
    The People of the State of New York, Resp’ts, v. Parsons De Kroft, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Criminal law—Forgery—Proof of signature—Evidence—Competency of.
    On the trial of the defendant, under an indictment for forging the name of Jacob Vogt, to a note on which he obtained money, he testified that said name was written by Mrs. Mary Vogt, and Mrs. Vogt testified that she wrote the name of Jacob Vogt on said note. While Mrs. Vogt was being cross-examined by the district-attorney, she was asked to write the name of Jacob Vogt, and did write it in the presence of the court and jury upon a slip of paper, which slip was put in evidence by the district-attorney. Held, that it was properly allowed in evidence. That it was competent on the question of the witness’ veracity.
    3. Same—When not competent.
    The rule does not permit a party, the genuineness of whose signature is in dispute, to write his name in the presence of the court and jury, and then give it in evidence in his own behalf, for the jury to institute a comparison between it and the one in question.
    3. Same—When note with forged signature errased competent.
    The note produced and given in evidence on the trial corresponded with the note set out in the indictment. When produced, the signatures had been erased, but such erasure took place after its payment by the endorser, and the signature could be read under the erasure marks. Held, that there was no error in receiving it over the objection that it did not correspond with the instrument set out in the indictment.
    4. Same—Chattel mortgage—Forged name—Admissibility as evidence.
    At the same time to secure said note a chattel mortgage was executed, to which defendant forged the same name of Jacob Vogt. Held, it was competent for the people to prove that defendant signed said name to the chattel mortgage. That it was part of the business that was transacted at the time the note was made and put in circulation. That it was relevant and material.
    An appeal from a judgment of the Monroe county court of sessions entered upon a verdict convicting the defendant of the crime of forgery in the second degree, and from an order of the same court denying the defendant’s motion for a new trial. The indictment contained two counts. In the first the defendant is charged with forging and counterfeiting an instrument in writing, of which the following is a copy:
    “ $25. Rochester, N. Y., Jan. 19, 1887.
    “ Three months after date we promise to pay to the order of Raleigh Farrar, twenty-five dollars at the Union Bank. Value received, with interest.
    [Signed] .Jacob Vogt. Mrs. Mary Vogt.”
    
      In the second count he is charged with uttering and pub- - listing as true the same instrument. In each count the charge is, that the act was done with a view to cheat and defraud Jacob Vogt, and Raleigh Farrar, and the Union Bank.
    The people’s evidence tended to prove, that the defendant and Mary Vogt applied to the payee ot the.note for the loan of twenty-five dollars, for the repayment of which they offered to secure him by a chattel mortgage, on cer tain household goods owned by Jacob Vogt; that Farrar declined to loan the money on his account but offered to endorse a note for their accommodation and procure its discount by the Union Bank, and to take from them a mortgage securing him against his liability as endorser. This arrangement was assented to by the defendant and Mrs. Vogt. The note set forth in the indictment, was prepared, and the people’s evidence tended to prove, that the defendant signed thereto the name of Jacob Vogt, and that Mrs. Vogt, placed her own name thereto in the presence of the defendant. The chattel mortgage was executed and delivered, the note discounted and the avails paid to Mrs. Vogt. A receipt was executed acknowledging the payment of the proceeds ($24.75) to which the defendant wrote the name of Jacob Vogt and the same was also signed by Mrs. Mary Vogt.
    During the negotiations, the defendant personated Jacob Vogt, who was the husband of Mary Vogt. The defendant was sentenced to be confined in the Auburn State Prison for the period ot five years.
    
      W. Henry Davis, for app’lt; George A. Benton, district attorney, for resp’ts.
   Barker, P. J.

The people’s evidence satisfactorily established, that the defendant, without authority, signed the name of Jacob Vogt to the note set forth in the indictment, .and procured the payee named therein to endorse the same .and at the same time represented himself to be Jacob Vogt. The evidence in support of the second count of the indictment is no less convicting and sustains all the charges therein set forth, Most of the exceptions upon which the defendant relies for the purpose of securing a reversal of the judgment, were taken to the rulings of the trial court in receiving evidence to which he objected as incompetent and irrelevant. No claim is made by the defendant, that the signature of Jacob Vogt to the note was genuine, or that he was authorized to execute the same in his name ■and behalf. He attempts to meet the charge, by denying that he wrote the name of Jacob Vogt to the note, and claims that the same was written by Mrs. Mary Vogt, and that he at the same time signed the name of Mary Vogt to the instrument with her consent and approval. This was the only question of fact seriously in dispute upon the trial. The defendant and Mrs. Mary Vogt, were both witnesses and testified that the note was executed in that way and manner

While Mrs. Vogt was being cross examined by the district, attorney one of the jurors, with the consent of the court, asked her to write her own and her husband’s name on a slip of paper, which she did.

The defendant’s counsel objected to the signatures being put in evidence for the purpose of testing the signatures by comparison, which was overruled and the signatures received and the defendant objected. We think the evidence was competent under the common law rules for the purpose of testing the veracity of the witness. The district attorney so offering the signatures in evidence, made the interrogatories propounded by the juror and the signatures written by the witness a part of his cross-examination, and the correctness of the ruling may be properly challenged by the defendant.

