Paige v. People.

whether the intent could or could not be carried out. The criminal intent might exist, even if it were impossible to carry it into effect. 2 Carr. & K. 293; 5 Cush. 365; Russ & Ry. 154.

These views led to denying the motion to quash the indictment. But for reasons of convenience in bringing the cause before the supreme court at general term, for review, judgment for the prisoner was entered pro forma, and the people brought a writ of error to the supreme court, where the pro forma judgment was reversed, thus overruling the demurrer to the indictment.

The prisoner brought error to this court.

S. W. Jackson, for plaintiff, in error.-As to the allegation of sealing;-cited 4 Kent, 452; 2 Johns. 74; 24 Wend. 201; 1 R. S. 738, § 137; Russ. on Cr. 1440; People v. Shall, 9 Cow. 778; People v. Galloway, 17 Wend. 542; People v. Garrison, 8 Barb. 560; Stanton v. Camp, 4 Barb. 276; Warren v. Lynch, 5 Johns. 245; Macomb v. Thompson, 14 Id. 207; Starkie on Crim. Pleading; Rex v. Norton, 3 Keb. 356, 367, 388; 3 Salk. 171. As to uttering, Johns. Dic.; Tomlin's Law Dic.; People v. Rathbun, 21 Wend. 527; Rex v. Palmer, 2 Leach, 978; Roscoe Crim. Ev. 455, 456. As to intent to defraud, 21 Wend. 523; 19 Id. 197; Roscoe Crim. Ev. 457; 3 Chitty Crim. Law, 1039. As to regularity of review at this stage, he relied on Hartung v. People, 26 N. Y. 154.

W. A. Beach, for the people, defendants in error;-Relied on the opinion of the court below, and insisted that averring a deed means something which, if not false, would be a perfect deed. Holmes v. People, 15 Abb. Pr. 154; Fenton v. People, 4 Hill, 126; and see 5 Park. Cr. 178. The indictment follows the statute, which uses the word "deed" without the word "seal." If it be a defect, it should be disregarded as formal. 2 R. S. 728, § 52; Tomlinson v. People, 5 Park Cr. 313.

BY THE COURT.-WOODRUFF, J.-The whole indictment is claimed to be defective, because in neither count is it in terms alleged that the forged instrument was, or purported to be,

Paige v. People.

sealed; and that, if not sealed, it could not operate as a deed. Therefore, it is claimed that the ability to perpetrate a fraud thereby is wanting. People v. Shall, 9 Cow. 778. If void, it is no forgery. 17 Wend. 542; 8 Barb. 560.

The words of the instrument set out in the indictment import a transfer of an interest in real estate. To the validity and efficiency of a grant in fee of a freehold estate to pass the title, a seal is necessary. 1 R. S. 738, § 137.

The argument in support of the demurrer assumes that the instrument set out in the indictment purports to be a grant in fee of a freehold estate, and that, therefore, it is void if there be no seal.

Our statute declares that every person who shall be convicted of having forged, counterfeited or falsely altered. deed or other instrument being or purporting to be the act of another, by which any right or interest in real property shall be or purport to be, transferred, conveyed, or in any way charged or affected, with intent to defraud, shall be adjudged guilty of forgery in the first degree. 2 R. S. 670, § 22.

The indictment set out the instrument, and it concludes: "In witness whereof, I have hereunto set my hand and seal," &c. It purports to be signed by the grantor, "Thomas Rock," and in brackets annexed to his name are the letters, "L. S," employed to indicate that the instrument is sealed.

But, averring the forgery of an instrument which contained the words, "In witness whereof I have hereunto set my hand and seal," does not amount to an averment that a seal was in fact affixed to the name. Moore v. Jones, 2 Stra. 815; 2 Ld. Raymd. 1538; Van Santwood v. Sandford, 12 Johns. 197; Macomb v. Thompson, 14 Id. 207.

So in regard to the letters "L. S." (Stanton v. Camp, 4 Barb. 274). Although, in certifying a copy to be a true copy of an original, if such letters were affixed to the name of the signer, it would be ordinarily inferred that the original had a s-al, and that the letters "L. S." were the language of the certifying officer, and placed there by him as an assertion that in that place there is a seal,-still this is too loose to satisfy a require ment in the rules of pleading that a seal shall be averred.

As to this, and also as to the attestation clause, a conclusive

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test of their sufficiency as averments is this: Would they be fully satisfied, by proof on the trial, should an instrument be produced and given in evidence which had no seal? If they would, then they do not amount to an averment of sealing. It is plain that if the plaintiff in error had gone to trial, and a paper had been produced in the precise words set out in this indictment, and having the professed signature of Thomas Rock, with brackets and the letters "L. S." annexed, the terms of the indictment in this respect would be fully proved, and yet the instrument is not sealed. As the matter is stated in this indictment, the letters "L. S." are not the language of the pleader, nor his abbreviation of an averment that there is the place of a seal.

