
    SUPREME COURT—APP. DIVISION—SECOND DEPT.,
    November 10, 1911.
    THE PEOPLE v. BENJAMIN E. VALENTINE.
    (147 App. Div. 31.)
    (1.) Practice—Extraordinary trial term—Code Civ. Pro. 234—Constitutional.
    In 1906 the governor of the State had authority under section 234 of the Code of Civil Procedure to appoint an extraordinary Trial Term of the Supreme Court and to designate the time and place of holding the same without action on the part of the Appellate Division. Said section of the Code was not unconstitutional.
    (2.) Same—Indictment—Forgery—Penal Code 521.
    
      It seems, that if the charging clause of an indictment uses the word “ forgery ” in describing the crime, it sufficiently describes the crime referred to as forgery in section 521 of the former Penal Code.
    (3.) Same—Statement in charging clause.
    Where the facts stated in the indictment as constituting the crime show it to be one committed through violation of the provisions of section 521 of the former Penal Code, mere misnomer in the charging clause which seems to allege a violation of section 95 of said Code does not require the reversal of a conviction for the offense actually described.
    (4.) Same.
    Even if an indictment is defective as to the crime named in the charging clause, this defect is waived by a failure to demur.
    (5.) Forged deed—Putting on record is uttering.
    Putting a forged deed on record is uttering it within the meaning of the statute.
    It is unnecessary in an indictment for uttering a forged instrument to set forth either the particular manner in which it was forged or the manner in which it was uttered.
    (6.) Same.
    Where an indictment states facts sufficient to constitute the crime of forgery under section 521 of the former Penal Code, and the evidence establishes said crime, a judgment of conviction will not be reversed because the charging clause of the indictment stated the crime to be “uttering, offering, disposing of and putting off as true, a certain forged, altered and fraudulent deed ” and did not state .that it was knowingly done.
    (7. ) Trial—Prejudice of jury must hot be aroused.
    A prosecuting officer should use scrupulous care not to arouse the prejudice of the jury by commenting on the failure of a defendant to take the stand in his own behalf.
    It is highly improper for the prosecuting officer in his summing up to state that the defendant was afraid to submit himself to cross-examination.
    (8. ) Same.
    Where, however, the court clearly and explicitly charged the jury that no presumption was raised against the defendant by his failure to testify in his own behalf, and defendant requested no other or further charge on that point, the error of the prosecuting attorney in referring to the subject was cured, and it is not cause for a reversal of a judgment of conviction, especially if the proof of guilt be clear and convincing.
    Appeal by the defendant, Benjamin E. Valentine, from a judgment of the Supreme Court, rendered against him on the 24th day of February, 1906, after a trial at the Nassau Trial "Term convicting him of the crime of forgery.
    
      William G. Beecher, for the appellant.
    
      Howard S. Gans, for the respondent.
   Per Curiam :

On June 27, 1900, defendant caused to be recorded in the office of the clerk of Nassau county a paper which was in form & deed, and purported to convey property situated at Cedar hurst, in that county, and also in Placer county, in the State of California. This paper bore date May 25, 1893. Marie A. Valentine was the grantor and Elizabeth H. Valentine was the .grantee named therein. The former was the wife of defendant, and died in August, 1899. The latter was his mother, and died in October, 1905. The body of the deed is in defendant’s handwriting. The jury have found, upon evidence quite conclusive in jts character, that the signature of Marie A. Valentine to said instrument was a forgery. It only remains for us to consider objections raised by the appellant, which do not go to the merits of the controversy.

1. It is contended that the extraordinary trial term at which defendant was convicted was unlawfully constituted, because the place and time of this extraordinary term were designated by the governor without action on the part of the Appellate Division. At the time of such designation there was statutory authority therefor. (Code Civ. Proc., § 234.) Such statute was not unconstitutional. (People v. Young, 18 App. Div. 162; People v. Gillette, 191 N. Y. 107, 22 N. Y. Crim. 188; People v. Neff, id. 210.)

