
    People of the State of New York, Resp’ts, v. Joseph Elliott, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed March, 1887.)
    
    1. Criminal law—Evidence op accomplice—Corroboration—Code Grim. Pro., § 399.
    The corroboration of the accomplice required by the statute in a criminal action is not sufficient if it merely shows the commission of the crime or the circumstances thereof. Code Grim. Pro., § 899.
    2. Same—When guilt not presumed.
    It is a general rule of evidence and of uniform application in criminal trials that where the fact proved or corroborated is consistent with innocence it cannot be accepted as any proof of guilt.
    3. Same—Social relations with criminal no evidence op guilt.
    The existence of intimate social relations is not a circumstance, standing alone, from which participation in the guilty acts of an associate is to be presumed, because it is consistent with entire innocence.
    4. Same—Admission op knowledge op pact does not necessarily prove guilt.
    In the aumission by the defendant, made long after the crime, that he knew who committed the forgery in question and was informed as to same of the plans and devices used by the accomplice to deceive the bank, and that money had been produced from the bank on a forged draft, there is no fact confessed from which it could be fairly inferred that the defendant did any act connected with the transaction or that he was aware that the crime of making and uttering a forged draft was meditated by any one.
    Appeal from a judgment of the Monroe county court of sessions, entered upon the verdict of a jury, convicting the defendant of the crime of forgery in the second degree and as a second offense The sentence was for imprisonment in the Auburn States Prison for the period of fifteen years. The facts are stated in the opinion.
    
      P. Chamberlain, Jr., for app’lt; J. W. Taylor, district attorney.
   Barker, J.

The general facts upon which the people relied for the purpose of establishing the guilt of the* prisoner, were testified to by George Edwards, who was, as he admitted, an accomplice in committing the forgery. The principal question presented arises on an exception taken on behalf of the prisoner to the refusal of the court to instruct the jury that there was no evidence in the case tending to connect him with the offense charged in the indictment except the evidence of the said accomplice.

The instrument forged purported to be a draft drawn by the People’s Bank of Montreal on the National Bank of the Republic of the city of New York, dated August 10, 1885, for the sum of $3,900, payable to the order of George Edwards. This paper the said George Edwards had in his possession in the city of Rochester, on the fourteenth day August, and on that day in the said city he endorsed the same, with his own name, and caused it to be presented to the Flour City Bank for collection, the proceeeds to be credited to his account with that bank. The bank immediately forwarded the same for collection and credited Edwards’ account with the amount thereof, and on the next day Edwards drew out the proceeds, on his own check, which was paid him in currency. The forgery, and the active and guilty participation of Edwards in the crime, was proven by the evidence of other witnesses than himself.

The single question we have to discuss in disposing of the exception now under consideration, is, does the evidence given by other witnesses than the accomplice, “tend to connect the defendant with the commission of the crime ” charged in the indictment. Section 399 of the Code of Criminal Procedure. The corroboration of the accomplice, required by the statute, is not sufficient, “if it merely shows the commission of the crime or the circumstances thereof.” Id.

The story of Edwards as to the scheme planned by himself and the defendant as to the forgery and as to the mode and manner of putting the paper in circulation is, as stated by him in his evidence, substantially as follows : That he and the defendant were acquaintances and resided in the city of New York; that a few days before the draft was presented and negotiated at the bank, the defendant proposed that they go to Rochester and open an account with some one of the banks in that city and draw money against it, and it was arranged that they should travel to that place by different routes, and meet at the post office in that city the next day, which they did; that the defendant directed him to open an account, in the witness’ name, in the Flour City Bank and the German American Bank, and pointed out to him the location of each, and supplied him with four or five hundred dollars in currency with which to make a deposit, which he did with each of the said banks, representing to the officers that he was about to establish a commission business in the city; that he rented an office and secured an office boy. He further testified that within a few days thereafter Elliott handed him the draft in question and directed him to deposit it in the Flour City Bank, and after endorsing the same he handed it to the office boy, who took it to the bank for that purpose; that the defendant then furnished him with another draft, similar in all respects to the one deposited in the Flour City Bank, with directions to deposit the same in the German American Bank, which he also endorsed, and sent the same to that bank, by the boy, for deposit; that on the next day he drew nut of the Flour City Bank, on his own check, the proceeds of the draft, in currency, and immediately met the defendant on the street near the bank and divided with him the money, and that he then sent his check, by the boy, to the American German Bank to draw out the proceeds of the draft, which had been left with that bank the day before, but the bank declined to pay the check, and, on being so informed, he and the defendant at once left the city.

