
    The People of the State of New York, Respondent, v. Charles Carlesi alias Charles Carlese, Appellant.
    First Department,
    January 3, 1913.
    Crime — forgery — passing forged checks — counterfeiting — felony — conviction as second offender — effect of pardon for first offense.
    Where it is proven that a defendant procured facsimile lithographed blanks to be made of a genuine check in his possession, and traced the signature from the original cheek, and caused such forged checks to be deposited in a bank by a third person, and the proceeds to be drawn out, and that he has been previously convicted and sentenced for passing counterfeit coin, the first conviction may, although the offense has been pardoned, be the basis for a conviction of the defendant as a second offender under section 1941 of the Penal Law.
    The passing of counterfeit coin in violation of section 5457 of the United States Revised Statutes is a felony within the meaning of sections 881 and 894 of the Penal Law.
    A former conviction is an element merely in determining the criminality of a second offense, and a pardon does not obliterate the record or blot . out the fact that the defendant has been convicted.
    Laughlin, J., dissented, in part, with opinion.
    Appeal by the defendant, Charles Carlesi, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against him on the 23d day of February, 1912, convicting him of the crime of forgery in the second degree as a second offense, and by which judgment he was sentenced to imprisonment for the term of twelve years and eleven months.
    
      George Gordon Battle, for the appellant.
    
      Robert S. Johnstone, for the respondent.
   Miller, J.:

The defendant was indicted as a second offender for the crime of forgery in the second degree (Penal Law, § 887; Penal Code, §§ 511, 512) and uttering a forged instrument (Penal Law, § 881; Penal Code, § 521). The jury found him guilty ‘‘ of forgery in the second degree as a second offense. ” This appeal is from the judgment of conviction by which he was sentenced to imprisonment in a State prison for the term of twelve years and eleven months.

It was proved that on or about June 15, 1907, the defendant got possession of a genuine check of the Piss, Doerr & Carroll Horse Company by cashing it for the holder; that he procured facsimile lithographed blanks to be made, filled in one of the blanks for $3,200, and caused it to be deposited in a bank by a third party and the proceeds to be drawn out: The signature on the forged check was traced from that on the genuine check, which remained in the defendant’s possession until July 17, 1907. The forged' check was made and uttered on July ninth. While the evidence consisted principally of the testimony of accomplices, that testimony was strongly corroborated by the'fact which was .established by independent evidence of the possession, by the defendant of the genuine check which was on a special lithographed form and of which the forged cheek was a facsimile, except for date, amount and name of the payee. That fact tended directly to connect the defendant with the commission of the offense, and the proof of it did not depend upon expert testimony as is asserted by the appellant, even if that could make any difference. Even if it was error to submit the second count of the indictment to the jury, which we are far from deciding, it was cured by the verdict.

The appellant urges, however, that he was improperly. convicted as a second Offender. The indictment charged that the defendant was convicted on the 20th day of December, 1.895, at a Circuit Court of the United States of America for the Southern District of New York, of the crime of selling and having in his possession counterfeit silver dollars upon an indictment which charged that the defendant and others “ did unlawfully and feloniously, and with intent to defraud some person unknown, sell, utter and publish a certain falsely made, forged and counterfeited coin, in resemblance and similitude of the silver coin of the United States, called and known' as the standard silver dollar, * * * and within the jurisdiction of the court last aforesaid, feloniously and with intent to defraud some person unknown did have in their possession a certain falsely made, forged and counterfeited coin, in resemblance and similitude of the silver coin of the United States, called and known as the standard silver dollar, * * * well knowing the same to be false, forged and counterfeited,” and that he was sentenced by said court to be imprisoned in the Monroe County Penitentiary for the term of three and one-half years, and to pay a fine of one dollar.. The defendant conceded the previous conviction as alleged in the indictment and put in evidence a pardon granted tó him on October 3, 1904, which recited the fact of his indictment, his conviction on a plea of guilty, his sentence; that he had served his term of imprisonment, and, after earning all allowances for good conduct, was discharged on September 10, 1898, and had since conducted himself in an exemplary manner, and concluded as follows:

“Now, Therefore, be it known, that I, Theodore Roosevelt, President of the United States of America, in consideration of the premises, and divers other good and sufficient reasons, me thereunto moving,
“ Do hereby grant unto the said Charles Carlesi a pardon and restore his civil rights.”