2. The sufficiency of the indictment is challenged, first, because it does not charge a crime, and second, because it does not state facts sufficient to constitute a crime. An indictment must contain (1) the title of the action, specifying the name of the court to which the indictment is presented and the names of the parties; (2) a plain and concise statement of the act constituting the crime, without unnecessary repetition. (Code Crim. Proc., § 275.) The succeeding section, which prescribes the substantial form of an indictment, contains an accusatory clause naming the crime with which defendant is charged, followed by a specification of the acts constituting the same. (Id., §“276.) This indictment accuses “ Benjamin E. Valentine, late of the town of Hempstead, ¡Nassau county, State of New York, of the crime of uttering, offering, disposing of and putting off as true, a certain forged, altered and fraudulent deed.” When this indictment was found, the statute provided that a person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within this State, which instrument, if genuine, might be filed or registered or recorded under any law of this State or of the United States, is guilty of felony.” (Penal Code, § 95.) And also: “A person who, knowing the same to he forged or altered, and with indent to defraud, utters, offers, disposes of or puts off as true, * * * a forged * * * deed, * * * the false making, forging, or altering of which is punishable as forgery, is guilty of forgery in the same degree as if he had forged the same.” (Id., § 521.) “A person is guilty of forgery in the first degree who with intent to defraud, forges, 1. * * * a deed or other instrument, being or purporting to be the act of another, by which any right or interest in property is or purports to be transferred, conveyed, or in any way charged or affected.” (Id., § 509.) The expressions ‘ forge,’ forged ’ and ‘ forging,’ as' used in this chapter, include false making, counterfeiting and the alteration, erasure', or obliteration of a genuine instrument, in whole or in part, the false making or counterfeiting of the signature, of a party or witness, and the placing or connecting together with intent to defraud different parts of several genuine instruments.” (Id., § 520.) Appellant contends that the indictment charges an offense under the section first above cited; that the charging clause does not include in the description of the crime that it was knowingly committed, and that, therefore, it does not charge the crime of offering a forged instrument to be recorded. If the indictment were based upon that section of the Penal 'Code, it is not certain that this criticism would be fatal; but we are of the opinion that such is not thé case. If the charging clause had used the word “ forgery ” in describing the crime, we think that it would have been sufficient to describe that crime referred to as forgery in section 521 of the Penal Code. But if the facts which are stated as constituting the crime show it to be one committed through violation of the provisions of the latter section, mere misnomer in the charging clause would not require the reversal of a conviction for the offense actually described. (People v. Sullivan, 4 N. Y. Cr. Rep. 193.) If the indictment were defective so far as the name in the charging clause is concerned, if the facts stated therein constituted a crime under the latter section, this defect was waived by a. failure to demur. (Code Crim. Proc., §§ 323, 331; People v. Carr, 3 N. Y. Cr. Rep. 578.) The indictment sufficiently states facts constituting a crime under section 521 of the Penal Code, and the evidence establishes it. Putting a forged deed on record is uttering it, within the meaning of the statute. (Paige v. People, 6 Park. Cr. Rep. 683.) It is unnecessary in an indictment for uttering a forged instrument to set forth either the particular manner in which it was forged or the manner in which is was uttered. (People v. Alderdice, 120 App. Div. 368.)

If the signature in question was in fact a forgery, which we, think the evidence conclusively establishes, defendant’s guilty knowledge and intent are also conclusively established. He could not claim that, although forged, he was himself deceived as to the genuineness- of the signature, and in good faith put the deed on record. Hot only does his name appear as the subscribing witness thereto, but both at the time when he offered the deed for record and when examined as a witness in a civil action brought involving the title to the Cedarhurst property, he swore that he was present and saw Marie A. Valentine execute said deed.

3. Defendant contends that his trial was unfairly conducted by reason of certain remarks made by the prosecuting counsel in his summing up, which might be construed as criticisms upon defendant’s failure to take the stand in his own behalf. “ The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him.” (Code Crim. Proc., § 393.) Quite aptly the Court of Appeals has said: “ The law, so far as it can, protects a defendant who omits to be sworn, from having that fact weigh against him.” (People v. Tice, 131 N. Y. 651, 656.) This court in the Third Department has said: “ This statutory declaration is not in accord with experience, but its practical meaning is that the court and jury must, so far as they can, determine his case without prejudice or inference against him, founded upon his omission to testify.” (People v. Rose, 52 Hun, 33, 39.) Because of this danger of prejudice, a prosecuting officer should exercise scrupulous care not to arouse the same by commenting upon such failure. Upon two of the four occasions, when objection was made that indirectly attention was being called in the summing up of counsel to defendant’s failure to testify, we think that the remarks might be fairly attributed as well to failure to call witnesses other than the defendant to testify as to the facts then being considered, as to his own omission to take the stand. Upon the third occasion, counsel referring, as he had a right to do, to statements made by defendant under oath in the civil action above referred to, and which statements had been proved upon the trial of this action, and which statements counsel claimed were inconsistent with the contention made in defendant’s behalf upon this trial, used the expression, I will call him as a witness myself, against himself.” We think that this was a proper reference to the inconsistencies, if such existed, between the testimony offered through other witnesses in his behalf on this trial, and his statements made upon that occasion, and that it could not fairly be said that reference was made to his omission to testify on this occasion. Once again, in his summing up, the prosecuting attorney, again referring to the testimony given by the defendant in the civil action, in connection therewith used the phrase, “ when the defendant wasn’t afraid to testify and submit himself to cross-examination. ” We do not hesitate to say that this remark was highly improper, and if there was any reason to suppose that defendant was actually prejudiced thereby -it might be necessary to reverse this judgment of conviction and order a new trial. But the learned court in its charge instructed the jury in express terms that “no presumption is to be found or raised against the defendant by reason of the fact that he has omitted to take the stand as a witness. Our law now provides:, that a defendant on a criminal charge may he a witness in his. own behalf, but that no presumption shall be taken against him. because of his failure to take the witness chair and testify.”" Defendant seems to have been completely satisfied with this: clear and explicit statement of the law upon the subject, since he requested no other or further instruction to the jury upon that point. This has been held to be sufficient to cure any error-committed, either by the prosecuting officer or the court itself* in referring to defendant’s failure to testify. (Ruloff v. People,. 45 N. Y. 213; People v. Hoch, 150 id. 291.) Particularly when the proof of guilt is so clear and convincing as it is in this-case, the court may feel assured that no injury resulted from the indiscreet statements above referred to.

Several exceptions were taken in the course of the trial to-rulings of the court upon questions of evidence. Each of them, has been carefully examined, but none of them is of sufficient importance to merit or require discussion.

The judgment of conviction in this case should be affirmed..

Jeers, P. J., Hirschberg, Burr, Woodward and Rich,,. JJ., concurred.

Judgment of conviction affirmed.  