
    The People, Resp’ts, v. Frank W. Clark, App’lt
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    1. Criminal law—Second offense—Evidence.
    Upon the trial of an indictment for a second offense of forgery, a clerk of the court was called for the purpose of proving the former .conviction from the court records, which showed that two indictments against defendant on the same day had been filed, and that on one only had he been found guilty and convicted. Held, that it was not error for the clerk to state that two indictments had been filed, in answer to the question what the records showed, no objection having been made, exception taken, or motion made to strike out by defendant.
    
      2. Same.
    Where a conviction is sought on either of two counts of an indictment, evidence which is competent to prove the offense charged in one count is admissible, even if incompetent to prove the offense charged in the second.
    Appeal from a judgment of the court of general sessions of the peace, in and for the city and county of New York, entered upon the verdict of a jury finding the defendant guilty of the crime of forgery in the second degree as a second offense.
    
      Frank J. Kellar, for app’lt; De Lancey Nicoll (Henry B. B. Stapler, of counsel), for the People.
   O Brien, J.

The indictment contained two counts: the first tor having forged a check, and the second count for uttering the forged paper. The defendant was convicted upon the first count, and the grounds sought to be made available to reverse the judgment of conviction relate to alleged errors in the admission of evidence, and in certain statements made by the learned judge in his charge. The prosecution, upon the trial, showed that the defendant had previously been convicted of the crime of forgery on the indictment admitted in evidence, to which he had pleaded guilty, and upon which the judgment of the court was pronounced against the defendant, and that, in pursuance thereof, he was sent to the New York state reformatory. For the purpose of proving the former indictment and conviction, which was essential to sustain the first count of forgery for a second offense the records of the court were introduced, and, with the minutes of the court in his possession, the witness (a clerk thereof), testified that they showed, with respect to the first offense sought to be proved, that two indictments on the same day had been filed, to one of which the defendant pleaded not guilty, which plea was subsequently withdrawn, and the plea of guilty substituted by leave of the court, upon which judgment was pronounced, and the defendant sent to the state reformatory. This statement that two indictments were found on the same day is claimed to have been error, because on one indictment alone was he found guilty and sentenced. The objection, however, we think untenable, for the reason that the clerk was simply stating from the records, which were competent and admissible in evidence, undoubtedly, in answer to a question as to what they showed ; and at the time the statement was given no objection was made or exception taken, and no "motion afterwards made to strike it out. Nor can we see how it in any way prejudiced the prisoner. In addition to establishing the fact that the defendant was convicted of a former offense of forgery, the People offered evidence tending to prove that the defendant forged or uttered the forged paper for which he was then on trial. For this purpose, testimony was introduced of one of the officers of the National Exchange Bank to whom the check purporting to have been drawn by F.W. Kinsman & Co.,to the order of Frank du Bois, and indorsed with the latter name, was presented by the prisoner, who gave the name of Frank du Bois, and •deposited the check with the bank for the purpose of opening an account therewith. That this check was a forgery was abundantly proved. But in support of the two counts of the indictment as to whether or not the prisoner was guilty of having committed the forgery, or of uttering the forged paper, most of the testimony objected to was given. This testimony consisted of a number "of other checks, which were introduced by the prosecution, and admitted in evidence for the purpose of comparison of handwriting, the witnesses testifying that such checks were written in their presence by the prisoner, and delivered by him. These were objected to upon the ground of being immaterial, irrelevant and incompetent. Having regard to the form of the objection, if these were in any aspect material, relevant, and competent, then the objection falls, and the exception is of no avail. We think that these other checks which the witnesses had seen the prisoner sign were competent, not only for the purpose, as stated by the court, as evidence to go to the jury of the defendant’s personal presence at the various times and places mentioned by the witnesses, in rebuttal of his defense of an alibi, but that they were competent, in addition, upon the question of handwriting, and also upon the second count of the indictment, which charged the prisoner with having uttered a forged check.

It must be remembered that the People were endeavoring to prove one or both counts of the indictment, and, when the testimony was all in, the court presented the question as to whether the defendant was guilty of either of the two counts. Though we should, therefore, take the distinction which the appellant seeks to make as to the scope and effect of the case of People v. Everhardt, 104 N. Y., 591; 5 St. Rep., 793, as permitting the introduction of other forged checks for the purpose of showing guilty knowledge only in cases where the defendant is accused of uttering forged paper, but not in a case of forgery itself, he would not derive much comfort therefrom, because the People were engaged in establishing both counts of the indictment, and if this evidence was competent to establish either count, the objection thereto would not lie. Nor do we think there is any more force in the other objection made, that other exhibits which were introduced for the purpose of comparison of handwriting were incompetent, because whatever may have been the law formerly, by chapter 36 of the Laws of 1880, as amended by chapter 555 of the Laws of 1888, it is provided that “ comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed on the trial to have made or executed the disputed instrument or writing shall be permitted, and submitted to the court and jury in like manner.’’ McKay v. Lasher, 121 N. Y., 482 ; 31 St. Rep., 690; People v. Smith, 121 N. Y, 578 ; 31 St. Rep., 844.

Other errors claimed relate to certain statements made by the learned judge in his charge to the jury. No exception, however, was taken to the charge, or any portion of it; nor do we think, had there been, that there was any error in the charge, taking the remarks complained of in connection with the context and the subject to which they were directed. It will not do in a case to take an entire charge and pick therefrom isolated sentences, and, without having in any way excepted or called the judge’s attention to the subject, seek, by thus taking them out and disconnecting them from the other portions of the charge, after the trial and conviction of a prisoner, to make such available for the purpose of securing a -reversal; and it is only in cases where it can be clearly seen that the statements themselves were erroneous statements of law, and directly tended to prejudice the prisoner, that this court is called upon at all to consider them.

Upon the entire evidence, we have no question of the soundness of the verdict as to the prisoner’s guilt. It was proved in as satisfactory and as conclusive a manner as such a crime can be proven, and the attempt to establish an alibi, we think, was fairly and successfully assailed by the witnesses produced by the People. Under such circumstances, we have for our guide that section of the Criminal Code, § 542. which provides that, “ after hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” Upon this record there can be no doubt of the defendant’s guilt, and with this conviction forced upon us by our examination, in our judgment, there is not a single exception available excepit one. That relates to the admission of a question asked the witness Johnson, as to whether the check which he testified the defendant had handed to him at the time had written upon it the words, “ No account,’’ together with certain figures in pinkish ink. The objection to this question, w'e think, was good because it was entirely immaterial and irrelevant, and, were it not for the overwhelming evidence in the case, could not be held to be entirely harmless. We do not believe, however, that the answer to this one question in any way affected the substantial rights of the prisoner, and, therefore, we think that to disregard this technical error or defect is in consonance, under the facts as here proven, with justice, and complies with the provisions of the Code requiring us to give judgment notwithstanding such technical errors provided the substantial rights of the prisoner are not affected. We think that the judgment of conviction was right, and that it should be affirmed.

Van Brunt, P. J., and Lawrence, J., concur.  