Of course, the principal, if not the sole, purpose óf the pardon in this case was to restore to the convict his civil rights. We prefer, however, to put our decision on the broad ground that the first conviction may, notwithstanding the offense be pardoned, be the basis for a conviction under section 1941 of the Penal Law, which provides:

“A person, who, after having been convicted within this State, of a felony, or an attempt to commit a felony, or of petit larceny, or, under the laws of any other State, government, or country, of a crime which, if committed within this State, would be a felony, commits any crime, within this State, is punishable, upon conviction of such second offense, as follows: * * * ”

The appellant urges two propositions: (1) That the first offense as defined by section 5457 of the United States Revised Statutes was not a felony as defined by the laws of this State (Penal Law,. §§ 881, 894), and that, therefore, the defendant could not be convicted as a second offender perforce of said section 1941; and (2) that the prior conviction could not after a pardon be the basis of a conviction of a subsequent crime as a second offense.

Said section 5457 of the United States Revised Statutes provides: Every person who falsely makes, forges, or counter- ■ feits, or causes or procures to be falsely made, forged or counterfeited, or,willingly aids or assists in falsely making, forging, or counterfeiting any coin or bars in resemblance or similitude of the gold or silver coins or bars which have been, or hereafter may be, coined or stamped at the mints and assay-offices of the United States, or in resemblance or similitude of any foreign gold or silver coin which by law is, or hereafter may be, current in the United States, of are in actual use and circulation as money within the United States, or who passes, utters, publishes or sells, or attempts to pass, utter, publish or sell, or bring into the United States from any foreign place, knowing the same to be false, forged, or counterfeit, with intent to defraud any body politic or corporate, or any other person or persons whatsoever, or has in his possession any such false, forged or counterfeited coin or bars, knowing the same to be false, forged or counterfeited, with intent to defraud any body politic or corporate, or any other person or persons whatsoever, shall be ' punished by a fine of not more than five thousand dollars, and by imprisonment at hard labor not more than ten years.” (Amd. by 19 U. S. Stat. at Large, 223, chap. 24; now U. S. Grim. Code [35 U. S. Stat. at Large, 1119], § 163.)

Section 881 of the Penal Law of this State (formerly Penal Code, § 521) provides: ■

“A person who, knowing the same to be forged or altered, and with intent to defraud, utters, offers, disposes of or puts off as true, or has in his possession, with intent so to utter, offer, dispose of, or put off:
cc q -* * *
“2. A forged coin.; or,
“ 3. * * *
“Is guilty of forgery in the same degree as if he had forged the same.”

Section 894 of the Penal Law (formerly Penal Code, § 526) provides:

“A person who has in his possession a counterfeit of any gold or silver coin, whether of the United States or of any foreign country or government, knowing the same to he counterfeited, with intent to sell, utter, use, circulate or export the same, as true or as false, or to cause the same to be so uttered or. passed, is punishable by imprisonment not more than five years, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The argument is that there is a distinction between possession with intent to defraud and possession with intent to utter. That distinction is too nice, and in any event the first conviction was of “ selling and having in possession.”

The second proposition is based on the following language of Mr. Justice Field, speaking for the majority of the United States Supreme Court in Ex parte Garland (4 Wall. 333, 380), viz.: “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the-offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”

The appellant cites many cases in which that language has been quoted or referred to with approval, one case in which the precise proposition contended for by him seems to have been decided (Edwards v. Commonwealth, 78 Va. 39), and Bishop on New Criminal Law (Vol. 1, § 919), wherein the author takes the view that a second offense, the first one having been pardoned, is not a second but a first offense.