The defendant’s counsel attempts to sustain his objection and exception by the rule of evidence adopted and in force in this state prior to the enactment of chapter, 36 of the laws of 1880, that when the genuiness of a signature to an instruís in dispute, other signatures cannot be given in evidence which are genuine to enable the jury to compare the same with the one in dispute; and that no documents can be used for the purpose of making a comparison except such as have already been put in evidence for other legitimate puposes. Two reason have been assigned for the support of the rule mentioned, viz; First, the danger of fraud in the selection of the writings, offered as specimens for the occasion; Second, that, if admitted, the genuiness of these specimens-may be contested, and others successively introduced, to-the infinite multiplication of collateral issues, and the subversion of the justice. To which Mr. Greenleaf, m his work on evidence, added another, to wit: the danger of surprise-upon the other party, who may not know what documents are to be produced, and, therefore, may not be prepared to meet the inferences drawn from them. Van Wyck v. McIntosh, 14 N. Y., 439, Doe v. Newton, 5 A. & E., 514;: 1 Greenleaf on Evidence, § 580.

But these objections do not apply and the rule is not applicable where the signature offered in evidence was written in the presence of the court and jury by the person whose signature is in dispute as in this case. The issue to wdiicli the evidence related was, whether the witness or the defendant wrote the name of Jacob Vogt to the instrument set forth in the indictment. The witness was called by the defendant to prove that he did not, and that she did, write the name of Jacob Vogt to the note, and also that the defendant did and that she did not sign her own name thereto.

If the district-attorney was willing to take the risk of such evidence, the defendant cannot complain that this method was adopted for the purpose of testing the truthfulness of the defendant’s own witness.

There is authority to be found in the decisions of this and other states, in support of the argument, that the signatures made by the witness during her cross-examination, in the presence of the court and jury, was competent evidence on the question of the witness’ veracity.

In Bronner v. Loomis (14 Hun, 341), the action was on a promissory note, claimed by the plaintiff to have been made by the defendant, who interposed the defense that her signature thereto was a forgery. The defendant was examined as a witness in her own behalf, and on her cross-examination, she, at the request of the plaintiff, wrote her name on a slip of paper, which was received in evidence on the plaintiff’s offer, and over the defendant’s objection, and it was held to be competent evidence. In that case, as in this, the inquiry was, whether the signature in question was or was not that of the witness, who had testified on the direct examination that it was not.

In Chandler v. LeBarron (45 Me., 534), it was held that a writing made in the presence of a court and jury, by the party whose signature is in dispute, may be submitted to the jury for the purpose of comparison.

In the case of Doe v. Wilson (10 Moore Priv. Counsel cases, 502), that tribunal in its opinion said, “their lordships have no doubt that, if on the trial at nisprius, the witness denies the signature to a document produced in evidence, and, upon being desired to write his name, has done so in open court, such writing might be treated as evidence in the case and be submitted to a jury, who may compare it with the alleged signature to the document.”

We think the court below committed no error in allowing the signatures to be introduced in evidence, under the circumstances of this case. We may properly add in this connection, that the rule as stated, does not permit a party, the genuineness of whose signature is in dispute, to write his name in the presence of the court and jury, and then give it in evidence in his own behalf, for the jury to institute a comparison between it and the one in question. The party so situated would be under a great temptation, to produce a signature in appearance, altogether dissimilar to the one sought to be sustained by the adverse party as genuine. King v. Donahue, 110 Mass., 155.

The district attorney, in his argument in support of the competency of the evidence objected to, contends that by the provisions of chapter 36, Laws of 1880, the evidence was made competent, even if the same was not by the common law rule which previously prevailed in this state. It may be that the act referred to is broad enough in its provision to make the evidence competent, but we prefer to place our decision on the ground already stated.

The note produced and given in evidence on the trial corresponded with the note set out in the indictment. When produced, the signatures of Mrs. Mary Vogt and the indorser Raleigh Farrar, the payee, were both erased, but the evidence fairly shows that the erasures took place after the note was paid to the bank by the indorser, and that the signatures can now be read under the erasure marks. There was no error in receiving the note m evidence over the objection made by the defendant that it did not correspond with the instrument set out in the indictment.

The district attorney was allowed to prove that the defendant signed the name of Jacob Vogt to the chattel mortgage. It was competent for the people to prove that fact. •It was a part of the business that was transacted at the time the note wTas made and put in circulation and was clearly competent, although it proved that the defendant had committed another offense of the same nature at the same time. The evidence was relevant and_ material for the purpose of proving the offense charged in the indictment. Hope v The People, 83 N. Y. 418.

We have examined the whole record with care and fail to discover any error. The evidence is very convincing in its character and leaves no doubt in our minds as to the guilt of the' defendant, and the judgment and the order should be affirmed.

Haight, Bradley and Dwight, JJ., concur.  