
    People v. De Kroft.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1888.)
    1, Forgery—Evidence—Proof of Handwriting—Comparison.
    On a trial for forgery, where defendant introduced one of the parties whose name is signed to the note, as a witness to show that she wrote the name alleged to have been forged, and that defendant wrote her name by her authority, she may be required, on cross-examination, to write her own name and that alleged to have been forged, and the signatures may be submitted to the jury for comparison as a test of her veracity.
    2. Same—Pleading and Pboof—Vabtance—Eeasübe of Names.
    Where certain signatures of the note had been erased after payment by the indorser, but they could he read under the erasure marks, it cannot be objected to its admission on that account that it does not correspond with the indictment.
    3. Same—Evidencie—Otheb Fobgebies.
    Evidence that defendant had forged the same signature to a chattel mortgage given to secure the note is admissible, as being material to the question of his guilt.
    Appeal from court of sessions, Monroe county.
    An appeal from a judgment of the Monroe county court of sessions entered upon a verdict convicting the defendant, Parsons De Kroft, of the crime of forgery in the second degree, and from an order of the same court denying the defendant’s motion for a new trial. The indictment contained two counts. In the first, the defendant is charged with forging and counterfeiting an instrument in writing, of which the following is a copy: “$25. Rochester, N. Y., January 19, 1887. Three months afterdate, we promise to pay to the order of Raleigh Parrar twenty-five dollars, at the Union Bank, value received, with interest. [Signed] Jacob Vogt. Mrs. Mary Vogt.” In the second count lie is charged with uttering and publishing as true the same instrument. In each count the charge is that the act was done with a view to cheat and defraud Jacob Vogt and Raleigh Parrar and the Union Bank. The people’s evidence tended to prove that the defendant and Mary Vogt applied to the payee of the note for the loan of $25, for the payment of which they offered to secure him by a chattel mortgage on certain household goods owned by Jacob Vogt; that Parrar declined to loan the money on his account, but offered to indorse a note for their accommodation, and procure its discount by the Union Bank, and to take from them a mortgage securing him against his liability as indorser. This arrangement was assented to by the defendant and Mrs. Vogt. The note set forth in the indictment was produced, and tile people's evidence tended to prove that the defendant signed thereto the name of Jacob Vogt, and that Mrs. Vogt placed her own name thereto in the presence of the defendant. The chattel mortgage was executed and delivered, the note discounted, and the avails paid to Mrs. Vogt. A receipt was executed acknowledging the payment of the proceeds, ($24.75,) to which the defendant wrote the name of Jacob Vogt, and the same was aíso signed by Mrs. Mary Vogt. During the negotiations, the defendant personated Jacob Vogt, who was the husband of Mary Vogt. The defendant was sentenced to be confined in the Auburn state prison for the period of five years.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      W. Henry Davis, for appellant. Q-eorge A. Benton, Dist. Atty., for respondent.
   Barker, P. J.

The people’s evidence satisfactorily established that the defendant, without authority, signed the name of Jacob Vogt to the note set forth in the indictment, and procured the payee named therein to indorse the same, and at the same time represented himself to be Jacob Vogt. The evidence in support of the second count of the indictment is no less convicting, and sustains all the charges therein set forth. Most of the exceptions upon which the defendant relies for the purpose of securing a reversal of the judgment were taken to the rulings of the trial court in receiving evidence to which he objected as incompetent and irrelevant. Ho claim is made by the defendant that the signature of Jacob Vogt to the note was genuine, or that he was authorized to execute the same in his name and behalf. He attempts to meet the charge by denying that he wrote the name of Jacob Vogt to the note, and claims that the same was written by Mrs. Mary Vogt, and that he at the same time signed the name of Mary Vogt to the instrument, with her consent and approval. This was the only question of fact seriously in dispute upon the trial. The defendant ,and Mrs. Mary Vogt were both witnesses, and testified that the note was executed in that way and manner.

