
    Supreme Court—General Term—first Department.
    January, 1883.
    PEOPLE v. RYLAND.
    Evidence—Corroboration of Accomplice.—Section 399, Code of Criminal Procedure.—Married Woman.—Coercion.
    The only evidence other than the testimony of an accomplice, tending to connect defendant with the commission of the crime of forgery charged in the indictment, was testimony showing that on a certain evening she obtained the check from the complaining witness upon a presumedly false representation that she wished to purchase a check to send to her sister or mother that evening; that said check was by her obtained under a fictitious name, and was on the day but one thereafter, presented to the bank in its raised and altered condition, and paid within so short a time after it was obtained as almost to preclude the possibility of its having been sent to the place where she stated it was to go. Held, that as such evidence was sufficient to put defendant on explanation, it tended to connect her with the commission of the crime, and furnished sufficient corroboration of the accomplice, under section 399 of the Code of Criminal Procedure; especially as her own evidence failed to explain or contradict it.
    The evidence in this case tended to show a confederation of several parties to take various steps intended to and which did result in the perpetration of a crime, and that the participation of each was prearranged—the appellant, a married woman, to procure the check to be altered; her husband to make the alteration; the accomplice to get the money upon it; and the several parties to divide the proceeds, all of which was done. Held, that the question whether the appellant was a principal party or merely an accessory, was properly submitted to the jury; and also that it would have been error to withhold the case from the jury on the ground of coverture or coercion.
    Appeal by the defendant from judgment of General Sessions.
    The defendant was jointly indicted with her husband and another, and was convicted in the Court of General Sessions of New York, oh May 18, 1882, before Hon. Frederick Smyth, Recorder, and a jury, of the crime of forgery in the third degree, and was sentenced to imprisonment in the penitentiary for the term of two years and six months. The indictment charged defendant with having forged a check on the North River Bank, for the sum of $165.50, drawn by Demarest & Duncan.
    George S. Duncan, of the firm of Demarest & Duncan, grocers, doing business at No. 1525 Third avenue, on behalf of the prosecution, testified that, on the evening of April 20,1882, the prisoner called at his store ; that she was alone; and, representing to him that “ she wished to purchase a check, as the post-office was closed up, to send six dollars to her sister or mother, in Philadelphia, and it would accommodate her very much to get it off that evening,” added, “ will you oblige me with a check for six dollars in exchange for money ? ” That, thereupon, he gave her the check of his firm for that amount. The witness identified a check on the North River Bank, (where the firm kept an account), produced in evidence, and purporting to be payable to the order of, and indorsed by, George S. Martin, for $165.50, as being the check which he had given the prisoner; but deposed, that all which remained of the same, as originally written, was the date and signature. It otherwise appeared, that the name of the person to whom the check was originally made payable was, “ Georgiana Mace.” The paying teller of the North River Bank, in behalf of the prosecution, testified that the check in evidence, as thus altered and raised, had been presented at the bank on April 22, by one Woodman, and paid to him by the witness. Charles Crawford, an admitted accomplice in the transaction, testified on behalf of the prosecution, to the following state of facts : That, on the day when the check was procured, and about four hours prior thereto, he was at the house of the prisoner, No. 13 Varick place, and in company with herself and husband, Edward C. Ryland ; that addressing her husband and himself, the prisoner said, “ I guess I will try and go up to Demarest & Duncan and get a check/’ and thereupon she started out with the former; that, thereafter they returned to the house, and, as they came in, the prisoner said, “ she had got itand then handed the check to her husband ; that the check so produced (and identified by the witness as the one in proof), then read, “ Pay to the order of Georgiana Mace, xthe sum of six dollars,” and was signed by Demarest & Duncan ; that, upon the check being delivered to him, prisoner’s husband, in her presence, proceeded to use chemicals in erasing the writing as to the amount, when witness left; that, on the next morning, in the same house, Mr. Ityland gave him, witness, the check “to look at,” in the presence of the prisoner and Woodman, the alteration and erasing being then finished, and the writing in the condition in which it was in proof; that, in the presence of the prisoner, Mr. Ryland handed the forged instrument to himself, and he handed it to Woodman, when they both proceeded to the North River Bank, where Woodman presented the same for payment, and received the money; that witness, upon his and Woodman’s return, divided the spoils; giving the prisoner $74 thereof, $31 to Woodman, and retaining $60 for himself.
    The prisoner elected to be sworn as a witness in her own behalf, and testified that, on the evening when the check was procured, she had gone to visit a friend with her husband, having no intention when she left her house of getting a check, and on her way home,—after mentioning to him a sum of money she owed, and asking him if she might send it, and being told by him, “ Go into that store and get a check for six dollars,”—she had entered the store, procured the check, given it to him, and received it back from him when she got home; she also specifically contradicted Crawford’s statement as to what she said, when leaving the house, about seeing if she could get a check from Demarest & Duncan.