By this evidence of the accomplice it appears that every act done in the connection with the forgery of the draft, and its discount by the Flour City Bank, together with the receipt and division of the avails was done and performed in the city of Rochester within the period of two days. There is no pretence that any act connected with the consummation of the crime was done elsewhere or participated in by any other person. It is clear, if the story, of the accomplice is true, the defendant’s guilt is established. It is also equally clear and conclusive, if his evidence is excluded from the case, there would be a want of sufficient evidence to establish the defendant’s guilt.

We thus have presented a case which requires careful consideration and a close examination of the evidence given by the witnesses other than the accomplice for the purpose of ascertaining if such evidence tends to connect the defendant with the commission of the crime, so as to satisfy the rule of evidence laid down by the statute. Prior to the statute, the rule in this state permitted the jury to convict a defendant on the uncorroborated evidence of the accomplice, but it seldom happened that an accused person was convicted on such unsupported evidence, yet, as there was no rule of ¿aw declaring that an accused person should not be convicted upon the unsupported evidence of an accomplice, it sometimes happens that convictions did take place on this class of evidence alone, and they were sustained by the courts on review. To prevent conviction upon the uncorroborated evidence of an accomplice, the legislature enacted, the statute. .The statute indicates the nature and extent of the corroborated evidence necessary to be produced by the people, so as to make a case for the consideration of a jury, whether or not they will believe the accomplice. The rule now embodied in the statute is substantially the rule, which before the statute, courts were in the habit of stating to the jury for their guidance, although, as has been stated, it was not enforced as a rule of law. People v. Hooghkerk, 96 N. Y., 149.

In this case the court remarked, that: “It is plain that independently of the statutory rule, corroborated evidence to have any value must be evidence from an independent source of some material fact tending to show, not only that the crime had been committed, but that the defendant was implicated in it, and such is the doctrine of the best considered cases. But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice.”

Chief Baron Joy, in his treatise on the Evidence of Accomplices, page 98, after reviewing the case, says: “The only rule, therefore, which has the appearance of reason to support, is that which I have endeavored to show, as uniformly and without an exception laid down and acted upon by the English judges, which is: “That the confirmation ought to be in such and so many parts of the accomplice’s narrative as may reasonably satisfy the jury that he is telling the truth,’ without restricting the confirmation to any particular points and leaving the effect of such confirmation to the consideration of the jury aided in that consideration by the observation of the judge.”

Mr. Greenleaf, in his work on evidence, volume 1, section 381, lays down the rule that it is “essential that there should be corroborating proof that the prisoner actually participated in the offense.”

In Roscoe’s Criminal Evidence, 122, the rule is stated as-follows: “ That there should be some fact deposed to independent altogether of the evidence of the accomplice, which taken by itself leads to the inference, not only that a crime has been committed, but that the prisoner is implicated in it.”

By this rule, confirmation of the accomplice’s story as to wholly immaterial matters and the detail and circumstances connected with the participation of the crime, was insufficient, and it is now so expressly declared by statute. Lindsay v. The People, 63 N. Y., 143.

The several facts proved by the people, which are claimed to be in corroboration of the story of the accomplice, are wholly separate and distinct in their character, having no legitimate connection with each other, and may be best separately considered. It was shown by the evidence of the witnessess, that during the time the accomplice was in Eochester the defendant was also in the city in company with other persons, and that he registered at the hotel where he was a guest under an assumed name. But there is no evidence, aside from that of the accomplice, that he and the defendant were at any time in company together in the city or that either saw the other. The witnesses who saw and conversed with the prisoner do not pretend that they ever saw Edwards in Eochester.

The witness, Mr. Hathaway, president of the Flour City Bank, who stated that he saw both the prisoner and Edwards in the city, does nor pretend that he saw them together at any time or place during the fev days that Edwards was in the city; and on a Sunday he visited Charlotte, a pleasure resort, some ten miles from the city, and there witnesses testified that they saw Edwards and the prisoner together, ,gnd the latter introduced Edwards to a female, who was the prisoner’s companion at that time and place. However suspicious these circumstances may be that the prisoner was at Eochester and in the vicinity for the purpose of aiding and abetting Edwards in accomplishing the crime which he succeeded in consummating, they are not such as legitimately tend to prove that the prisoner did or aided in doing either of the acts which it was necessary to be done in drawing up the forged draft and putting it in circulation,. or that he shared in the division of the money procured from the bank thereon. The meeting of Edwards and the prisoner at Charlotte was before the draft was presented to the bank.