While Mrs. Vogt was being cross-examined by the district attorney, one of the jurors, with the consent of the court, asked her to write her own and her husband’s name on a slip of paper, which she did. The defendant’s counsel objected to the signatures being put in evidence for the purpose of testing the signatures by comparison, which was overruled, and the signatures received, and the defendant objected. We think the evidence was competent, under the common-law rules, for the purpose of testing the veracity of the witness. The district attorney, by offering the signatures in evidence, made the interrogatories propounded by the juror, and the signatures written by the witness, a part of his cross-examination; and the correctness of the ruling may be properly challenged by the defendant. The defendant’s counsel attempts to sustain his objection and exception by the rule of evidence adopted and in force in this state prior to the enactment of chapter 36 of the Law's of 1880, that, when the genuineness of a signature to an instrument is in dispute, other signatures cannot be given in evidence which are genuine, to enable the jury to compare the same with the one in dispute; and that no documents can be used for the purpose of making a comparison except such as have already been put in evidence for other legitimate purposes. Two reasons have been assigned for the support of the rule mentioned, viz.: (1) The danger of fraud in the selection of the writings offered as specimens for the occasion; (2) that, if admitted, the genuineness of these specimens may be contested, and others successively introduced, to the infinite multiplication of collateral issues, and the subversion of justice. To which Mr. Greenleaf, in his work on Evidence, added another, to-wit, the danger of surprise upon the other party, who may not know what documents are to be produced, and therefore may not be prepared to meet the inferences drawn from them. Van Wyck v. McIntosh, 14 N. Y. 439; Doe v. Newton, 5 Adol. & E. 514; 1 Greenl. Ev. § 580. But these objections do not apply, and the rule is not applicable, where the signature offered in evidence was written in the presence of the court and jury by the person whose signature is in dispute, as in this ease. The issue to which the evidence related was whether the witness or the defendant wrote the name of Jacob Vogt to the instrument set forth in the indictment. The witness was called by the defendant to prove that he did not, and that she did, write the name of Jacob Vogt to the note, and also that the defendant did, and that she did not, sign her own name thereto. If the district attorney was willing to take the risk of such evidence, the defendant cannot complain that this method was adopted for the purpose of testing the truthfulness of the defendant’s own witness. There is authority to be found in the decisions of this and other states in support of the argument that the signatures made by the witness during her cross-examination, in the presence of the court and jury, were competent evidence on the question of the witness’ veracity. In Bronner v. Loomis, 14 Hun, 341, the action was on a promissory note claimed by the plaintiff to have been made by the defendant, who interposed the defense that her signature thereto was a forgery. The defendant was examined as a witness in her own behalf, and, on her cross-examinatian, she, at the request of the plaintiff, wrote her name on a slip of paper, ■which was received in evidence on the plaintiff’s offer, and over the defendant’s objection, and it was held to be competent evidence. In that case, as in this, the inquiry was whether the signature in question was or was not that of the witness, who had testified on the direct examination that it was not. In Chandler v. Le Barron, 45 Me. 534, it was held that a writing made in the presence of a court and jury by the party whose signature is in dispute may be submitted to the jury for the purpose of comparison. In the case of Doe v. Wilson, 10 Moore, P. C. 502, that tribunal, in its opinion, said: “Their lordships have no doubt that if, on a trial in nisi prius, a witness had denied his signature to a document produced in evidence, and, upon being desired to write his name, had done so in open court, such writing might be treated as evidence in the cause, and be submitted to a j ury, who might compare it with the alleged signature to the document.” We think the court below committed no error in allowing the signatures to be introduced in evidence, under the circumstances of this case. We may properly add, in this connection, that the rule as stated does not permit a party, the genuineness of whose signature is in dispute, to write his name in the presence of the court and jury, and then give it in evidence in his own behalf for the jury to institute a comparison between it and the one in question. The party so situated would be under a great temptation to produce a signature in appearance altogether dissimilar to the one sought to be sustained by the adverse party as genuine. King v. Donahue, 110 Mass. 155. The district attorney, in his argument in support of the competency of the evidence objected to, contends that, by the provisions of chapter 36, Laws 1880, the evidence was made competent, even if the same was not by the common-law rule which previously prevailed in this, state. It may be that the act referred to is broad enough in its provision to. make the evidence competent, but we prefer to place our decision on th& ground already stated.

The note produced and given in evidence on the trial corresponded with the note set out in the indictment. When produced, the signatures of Mrs. Mary Vogt and the indorser, Eaieigh Barrar, the payee, were both erased; but the evidence fairly shows that the erasures took place after the note was paid to the bank by the indorser, and that the signatures can now be read under the erasure marks. There was no error in receiving the note in evidence, over the objection made by the defendant that it did not correspond with the instrument set out in the indictment.

The district attorney was allowed to prove that the defendant signed the name of Jacob Vogt to the chattel mortgage. It was competent for the people to prove that fact. It was a part of the business that was transacted at the time the note was made and put in circulation, and was clearly competent, although it proved that the defendant had committed another offense of the same nature at the same time. The evidence was relevant and material for the purpose of proving the offense charged in the indictment. Hope v. People, 83 N. Y. 418. We have examined the whole record with care, and fail to discover any error. The evidence is very convincing in its character, and leaves no doubt in our minds as to the guilt of the defendant, and the judgment and the order should be affirmed.

All concur.  