The precise point does not seem to have been decided in this State and, so far as the research of counsel goes, has been decided in only two States, the Supreme Court of Appeals of Virginia in Edwards v. Commonwealth (supra) taking the appellant’s view, and the Court of Appeals of Kentucky holding to the contrary. (Mount v. Commonwealth, 63 Ky. [2 Duval] 93; Herndon v. Commonwealth, 105 id. 197.) The case nearest in point in this State is People v. Price (53 Hun, 185; affd. on the opinion below, 119 N. Y. 650). But the appellant seeks to distinguish that case by the fact that the pardon for the first offense was granted by the Governor of the State of Georgia, and that the decision was put upon the ground that the Legislature of the State of New York was not controlled by the Constitution or laws of the State of Georgia. While that point was- made by Mr. Justice Landon,. writing for the General Term, his opinion, which was adopted by the Court of Appeals, put the decision on a much broader ground, namely, that the conviction was not obliterated by the pardon but remained as a fact in the past history of the defendant and that the punishment for the second offense was solely for that and not at all for the offense committed in Georgia; and, necessarily, the latter proposition is correct, else all the statutes providing for increased punishment for second offenses would be unconstitutional. (See People ex rel. Cosgriff v. Craig, 195 N. Y. 190.)

Manifestly, the language of Mr. Justice Field, quoted supra, is to be read in its bearing upon the precise point before the court. The pardon of this defendant did not make a new. man ” of him; it did not blot out ” the fact or the record of his conviction, and of course, the Supreme Court, in deciding that the Congress could not impinge upon the pardoning power of the Executive did not intend to hold that the Executive could blot out a Solemn record of the judicial branch of -government.. (See Roberts v. State of New York, 30 App. Div. 106; 160 N. Y. 217.) The pardon in this case merely restored the defendant to his civil rights. If it had been granted before his term, of imprisonment had been served, it would also have relieved the defendant of that. But it did not obliterate the record of his conviction or blot out the fact that he had been convicted. (Matter of-, an Attorney, 86 N. Y. 563.) It relieved the defendant of the consequences which the law attached to his offense. But the defendant is to be punished now solely in consequence of his second offense. The fact of the former conviction is an element merely in determining the criminality of the second offense. (People v. Sickles, 26 App. Div. 470; 156 N. Y. 541; People ex rel. Cosgriff v. Craig, supra.) The Legislature of this State has said that one who commits a crime, after having been convicted of another crime, is a greater offender than as though he had not previously been convicted, and the punishment inflicted is solely for the second offense to which a greater degree of criminality is thus attached. That degree of criminality is not at all lessened by the fact of a pardon which assumes his guilt, remits the punishment and affords him an opportunity to become a law-abiding citizen. It was solely within the province of the Legislature to attach such greater criminality to the second offense from the mere fact of a conviction for a first, and thé Executive by the exercise of the pardoning power could no more interfere with that exercise of legislative power than the Legislature could interfere with the power to pardon.

The judgment of conviction should be affirmed.

Ingraham, P. J., McLaughlin an,d Dowling, JJ., concurred.

Laughlin, J. (concurring):

I am of opinion that if the defendant had received a full unlimited pardon for the former offense it would have constituted an invulnerable shield against a subsequent conviction for a felony as a “second offense,” pursuant to the provisions of section 1941 of the Penal Law, which requires a longer sentence in such cases; because that statute presupposes not merely a former formal conviction, which may have been vacated or reversed, but which stands unaffected, whereas such a pardon obliterates guilt and is equivalent to a verdict of not guilty (1 Bish. New Crim. Law, § 919; Edwards v. Commonwealth, 78 Va. 39; Armour Hunt, Ex parte, 10 Ark. 284; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 295; Knote v. United States, 95 U. S. 149; Ex parte Garland, 4 Wall 380; Osborn v. United States, 91 U. S. 478; United States v. Klein, 13 Wall 128); but the pardon proved by the defendant was granted after he completely served his sentence . and is expressly limited to restoring- his citizenship and, therefore, the conviction remains unaffected.

Judgment affirmed.  