It is a general rule of evidence and of uniform application in criminal trials, that where the fact proved or corroborated is consistent with innocence, it cannot be accepted as any proof of guilt. The existence of intimate social relations is not a circumstance, standing alone, from which participation in the guilty acts of an associate is to be presumed, because it is consistent with entire innocence.

In Courtney's Case, reported in 28 Hun, 589, the defendant was convicted of the crime of forgery. Barton, the accomplice, testified to facts and circumstances which, if true, established his guilt. For the purpose of corroborating Barton’s evidence, and to connect Courtney with the forgery, the people proved by other witnesses that they were acquaintances and associated together every day for a fortnight at about the time the crime was committed, and that about fifteen minutes after the forged check was deposited in the bank they were seen together on the street near the bank building. The trial court held that this evidence tended to connect the prisoner with the crime, and left it for the jury to say whether they would believe the accomplice or not. The general term of the first department were of unanimous opinion that the corroboration was not of the character which the Code demands, and that it did not tend legitimately to connect defendant with the offense.

The evidence relied on as corroborative in the case now before us is of the same class and character of that which was produced in Courtney’s case, and is only different in attending circumstances. Mr. Hathaway, president of the bank, to whom Edwards introduced himself and arranged to open an account in the bank, testified that he saw the defendant in the police office in Rochester after he was arrested, and then added, “ And I think I have seen him once in the bank.” If this evidence is sufficient to establish the claim made by the people that the prisioner was at some time in the bank it does not state any fact or circumstance connected with his presence there indicating that he was implicated with the forgery. The time when he was there is not given, and it cannot even be said that it was during the time that Edwards was in the city planning and scheming to procure money from the bank by means of forged paper.

The further evidence upon which the people relied as tending to connect the prisoner with the crime is in the' nature of a confession made by the prisoner to the police officer while under arrest, that he knew who committed the forgery. The defendant was arrested in the city of New York on the 18th of March, 1886, by Hayden, a detective, and while on the cars from New York to Rochester they had a conversation together, and Hayden’s evidence is as follows: “Elliott asked me if I had anybody in Rochester under arrest; I asked him why; he said he wanted to know, that there must be somebody who had done some talking; further, I asked him why he didn’t get the money at the German-American Bank, that he might just as well have got that there as at the Flour City; he said, is that what you want me for; I said yes; he said, If that is what you want me for, I can show that I am not the party if you want me for getting the money there;’ and he asked me how they described the man, and he said he could stand up in any place, with whiskers on or off, and see if they could identify him as the man who had put the money there; I said I thought possibly they could identify him as the man, and he said, ‘No, you are mistaken; I didn’t do it, but I know who did;’ and then Wilkes, who was also under arrest and in charge of the .same officer, said, ‘No, you are mistaken, he is not the man who put the draft down there and got the money, unless Joe (the prisoner) has lied to me;' that is about all that was said; he was talking on other subjects coming up and quite jolly.”

The most that can be deduced from this evidence is an admission by the prisoner to the effect that he knew who committed the forgery and was informed as to some of the plans and devices used by Edwards to deceive the bank, and that money had been procured from the bank on a forged draft. But there is no fact confessed from which it can be fairly inferred that the prisoner did any act connected with the transaction or that he was aware that a crime was meditated by Edwards or any one else, and the admission is consistent with the position that all the information that he had upon the subject was acquired after the crime was consummated.- The time of the conversation related by the detective officer was months after the crime had been consummated and its commission known to the public. Moreover, it appears by the people’s evidence, that the prisoner and Edwards were frequently together after the forgery, and he had an opportunity to learn from the latter of its commission and the incidents and circumstances connected with the delivery of the draft to the bank and procuring the money thereon. The prisoner does not state that he had personal knowledge as to who the guilty party was, or that he had personal knowledge of the doing of any of the acts necessarily involved in the consummation of the crime, and the admission is consistent with the idea that the statement was based upon knowledge and information communicated to him by others. The admission, such as it is, is accompanied by his denial that he did the act charged upon him, and the whole statement must be taken together in considering the same as evidence against the prisoner. I am utterly unable to see how this evidence tends to prove any fact going to show that the defendant had any agency in committing the forgery.

All the evidence presented by the people, aside from that given by the-accomplice, is consistent with the defendant’s innocence. The only particular in which the accomplice is corroborated is in the proof showing that a crime has been committed, but the statute declares that the proof of the commission of the crime is not sufficient corroboration of the accomplice to support a conviction on his evidence.

I am of the opinion that the judgment should be reversed and a new trial granted.

Smith, Ch. J., and Bradley and Haight, JJ., concur.

Judgment reversed, new trial granted and proceedings remitted to the court of sessions of Monroe county.  