If, therefore, nothing in this indictment purported to aver the sealing, except the giving of what is averred to be the tenor of the instrument, it could not be said that the indictment sufficiently charged the forging of an instrument under seal.

But the indictment does, in express terms, charge that the plaintiff in error did falsely and fraudulently and feloniously forge and counterfeit a certain deed, purporting to be the act of one Thomas Rock, by which a right or interest in real property purported to be transferred and conveyed.

Now, there cannot be a deed without a seal. This is true at the common law, as it is by our statute. Indeed, the plaintiff in error insists upon this as the very ground of his argument; while at the same time, he insists that averring the forgery of a deed does not aver a sealing. I do not perceive the consistency of the propositions.

Our legislature, when they defined the crime and presented the penalty of forging a deed, did not think it necessary to add the words under seal, or any other terms, to show that they meant by that word to describe a sealed instrument. The word imported that. The indictment here follows the statute, and if it was necessary to be more specific in giving details, the giving of the copy was quite sufficient to furnish such particulars. And hence, the indictment being read, states the forgery of a deed, and the copy, with the locus sigilli pointed out, is in perfect harmony with the legal import of the averment. The

Paige v. People.

averment cannot be proved, except by evidence showing that an instrument having a seal was forged.

The whole object of the pleading is satisfied. The charge is absolutely definite and certain. It apprises the party indicted precisely what it is proposed to prove against him. The giving of the copy identifies the transaction in all its particulars, so that he has full opportunity to know what is charged, and prepare for trial, &c., so that a judgment upon the indictment will be an effectual bar to another prosecution for the same

cause.

If, therefore, the question were entirely novel, and no guide could be found in adjudged cases, I should have no hesitation in saying the indictment was in this respect sufficient.

But I perceive no reason why the rule on this subject, well settled as to pleading in civil actions, should not be applied to an indictment. It is sometimes said that in criminal prosecutions greater strictness should be observed. All that can properly be intended by this is, that, out of regard to human life and liberty, no rule designed to promote the fair conduct of a prosecution, to fully apprise the party charged of the precise offense, to enable him to prepare for trial, and to protect him from being twice vexed for the saine cause, should be relaxed. It is not intended, to use the simile of an ancient law writer, that subtleties should be spun to such cobweb fineness that justice should fall through.

Every substantial object of a pleading, useful to the party charged, is secured in the present case.

The case of Fenton v. People, 4 Hill, 126, furnishes a striking analogy, and an example in which, in an indictment, it was held that the employment of a word which, ex vi termini, imported a material fact not expressly averred, was held sufficient. There the indictment was for obtaining the signature of another to a mortgage by false pretense, and followed the words of the statute. It was claimed that no offense was charged, because it was not averred that the mortgage, though signed, was ever delivered by the signer. The court held that the charge that the prisoner "obtained" the signature by false pretense, &c., imported that it was delivered to him.

The rule in civil actions, stated in the note to Cabell "

Paige v. People.

Vaughan, 1 Williams' Saunders 219: "There are some words of art, such as indenture,' 'deed,' or 'writing obligatory,' which of themselves import that the instrument was sealed by the party, without the averment of sealing," sustained by numerous cases there cited, quoted by SPENCER, J., in Van Santwood v. Sandford, 12 Johns. 197, does not appear to have been questioned in modern times; and I perceive no reason why a charge of forgery and counterfeiting a deed should not import the falsely making of a sealed instrument, as truly as the charge of making a deed imports the execution thereof by seal. See Francis Englefield's Case, Leonard, 175; Heaton v. Wolf, 2 Roll. R. 228; Benson v. Nodger, Cro. Eliz. 731; per scriptum obligatum; Ashman v. Rypley, Cro. Jac. 420. "Sealing" is intended by the words "per scriptum obligatum." Bond v. Moyle, 2 Vent. 107; Woodcock v. Morgan, 6 Mod. 306; Atkinson v. Coatsworth, 1 Stra. 512. I cannot regard the hesitating conclusion of the judges in Rex v. Norton, 3 Keble, 356, as sufficient ground for rejecting the analogy of these cases, or the conclusion which, I think, good sense and sound reason compels.

Another view of the subject is entitled to some consideration, though not suggested on the argument. The whole argument for the appellant rests upon the assumption that the indictment could not be sustained if the instrument be not sealed. That is doubtless true, if the averment that the plaintiff in error forged a deed is an averment of sealing, and that is the conclusion above stated; but that is fatal to the demurrer.

Let it be supposed, then, for a moment, that such is not the force of the averment, does it follow that the instrument is void? The statute requires a seal to the grant in fee of a freehold. Nothing in the indictment shows that the interest of Thomas Rock was a freehold. An interest in real estate may 2 R. S. 135. The be created by writing, without a seal. forgery of an instrument creating or transferring an equitable interest, is, within the statute, "a deed or other instrument, by which any right or interest in real property shall be, or shall purport to be transferred, conveyed, or in any manner charged or affected." 2 R. S. 738. An instrument intended as a deed of bargain and sale, made upon sufficient considera