    The defendant also put in evidence the certificate of her marriage with Edward C. Ryland.
    At the close of the case, defendant’s counsel requested the court to advise the jury to acquit the defendant on the following grounds: First. On the ground of coercion by the husband ; Second. That the testimony of the accomplice had not been corroborated; Third. That it had not been proved that defendant was a principal in either the first or second degree. The court refused to charge each request, and counsel duly excepted.
    
      
      Peter Mitchell, for appellant.
    The court erred in refusing to advise the jury to acquit’the defendant on the ground that she was a married woman, and was under the coercion of her husband. 1 Bish. Crim. Law, 7 ed. § 359, and authorities cited in note h ; Rex v. Knight, 1 Car. & P. 116, note; Connolly’s Case, 2 Lewin, 229. Where a presumption is raised in favor of a wife being coerced into the commission of a crime, by her husband, the presumption becomes fixed and permanent, unless it is overcome by proof, which was not done in this case. 1 Greenl Ev. 12 ed. §12, note 1; Pest on Presumptions (5th London ed.) § 428. Defendant cannot be held accountable for any act done, in her presence, by her husband, and, more particularly so, when the act only consisted of making erasures in the check in question, because scratching the name of the payee and amount out of the check was not an offense against the statute.
    The court erred in refusing to advise the jury to acquit the defendant on the ground that the accomplice was not corroborated.
    The defendant did not make any part of the forged instrument, nor did she alter it, nor was she present when her husband forged it. Therefore she is not a principal in either the first or second degree. 1 Bish. Crim. Law, 7 ed. § 650, and authorities cited in notes 7 and 8.
    If it could be held that defendant went and got the check, possessing knowledge that it was to be forged by her husband, she could only be prosecuted as an accessory before the fact, to the forgery. Rex v. Soares, 2 East P. C. 974; Russell & R. C. C. 25.
    
      John McKeon, district attorney; A. J. Requier (assistant), for the People, respondent.
    The law is well settled that coverture is no protection when the wife is shown to have taken an active and willing part in the commission of the crime—Gold-stein v. People, 82 N. Y. 233; and that the coercion inferred from the bare fact of the husband’s presence is only a prima facie presumption,—so that “ if it appear that she was not urged or drawn to the offense by him, but was an inciter of it, she is guilty as well as he.” In other words, if she commit the crime 
      “ of her own will, or by the bare command of her husband, or his procurement, she is liable as well as he.” Seiler v. People, 77 N. Y. 413. Section 399 of the Code of Criminal Procedure is in derogation of the common law, and must be held to- alter or vary the common law no farther than its terms absolutely require. In re N. Y. & Harlem R. R. v. Kip, 46 N. Y. 551. The section means that, besides the proof which an accomplice (whether corroborated or not) may furnish of the particular circumstances attending the commission of the crime* there roust be, to authorize a conviction, such other evidence as simply lends to connect the defendant with its perpetration. The provision explicitly says all that it means; and it cannot be extended beyond its words.
    As to the legal effect of the prisoner electing to be examined as a witness on her own behalf : While it is at the option, under Laws of 1869, chapter 678, § 1, of one, on trial for a criminal offense, to become a witness in his own behalf, and while his neglect or refusal to testify will not create any presumption against him,—yet, when he has exercised his option' and chosen to become a witness, he is made competent for all purposes in the case ; and if, by his own testimony, he can, if innocent, explain and rebut a fact tending to show his guilt, and he fails to do so, the same adverse presumption arises from such failure on his part, as would arise from the failure of any other witness, and tends to show an “ absence of innocence,” or guilt of the witness. Stover v. People, 56 N. Y. 320; Brulo v. People, 16 Hun, 120; People v. Dyle, 21 N. Y. 578, 581. Even if the prisoner had not been present, as she undoubtedly was, at the altering and raising of the check, after she procured it by artifice, for that felonious purpose, the rule, is, “ Where several acts constitute, together, one crime, if each is separately performed by a different individual in the absence of the rest, all are principals as to the whole.” 1 Bishop Crim. Law, § 650. To constitute one a principal in a felony, he must be present at the consummation of it. But he need not be so near as to be an eye and ear witness of the criminal act. His presence may be constructive, and that constructive presence is made out when it is shown that he acted with another in the pursuance of a common design; that he acted at one and the same time, for the fulfillment of the same preconcerted end, and was so situated as to be able to give aid to his associate with a view to ensure the success of the common enterprise.” McCarney v. People, 88 N. Y. 412.
   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 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 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 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 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.  