
    James Watson, plaintiff in error, vs. The People, defendants in error.
    On the trial of the plaintiff in error upon an indictment for forging a check upon a bank, purporting, to be drawn by 0. <fc Go., the teller was asked whether 0. & Go. kept an account at that bank, and answered in the negative. The check being shown to the witness, he was asked if he ever saw it before— if it was ever presented to him, at the bank. He replied that it was his impression that it was presented to him. Being further asked if the payees of the check had an account at the bank, at the date of such check, he replied in the negative. It was objected that the evidence of the teller had a tendency to prove a different offence from that charged; viz., obtaining goods by false pretenses. Held that the attempt to obtain the property of the payees by this forged check was, in a minor sense, the crime of “ false pretences ;” and if the evidence tended to prove the minor offence, it was because the greater crime, in this instance, involved the latter. That the fact that neither the persons purporting to be the drawers, nor the indorsers, of the check, had any account with the bank, was a part of the history of the check alleged to have been forged, and so became connected with the alleged crime.
    Although it was not proved, on the trial, that the prisoner wrote or signed the forged check, yet there were circumstances tending strongly to establish that he fraudulently uttered it. He left with an expressman a sealed envelope, directed to 0. & Sons, the payees, containing the check, and an order on C. & Sons to deliver certain specified gold leaf to the bearer,'and to receipt the bill. He also requested the expressman to deliver the letter, and get from C. & Sons a box, which he was to convey to a certain hotel. The expressman performed his directions, carried the box to the hotel, where the prisoner met him, claimed and received the .box, and paid the express charges. Held this evidence was sufficient, to be submitted to the jury, to connect the prisoner with the offence; and justified the denial qf a motion to discharge him.
    The recorder charged the jury, in substance, that the evidence of the prisoner’s guilt was irresistible, to his mind, laying out of view the testimony of the prisoner in his own behalf; adding, however, in the next sentence, that his opinion had nothing to do with their deliberations, and they must judge for themselves, irrespective of his opinion. Held that this was an interference with the province of the jury, and it would have been better to have omitted an expression of opinion by the court; but that the whole subject was so submitted by these two clauses of the charge that the jury must have decided the case independently,
    ERROR to the ]STew-York Court of General Sessions. The prisoner was indicted for forging a bank check of which the following is a copy:
    
      “No. 4971. New York, March 13th, 1872.
    Chemical National Bank:
    Pay to the order of Robert Cottier and Sons, two hundred and thirty-seven dollars.
    $237.00. J. Edwin Conant & Co.”
    The second count charged the prisoner with uttering and publishing a false and forged check on the same bank, purporting to have been issued by J. Edwin Conant & Co., with intent to injure Robert Cottier, senior, Robert Cottier, junior, Charles S. Cottier and other persons. The cause was tried before Recorder Hackett and a jury.
    The check was produced at the trial, and proven to be a forgery.- Robert Cottier, a manufacturer of gold leaf, testified that on the 13th of March he received the check from the hands of William Watson, an expressman. The check, when so received, was in an envelope with a letter. The envelope, letter and check were identified by this witness. A box was delivered by Cottier to the ex-pressman, as requested in the letter. Edward Keating, an employee of William Watson, testified that on the 13th of March, when his employer was out of his office, “the prisoner at the bar” came in-and left a letter in an envelope, and a business card, which witness delivered to his employer, as requested by the prisoner, who said there was a box to be taken to the St. Denis hotel. William Watson, expressman, testified that on the 13th of March, on his return to his store, the salesman in the store delivered to him. an envelope, which he then took to Mr. Robert Cottier, to whom it was addressed. A box with some gold leaf in it was then delivered by Cot-tier to Watson, who took it to the St. Denis hotel, where the defendant was waiting for it, and claimed it, paying at the same time the express charge.
    The jury rendered a general verdict of guilty.
    
