
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    June, 1907.
    THE PEOPLE v. JAMES S. ALDERDICE.
    (120 App. Div. 368.)
    (1) . Forgery—First Degree—Indictment.
    An indictment for forgery in the first degree alleging that with Intent to defraud the defendant feloniously did forge a certain deed of conveyance purporting to be the act of one O., by which certain rights and interests in real propertypurported to be conveyed, charged and affected, and setting out the conveyance in full, is not defective as failing to allege the facts constituting the crime.
    (2) . Same.
    Such indictment may also contain a count charging the defendant with uttering the forged instrument with intent to defraud.
    (3) . Same.
    An indictment for forgery conforming to the language of the statute defining the crime is good.
    (4) . Same—Evidence.
    Evidence that the person whose name was forged stated to a witness, after parting with title, that she had given the land to a person named is inadmissible, being hearsay and not a declaration against interest. In any event, such evidence is not admissible when it appears that the property referred to was not the property the conveyance of which was forged.
    (6). Same.
    When it appears that the forged deed was preparecl'in the law office of the defendant and placed on record through his efforts and under his directions, etc., it is noterror for the court to refuse to direct an acquittal.
    Appeal by the defendant, James S. Alderdice, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 23d day of June, 1905, convicting him of the crime of forgery in the first degree.
    
      Charles JE. Le Barbier, for the appellant.
    
      
      E. Crosby Kindleberger, for the respondent.
   Lambebt, J.:

The defendant was charged in the indictment with the crime of forgery in the first degree. The crime was alleged to have been committed on the 21st day of November, 1903, the indictment alleging that “ with intent to defraud,” the defendant “ feloniously did forge a certain deed and indenture of conveyance, purporting to be the act of one Mary J. Oliver, by which certain rights and interest in real property purported to be transferred, conveyed, charged and affected,” and the indictment then sets out the deed in full. In five subsequent counts the indictment charges the same crime in different forms, all based upon the same alleged forged deed, and there is no doubt of the authority for such an indictment. (People v. Adler, 140 N. Y. 331.) The defendant urges, however, that the indictment is fatally defective, in that it does not allege the facts constituting the crime, his contention appearing to be that it is necessary to a good indictment that it should charge the commission of the particular act constituting the forgery, as, for instance, that the deed in question was forged by the defendant by subscribing the name of Mary J. Oliver to the same without her authority, or by falsely and fraudulently signing the name of the person who is alleged to have taken the acknowledgment. We are of the opinion, however, that this is not required by the provisions of section 275 of the Code of Criminal Procedure. The requirement of the Code is that the indictment shall contain a “ plain and concise statement of the act constituting the crime, without unnecessary repetition,” and when the indictment charges that the defendant “ feloniously did forge a certain deed,” and that this was done with intent to defraud,” and then sets out the deed in full, it is a sufficient compliance with the statute. (Rosekrans v. People, 3 Hun, 288; People v. Dewey, 35 id. 311; People v. Hertz, 35 Misc. Rep. 177; People v. Clements, 26 N. Y. 193.) In the latter case it was held that a certified check on a bank is an instrument which, as an entirety, comes within the statute of forgery, and that where evidence, received without objection, shows that any material part of it was forged, e. g., the certificate, it is immaterial that the indictment does not specify that the forgery was of the certification, and not of the check iself.

In the case now before us the second count of the indictment charges that the defendant “ with intent to defraud, did feloniously utter, dispose of and put off. as true a certain forged deed and indenture of conveyance purporting to be the act of one Mary J. Oliver by which certain rights and interest in real property purported to be transferred, conveyed, charged and affected, being the same forged instrument and writing set forth in the first count of this indictment, to which reference is hereby made, the said James S. Alderdice then and there well knowing the same to be forged, against the form of the statute in such case made and provided,” etc. Obviously under this count it was competent to show that the deed was in fact a forged deed, whether the forgery was committed by the defendant or another, and that the defendant uttered the same knowing it to be a forgery and with intent to defraud, and the indictment charged all of the facts necessary to constitute the crime of forgery in the first degree. The facts established by the evidence showed the defendant to have uttered the forged deed, and the indictment being sufficient, there is no merit to his contention that he has been denied all the protection which it was the design of the law to afford one accused of crime. Moreover, the indictment in each of its several counts closely conforms to the language of the statute defining the crime of forgery in the first degree, and a long line of cases hold that such an' indictment is good. (People v. Herlihy, 66 App. Div. 540; People v. Adams, 85 id. 393; 176 N. Y. 351; People v. Williams, 149 id 1.)

Section 542 of the Code of Criminal Procedure 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,” and tried by this standard we find no reversible error in this case. The effort of the defendant to prove by Louisa Heine that Mrs. Oliver had told the witness that she had given certain property to Miss Alderdice, was an offer of hearsay testimony, and it was not a declaration against interest for if she had parted with the ownership of the property she had no interest which could be affected, and the alleged declaration was mere hearsay evidence, which did not tend to prove that the instrument was not forged. Beyond this it is quite clear that the witness was not intending to testify as to the property involved in Exhibit A, on which the indictment rested, but related to other property owned by Mrs. Oliver. It does not appear that the property talked about was covered by the other deeds alleged to have been forged, but which were in the case merely as showing the criminal tendency of the defendant. This would not tend to show that the deed set out as Exhibit A was not forged, and this was the material issue in the case.

The exception taken to the refusal of the court to dismiss or advise the jury to acquit the defendant at the close of the evidence, on the ground there was not any proof of uttering the alleged forged deed by the defendant, cannot be sustained. If the state of the proof justified the position taken at the trial and much argued on this appeal it would, of course, be fatal to this judgment; but it appeared by the cross-examination that the deed was prepared in his law office and presumably under his directions, and that after its execution it was placed on record through his efforts and directions or very soon after the death of the grantor, and after the defendant was advised that trouble would result from the transaction. The record is replete with circumstances indicating that the defendant was the active agent in bringing into being the instrument declared by the jury to be a forgery.

The remaining exceptions urged are largely based upon the theory that the defendant was entitled to have presented, if any, a different indictment from that which was found; that evidence which went to the support of the various counts was not properly massed against him in the general verdict. But it seems clear that • as the indictment conformed to all the requirements of the law, it was proper to introduce evidence to establish all the facts necessary to constitute the crime of forgery in the first degree under any or all of the counts; and that there is no tangible objection to the methods employed upon the trial. The evidence, independent of all the objections and exceptions, is sufficient to establish beyond a reasonable doubt the crime charged, and as we find no error which prejudiced any substantial right of the defendant, we reach the conclusion that the judgment appealed from should be affirmed. ,

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Judgment affirmed. 
      
       See Penal Code, §§ 509, 531.—[Rep.
     