
    The People of the State of New York, Appellant, v. Erastus Wiman, Respondent.
    Forgery — Criminal Intent. The general rule, that criminal intent is essential to constitute a crime, applies to the crime of forgery in the second degree, and the charge of the court, on a trial for that crime, should clearly instruct the jury to that effect.
    Reported below, 85 Hun, 320.
    (Argued October 31, 1895;
    decided December 19, 1895.)
    
      Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 15, 1895, which reversed a judgment of the Court of Oyer and Terminer of the city and county of Mew York, convicting the defendant of the crime of forgery in the second degree, and granted a new trial.
    The indictment was based upon section -511 of the Penal Code, which declares that a person is guilty of forgery in the second degree who, “ with intent to defraud,” commits the acts thereinafter specified.
    The facts, so far as material, are stated in the opinion.
    
      John D. Lindsay for appellant.
    The trial judge did not •err in refusing to charge in the form requested on the question of criminal intent. (People v. Stevens, 109 N. Y. 159.) The criminal intent necessary to constitute the crime of forgery is the intent to defraud specified in the statute. The act must be done with that intent, as in larceny the taking, must be with intent to deprive and defraud the true owner of his property, etc. (People v. Grim, 3 N. Y. Cr. Rep. 317; People v. Moore, 3 N. Y. Cr. Rep. 458; 37 Hun, 84.) Where the trial judge, correctly charges a proposition, it is not error to give the statutory language the preference and decline to adopt the phraseology of counsel. (Walker v. People, 1 N. Y. Cr. Rep. 22, 25; People v. Weyman, 128 N. Y. 585.) The appellate court will not permit counsel to avail themselves of objections and exceptions based on assignments of error which their own efforts might have obviated below. (People v. Hughes, 137 N. Y. 29.) A judgment will not be reversed upon an exception to a portion of a charge which, although standing by itself is erroneous, was so coupled with other statements as to modify it and give the correct rule. The same principle applies to a case where the trial judge while refusing a correct proposition has stated the true rule embracing the same proposition. (Higinbotham v. D., L. & W. R. R. Co., 122 N. Y. 91; Randall v. Packard, 142 N. Y. 47.)
    
      
      Benjarrwn F. Tracy for respondent.
    The court erred in refusing to charge the defendant’s request, “ unless the jury find that the acts charged were committed with criminal intent the defendant is entitled to an acquittal.” (People v. Powell, 63 N. Y. 88; Stokes v. People, 53 N. Y. 179; People v. Flack, 125 N. Y. 324; Duffy v. People, 26 N. Y. 588; People v. Stevens, 109 N. Y. 159; 9 Misc. Rep. 447.)
   Per Curiam.

It appears that Robert Gr. Dun, Arthur J. King, Robert D. Douglass and the defendant, Erastus M iman, were associated together in business, carrying on mercantile agencies under the names of R. G. Dun & Co., and Dun, Miman & Go., in various cities of the United States and Canada. Miman was the principal business manager, and had the power to sign the company’s name to checks that were necessary to be drawn in the conduct of the business. On the 6th day of February, 1893, the company was owing one E. M. Bnllinger the sum of about §15,000, and on that day the defendant directed a clerk in the company’s office to draw a check to the order of Bullinger for §5,000, upon the Chemical Yational Bank, to be paid to Bullinger.on account of the money owing to him. A check was accordingly filled out by the clerk, and that amount charged to the account of Bullinger on the books of the company. The defendant took the check, signed the company’s name thereto, and on the same day, without the knowledge or consent of Bnllinger, indorsed Bullinger’s name on the back of the check, and then, after indorsing his own name thereon, deposited it to his own credit in the Central Yational Bank. The check was subsequently presented to the Chemical Yational Bank an<j was paid, and a few days thereafter it was brought to the attention of the defendant’s associates in the business. It further appears that at this time the defendant had overdrawn his account with the company in an amount upwards of $150,000, and that his associates had forbidden him to draw more from the business on his own account, except a stipulated sum agreed upon per month, until the amount of the overdraft should be restored or made good.

The defendant was subsequently accused of the crime of forgery in the second degree by an indictment charging him-with having feloniously forged on the hack of the check the indorsement of E. W. JBullinger with intent to defraud, and in another count he was charged with uttering the same. Upon the trial the court withdrew from the jury all question witli reference to the intent to defraud Bui linger or the Central National Bank, and submitted only the question of the intent to defraud B. G-. Dun & Co.

The claim is made that the transaction set forth does not constitute the crime of forgery. Upon this question our minds are not in accord, and inasmuch as other facts may appear in the event that we should again bé called upon to review this case, we have not thought it advisable to enter upon a discussion of the question at this time.

During the summing up of the defendant’s counsel, he was interrupted by the court and a conversation ensued after which the defendant’s counsel stated that he should ask the court 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 replied that he should refuse to so charge. Subsequently the court did charge on the request of the counsel that “ If the jury shall find that Wiman bdlieved 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 was also requested by the defendant’s counsel to charge that “ unless the jury find that the acts, charged were committed with criminal intent, the defendant is entitled to an acquittal.” The court replied, 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.” To this ruling an exception was taken by the defendant. . During the summing up of the defendant’s counsel the judge was asked how he would charge upon the subject of criminal intent, and he replied: “ I shall charge that the jury must find that there was intent to defraud ; nothing about criminal intent.” In the charge the judge instructed the jury that there must be an intent to defraud in order to constitute the crime of forgery, and then defined the term, defraud, “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.”

Criminal intent is essential to constitute the crime, and the testimony bearing thereon is always a question for the jury. (Duffy v. People, 26 N. Y. 588-593; Stokes v. People, 53 N. Y. 164; People v. Powell, 63 N. Y. 88; People v. Flack, 125 N. Y. 324.)

It follows that the court should have charged as requested. It is urged, however, that the refusal to so charge did no harm, and that the charge as made sufficiently covered the ground. But we are all of the opinion that the charge as made, taken in connection with the remarks of the court and its refusal to charge as requested, was confusing, and rendered uncertain the question as to whether “ criminal-intent ” was or was not essential in order to constitute the crime.

The judgment of the General Term should be affirmed.

All concur.

Judgment affirmed.  