      John O. Mott, for the plaintiff in error.
    I. The court erred in allowing the district attorney to ask the witness, Jacob 0. Parsons, teller in the Chemical National Bank, the following question, viz : “ Q. At that date, was there any account in that bank of J. Edwin Conant & Co. ?” It in no way tended to prove the check to be a forgery or false check. The check might have been genuine, and yet the drawer have no account with the bank. It is not a necessary element, that the drawer of a check or bilí of exchange shall, at the time of drawing the check or bill, have funds with the drawee. The check or draft is not void because the drawer has no funds with the drawee. Bank checks are, in substance, bills of exchange, payable on demand. If payable at a future day, it is not properly a check, but a biE of exchange entitled to days of grace. The fact that it is drawn on a bank does not determine its character. (Edwards on Bills and Prom. Notes, p. 57, 2d ed., and cases there cited.) It tended to prove a different crime from that charged in the indictment. It had no relevancy to the crime charged in either count in the indictment, It was calculated to prove the crime of false pretences, in obtaining property by the issuing a check upon a bank where the drawer and purchaser had no funds or account, in order to obtain from the person to whom it was deHvered the possession of the property. (2 P. S. 677, § 55, False Tokens and Pretences.) Obtaining goods by giving in payment a check upon a banker with whom the party keeps no account, and which he knows wiH not be paid, was held within the 30 Geo'. 2, chap. 24. (Rex v. Jackson, 3 Campb. 370. Amer. Crim, Law, [Wharton,] § 2107, 4th ed.) The 30 Geo. 2, chap, 24, enacts “That aE persons who shall obtain money from others by false pretences, with intent to cheat or defraud such persons, shall be deemed offenders against the pubEc peace. ’ ’ 2 Russ, on Crimes, 288.) This statute was against “obtaining money” only, whEe our statute is against “ obtaining the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing.” It has been repeatedly held in this State, that drawing a check upon a bank, where the drawer did not keep an account, and had no reason to suppose the check would be paid, in payment for property delivered, was within this statute. This evidence was competent to prove that, and nothing more; it had no relevancy to the question upon trial—whether the check was forged, or whether it was uttered, knowing it to be forged. This proof in no possible way tended to prove either charge. The rules of evidence are the same in criminal as civil cases. (2 Russ. on Crimes, 725.) If one offence only be charged, and the proof be given of the commission of one such offence, proof of another distinct offence of the same kind cannot be given. (The People v. Hop-son, 1 Denio, 574.) If this will not be allowed, how much more reason is there for not allowing evidence of another offence of a different kind. In the cáse of The People v, Thoms, (3 Park. Crim. Rep. 256,) the Court of Appeals held that it was error in the court to allow proof that on searching the prisoner’s wife, immediately after his arrest, parts of bills were found in her pockets, apparently cut for the purpose of making similar alterations, the charge against the defendant being, having in possession an altered and forged bank bill, with intent to pass the same as true. In the case of The People v. Dibble, (5 id. 28,) the same court also held, that it was error, on the trial of an indictment for passing a counterfeit bank note, for the prosecution to prove that, two or three days after the transaction in question, the prisoner passed two other counterfeit bank notes to other persons— the said notes not purporting to have been issued by the same bank as the one for passing which this indictment was found, and the uttering of them being in no way connected with that act. The court, in its opinion, says : “We think, therefore, that these transactions were merely calculated to excite suspicion and prejudice against the prisoner, and had no legal bearing upon the issue which was on trial.” In a bill of exceptions, if an exception is well taken, the verdict must be set aside, and a new trial granted, unless the appellate court can see that the error was such that no injury could arise from it to the excepting party. The People v. Brown, 6 id. 666-670.) The foregoing observations apply to the following question put to the same witness: “Did you ever see that check before? Was it ever presented to you at the bank to your knowledge?” Also to the question put to the same witness: “Was there any such firm as that (Robert Cottier & Sons) having an account in your bank at that date?”
