the commission of the forgery, and shared in different proportions in its proceeds. The question was thus presented to the court whether any of the evidence outside of that given by the accomplice tended to connect the appellant with the forgery.. It was proved by Mr. Duncan, one of the firm of Demarest & Duncan, that the appellant came to their store in the evening of April 20, ánd said she wished to [130] purchase a check, as the post-office was closed up, to send $6 to her sister or mother i-ir Philadelphia; and it would accommodate her very much to get it off that evening; that he thereupon drew the check and gave it to her, and received $6 from her: and that the check was the same that had been altered. It was then proved by the paying teller of the bank, . that the check was presented in its altered condition on April 22, and paid to the person who presented it, who is also one of the indictees. Then followed the testimony of the accomplice, showing the arrangement to get the check ; its procurement, by the appellant; its alteration by her husband- at her house ; and the subsequent obtaining of, and the division of the money, of which the appellant received the largest share. It seems to us there can be no doubt, the forgery being proved, that this evidence, aliunde the accomplice, tended to connect the appellant with its commission. Unexplained, it showed that she got the check by an untrue representation that it was to be sent to her mother or sister in Philadelphia; that she caused it to be made payable to “ Georgiana Mace ”—apparently a fictitious name; that she carried the check away that evening, and on the day but one following, it was presented at the bank in its forged condition and the raised amount obtained. These facts tended to connect her with the criminal alteration of the check, because they were sufficient to put her on explanation. They connected her with the check under very suspicious circumstances, from which, if unexplained, a fair inference grows that she was connected with the forgery, and therefore they were in some degree, corroborating evidence of the character required by the Code. The section of the Code referred to does not require positive, or direct or conclusive evidence. It need only “ tend to connect the defendant with the commission of the offense.” Unexplained, the tendency of the evidence was to show that the check was obtained by the appellant in person upon a false pretext, and for a pretended use to which it was not put, and that, instead of being sent to Philadelphia, it was altered, and raised, and the money obtained on it within so short a time after it was obtained, as almost to preclude the possibility of its having been sent to that city; and although this alone might not justify the conviction, yet, taken with the evidence [131] given by the accomplice of her presence at the commission of the forgery, and her sharing in its fruits, it presented a case proper to be sent to the jury, especially after her own examination had failed to explain or contradict some of the important circumstances. The other important question is, whether the presumption of coercion by the husband required the court to take the case from the jury. The charge in the case is not given. We must presume that the court charged the jury correctly as to the law affecting the question, and as to the duty of the People to overcome presumption in favor of married women who participate with their husbands in the commission of crime. The law on this subject as announced in Seiler v. People, (77 N. Y. 411); and Goldstein v. People (82 Id. 233), is to the effect that coverture is no protection where the wife is shown to have taken an active and willing part in the criminal act, or where she is the inciter of it, and that the fact of the husband’s presence is but prima facie evidence of coercion, which like other presumptions may be rebutted and overcome by proof. The court in determining the question of coercion had before it the whole of the testimony, including that of the accomplice, and was to act upon the probability that 'the jury would give credit to the whole, and in that view it is impossible to say that it was the duty of the court to take the case from the jury on the grounds of coverture and coercion. There was sufficient proof, assuming that the jury gave it credit, to show that the appellant was a principal, and not a mere accessory before the fact. The evidence tended to show a confederating of several parties to take various steps intended to, and which did result in the completion of the crime. The jury had a right to find from the evidence that the participation of_ each was pre-arranged ; the appellant to procure the check which could be altered ; the husband to make the alteration; the accomplice to get the money upon it through some person, and the several parties to divide the proceeds; and to find the consummation of the object all had in view, by each doing his or her preconcerted part. We think, the question whether the appellant was an accessory or principal party was proper to be [132] submitted to the jury, and that it was no error to refuse to. take it from them. The result is, that the judgment should be affirmed. Dwight, J., concurred.