
    Supreme Court—Appellate Division—Third Department.
    May, 1905.
    THE PEOPLE v. THOMAS F. McGOVERN.
    (105 App. Div. 296.)
    Forgery—Trial—Evidence.
    On the trial of an indictment, charging the bookkeeper of a corporation with forgery in having raised a check of the corporation, he testified in his own behalf that he was authorized to raise the check by the president of the corporation, who was not sworn as a witness by either side and whose absence was not explained. Held, that the evidence r.f the president would presumably have been favorable to the prosecution and adverse to the defendant, and it was error for the court to charge the jury that they could infer anything against the defendant by reason of his failure to call the president, and a charge that “if you can determine from the evidence any presumption in favor of either of one or the other from that fact I will leave it for you to say why he was not called on either side” was reversible error.
    Appeal by the defendant, Thomas F. McGovern, from a. judgment of the County Court of Madison county, entered in the office of the clerk of the county of Madison on the 8th day of June, 1904, upon the verdict of a jury convicting the defendant of the crime of forgery in the second degree, and also from an order of said court ¡¡made on the 15th day of June, 1904, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.
    Joseph D. Senn, for the appellant.
    M. H. Kiley and E. W. Cushman, for the respondent.
   Chester, J.:

The defendant was employed as a, bookkeeper in the office of the Oneida Silverware Manufacturing Company. In the indictment under which he was tried he was charged with committing the crime of forgery in the second dogree by raising a check of said company payable to his order from four dollars to fourteen dollars and uttering the same with intent to defraud such company. Under the custom of that company checks were supplied to the defendant, signed by its treasurer in blank, but the checks were not good until they were countersigned by one S. W. Moore, its president. The written portions of the check other than the signatures, were in. the defendant’s handwriting. On the trial he was sworn as a witness in his own behalf and testified that after he had drawn the check for four dollars he presented it to the president for countersignature, but asked his permission to increase the amount to fourteen dollars, and that such permission was given; that the defendant thereupon raised the check by adding the letters “teen” to the word “ Four ” and inserting the figure “ 1 ” before the figure “ 4,” before such check was countersigned by the president. The president, Moore, was not sworn as a witness by either side. There is nothing in the record showing why he was not called or that he was not available as a witness for the People either in chief or in rebuttal of the defendant’s testimony. After the court had concluded its main charge to the jury, the following occurred: “ Mr. Perry (defendant’s counsel) : I ask your Honor to charge the jury that the failure of the People to call the president of this company—that the jury have the-right to conclude or find that from the failure of the People to call the president of this company they have the right to find that his evidence would have been favorable to this defendant.- The Court: I doubt that very much as an abstract proposition. I will charge it. Mr. Kiley (District Attorney) : I except to it. The Court: Then I charge you, gentlemen, you have the right to take into account as evidence on both sides, if it is true that Moore did authorize it. You have the right to take into account that neither party has called this man Moore, neither the defendant nor the People. If you can determine from the evidence any presumption in favor of either one or the other form that fact I will leave it for you to say why he was not called on either side. Mr. Perry: I ask your Honor to be permitted to take an exception wherein you submit the proposition that anything is to be inferred against the defendant for not calling the president. The Court: I will leave i: to the jury to say.”

It will be observed from this quotation from the record that the learned court charged with some hesitation that the jury had the right to find from the failure of the People to call the president of the company that his evidence would have been favorable to the defendant. If the matter had stopped there the defendant could not have been prejudiced by the charge. But the court then told the jury that they had the right to take into account that neither party had called Moore, and said to them: “ If you can determine from the evidence any presumption in favor of either one or tire other from that fact I will leave it for you to say why he was not called on either side.” Of course, if the jury drew any inference in favor of the prosecution by reason of such failure such inference would be one against the defendant. The defendant’s counsel excepted t'o the statement of the court permitting the jury to infer anything against the defendant for not calling the president, and the court in the face of this exception left it to the jury to say.

The rule undoubtedly is that if a party fails to produce a person known to be friendly to him and to his cause, and who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favorable to such party. (Milliman v. Rochester R. Co., 3 App. Div. 109.) Substantially the same principle has been applied in criminal cases. (Gordon v. People, 33 N. Y. 501; People v. Sweeney, 41 Hun, 332, 4 N. Y. Crim. 275.) But the failure of a party to call an adverse witness does not raise an unfavorable presumption against the party. (Coykendall v. Eaton, 42 How. Pr. 378, 383.)

Moore was president of the company which the defendant was charged with defrauding. Presumably, if called, he would have given evidence in favor of the prosecution. He would naturally be a witness adverse to the defendant and for this reason the latter was not bound to call him. That being so, it was error to permit the jury to infer anything against the defendant hy reason of his not calling him.

In view of the doubt expressed by the court as to- the correctness of the proposition which he did charge and of the error pointed out we are unable to say that the defendant was not prejudiced. We think he is entitled to a new trial.

The judgment of conviction should be reversed and a new trial granted.

All concurred.

Conviction and judgment of the County Court of Madison county reversed and a new trial ordered, and the clerk directed to enter judgment and- remit certified copy thereof with the return and decision of this court to such County Court pursuant to sections 547 and 548 of the Code of Criminal Procedure.  