    II. The court erred in refusing to discharge the prisoner at the close of the evidence of the prosecution. The prosecution did not show the forged check in the prisoner’s possession—that is, such a possession as that contemplated by the law. It was not shown to have been in his possession in any other way than enclosed in a sealed envelope in a letter, purporting to have been written by J. F. Connor. This was the proof made by the prosecution. The evidence aE went to show that another party had made the contract for the goods, had enclosed the check to the party with whom that contract had been entered into, and that the defendant was but the messenger. There was not one word of evidence on the part of the prosecution in any way going to show any connection between the purchaser, the writer of the letter and the defendant. There was no evidence offered to show that the purchaser of the goods and the defendant were acting or confederating together to carry out any fraud, and the suggestion by the recorder, that such might have been the fact, was whoEy unfounded, and was an error to the prejudice of the defendant. Every intendment is to be taken in favor of innocence, and there being no evidence going to show that the order or letter of J. F. Connor was a forgery, it was the duty of the court to assume that whoever may have been the actual forger, the evidence pointed to Connor and not to the defendant, and that, in the absence of any proof to the contrary, the court was bound to assume that the prisoner was but the messenger of Connor. The evidence of the prosecution is, that it was not the prisoner who made the contract.
    III. The court erred in the charge to the jury, in those parts which are expressly excepted to. That part of the charge where the recorder said, “How, gentlemen, I ask you what would be your feeling and action if you were arrested upon a charge upon which you knew yourself to be entirely free from guilt % If his story was true, he was at that restaurant where that man was ; I ask you if you Were arrested under suspicion of crime, if you believe for a moment that the police officer, who has sworn to do his duty, or the sergeant to whom this matter is communicated, would refuse to have that man sent for,” was erroneous. What was the idea the jury had a right to get from those remarks ? Had they not the right to suppose that the law required every police officer to be sworn to go after and assist every prisoner to get his witnesses; that it is to be presumed that every sworn officer will discharge his duty; that the police officer, having been so sworn, as the law required, it was not to be believed by the jury that he had neglected to discharge that sworn duty ? There is no law imposing-such a duty Upon the police officer, and it was error for the court to instruct the jury that there was. It was held in a civil case, (Green v. White, 37 N. Y. 405,) that “when an erroneous charge is made by the judge, the verdict for the plaintiff must be set aside, unless it is shown that the error did not and could not have affected the verdict—it is not for the defendant to show how he was injured by it—it is for the plaintiff to show that no injury could possibly havé arisen from the error. ’ ’ The court remarked: '“Ho one can certainly say how the minds of individual jurors are affected, or how an united result was reached.” This being the rule in civil cases, how much more reason and justice is there that the rule should prevail in criminal cases involving the personal liberty of the prisoner. In the case of The People v. Quin, (1 Park. Crim. Rep. 340,) it was held to be error for the judge to say to the jury in his charge, “Under the circumstances as given you by the witnesses for the prosecution, I see no ground to warrant you in finding the defendant guilty of manslaughter.” The court remark that, “Upon such a charge, the jury may well have supposed that a verdict of manslaughter would have been in violation of law; if the charge was such that it might be so understood, I think it was erroneous.” Had hot the jury in this case the right to suppose that if there was any person at the hotel, who had employed the prisoner to perform this service, the police officers, acting under their oath, would have secured and produced such person by force; and that they, the officers, not having done so, that was conclusive upon the jury that no such fact existed, and therefore the prisoner must have been the principal. The whole charge, in its entire scope, was calculated'to, and probably did, cause injustice to be done the prisoner ; it was a substantial direction to the jury to convict. (See Bulkeley v. Keteltas, 4 Sandf. 454.) If the charge, in this case, does not come within the rule laid down in the case last cited, when'the court is called upon to interfere, then it is difficult to conceive of one in which the court would be able to see cause to interpose. It cannot be, that because a judge now and then, between each substantial direction to convict, interpolates the words, “but, gentlemen, you are to judge yourselves, irrespective of any impressions that may be on the mind of the court,” or “these are matters for grave consideration,” he is at liberty to say, just put yourselves down, gentlemen, as incompetent jurors, unless you convict. It cannot be possible that a charge, snch as the one in this case, has a tendency to promote justice; to leave the questions of fact—the question of the prisoner’s guilt or innocence, to the jury, uninfluenced by the direction of the court.
    
      S. B. Garvin, (district attorney) for the people.
    The whole case shows a fraudulent plot to obtain from Cottier a quantity of gold leaf, by the imposture of a forged check—-the defendant being the active party in the transaction. The plot was detected, and the defendant arrested, in the act of receiving the gold leaf, as disclosed in the testimony of officer Keating. The nature of the objections to the record of conviction renders it necessary to set forth, as above, a view of the merits of the case. The first objection to the proceedings at the trial is, that the testimony of Jacob C. Parsons, teller of the Chemical national Bank, was admitted. His testimony was, that at the date of the check alleged to have been forged, the firm in whose name it was drawn had no account in said bank. The testimony was admissible to show the intent of the party accused, i. e., that there was fraud throughout the transaction. The second objection is, that the recorder, in his charge to the jury, said: “ To my mind, undisturbed by any considerations growing out of the evidence offered by the accused in his own behalf, the evidence taken on the part of the prosecution leads irresistibly to the conclusion that the prisoner is guilty of the specific offence charged.”
    The reply to this objection is:
    
      First. The learned recorder united with the foregoing expression of opinion an equally positive charge, viz., that “the opinion of the court as to the guilt or innocence of the accused has nothing to do with your (the jury’s) deliberations; you are to judge yourselves, irrespective of any impressions that maybe on the mind of the court.” Thus, the defendant had all his rights secured to him by explicit instructions.
    
      Second. In no case would a mere expression of opinion by the court, as to the guilt of the accused, constitute error, unless it was also charged that the jury should adopt that opinion; or unless, upon a full review of the case, on its merits, it were reasonably apparent that the rights of the defendant were prejudiced. In the record now under review the conviction was fully sustained by the facts. In such cases the liberal discretion of courts, in their charges to juries, has never been restricted. The principle is too familiar to require support by citing authority.
   By the Court, Leonard, J.

The plaintiff in error was indicted and tried at the Court of General Sessions, for forging a check upon the Chemical Bank, purporting to be drawn by J. Edwin Conant & Co. The teller was asked, on the trial, whether the said firm kept an account at that bank, and the witness answered that it did not. The check was shown to the witness, and ho was then asked, “Did you ever see that check before ? Was it ever presented to you, at the bank, to your knowledge?” To which the witness replied: “It is my impression that it was presented to me.” He was further inquired of, whether the firm of Robert Cottier & Sons, who were the payees of the check, had an account at the said bank, at the date of the check, and the witness replied in the negative. Another witness, William Watson, an expressman, who was instrumental in the transaction, was asked this question: “In consequence of what information did you take the package to the corner of Eleventh street and Broadway?” To which he replied: “Of being wrote on the slate to deliver a box at the St. Denis hotel.” The counsel for the prisoner objected to each of these questions, and the objections being overruled he duly excepted.

These inquiries tended to develope the history of the case, and although they might have been dispensed with for the want of materiality, I am unable to perceive that the evidence which was thereby evoked produced any injury to the prisoner. The check purported to have been certified by the bank, but the teller testified that it was not genuine.

The entry on the slate possibly was not made by the prisoner; but he must have known that it had been made, because he afterwards returned to the office of the expressman, and asked him if he did not see the order on the slate. This recognition sufficiently connected the prisoner with the entry to justify the reference to it, at the trial.

It was urged, on the argument, that the evidence of the teller had a tendency to prove a different offence from that charged; viz., obtaining goods by “false pretences.” The attempt to obtain the property of Cottier & Sons by this forged check was, in a minor sense, the crime of “false pretences.” If the evidence tended to prove the minor offence, it was because the greater crime, in this instance, included the lesser. The fact that neither the persons purporting to be the drawers, nor the indorsers, of the check, had any account with the bank by which the check purported to be certified, is a part of the history of the check alleged to have been forged, and so becomes connected with the alleged crime.

The prisoner’s counsel insisted, at the close of the evidence for the prosecution, that the prisoner had not been connected with the offence, and moved that he be discharged. It was not proven that he wrote or signed the check, but there were circumstances tending strongly to establish that the prisoner fraudulently uttered it. He left with the expressman a sealed envelope, directed to Cottier & Sons, containing the certified check, and an order to Cottier & Sons to deliver specified gold leaf to the bearer, and to receipt the bhl. He also requested the expressman to deliver the letter, and get from Cot-tier & Sons a box, which he was to convey to the St. Dennis hotel. The expressman performed his directions, carried the box to the hotel, where the prisoner met him, claimed and received the box, and paid the express charges. This evidence was sufficient to be submitted to the jury.

Some exceptions were also taken to the recorder? s charge. He charged the jury, in substance, that the evidence of the prisoner’s guilt was irresistible to his mind, laying out of view the evidence of the prisoner in his own behalf. This was an interference with the province of the jury; but the recorder added, in the next sentence, that his opinion had nothing to do with their deliberations, and they must judge for themselves, irrespective of his opinion. It would have been better to have omitted an expression of opinion from the learned court, but the whole subject was so submitted that the jury must have decided the case independently.

The recorder referring to the evidence given by the prisoner in his own behalf, said, in substance, if the story of the prisoner is true, he was at the restaurant when arrested, where that man was, (referring to the man by whom the prisoner stated he had been sent with the letter containing the check, and to procure the express-man to get the box of gold leaf.) The recorder further added: “I ask you if you were arrested under suspicion of crime, if you believe, for a moment, that the police officer, who has sworn to do his duty, or the sergeant to whom this matter is communicated, would refuse to have that man sent for.” The prisoner’s counsel insists that this was an instruction that the law imposed a duty upon the police officer to assist him to get his witnesses, and to secure and produce the person designated by the prisoner; that the jury might so understand it, and the officer not having made the arrest, that the jury wonld hold that there was no such person.

This is fallacious. The proper inference from this portion of the charge is, that an officer would, on being requested, arrest the person charged by the prisoner 'as a principal or accomplice. And in connection with the evidence, it was an inquiry whether the prisoner had made any such charge as he had testified to. The prisoner had testified that he told the officer, at the time of his arrest, that he was mistaken in the person; that the man who had employed him to engage in the matter was in the restaurant, near by. The officer testified that no such conversation occurred. The recorder had this evidence in view, and he put the inquiry to call the attention of the jury to the improbability of the statement of the prisoner. It would clearly have been the duty of the officer to arrest a principal or accomplice, or at least to inquire into the probability of the prisoner’s charge, had he in fact made it at the time of the arrest. I think the commentary was within the province of the court, in charging the jury.

The same observation will apply, obviously, to the exceptions to that part or portion of the charge wherein his honor the recorder charged the jury as follows: “But if the testimony for the prosecution leads you to the conclusion that he was acting in complicity with another party for the purpose of effecting the results of this forgery, then both are equally guilty,” and to that part or portion of the charge wherein the recorder charged the jury as follows: “That is an attempt to vindicate himself from this crime. It is for you to say whether the prisoner, unaided by any other testimony, would not fashion some story to impose upon your intelligence; it is for you to say whether he has told the truth, or whether this is a trumped up excuse to vindicate himself from the strait in which he found himself.” And the prisoner’s counsel have not specially urged an objection to those portions of the charge.

[First Department, General Term, at New York,

November 4, 1812.

Ingraham, Leonard and Learned, Justices.]

Upon the whole case, there was no substantial error, or prejudice done to the prisoner.

The judgment should be affirmed.  