majority">Merwijst, J.:

The charge against the defendant was that, on or about the 16th. ■ day of March, 1896, he committed the crime of perjury in falsely-testifying that he did not indorse a certain promissory note for $150' dated December 9, 1895, made by A. M. Burleson, payable to the order of W. W. Collins, the defendant, three months after date at. the First Eational Bank of Earlville, and which purported to be-' indorsed by W. W. Collins and by C, K. Warren.

It appears that such a note was negotiated by Burleson at the bank named, and that when upon its non-payment it was brought to. the attention of Collins, he denied ever having indorsed it. Thereupon a criminal proceeding was instituted before George Bergen, a justice of the peace, against Burleson, first for grand larceny and then for forgery. The justice is dead. From his docket it appears that Burleson was arrested upon a charge of forgery and brought, before the magistrate ; that he put in a plea of not guilty, and thereupon the magistrate immediately proceeded to an examination, Collins being one of the witnesses examined. The testimony or deposition of Collins, as then and there taken and signed by him, indicates that he then testified that he did not indorse the note; that the signature purporting to. be his was not his handwriting and that he-never wrote it. The indictment here, is based upon the allegation that such testimony was false.

It is claimed by the defendant that the justice did not have jurisdiction of the proceeding in which this testimony was given, and that, therefore, the oath administered to the defendant was extra, judicial.

The information as originally presented to the magistrate by one-*259Clark, the cashier of the bank, charged the crime of grand larceny. The name of the person charged, according to the printed record before us, is Ansel 1VI. Burdick. In the original, however, which is handed up, the name is Burleson. At the time the information was presented the magistrate took the depositions of Clark, Collins and. Warren, from which facts appeared tending to show that the crime of forgery had been committed by Burleson. A warrant seems te have been issued against Burleson in the first place for grand larceny in obtaining from the bank the money on the forged note. Afterward a warrant for forgery was issued, and, when Burleson was brought before the magistrate on the first warrant, he ' was informed that it had been withdrawn, and he was then arrested on the warrant for forgery, put in his plea, making no objections to any ■ informality in the proceeding, and then, the examination proceeded, in which Collins gave the testimony in question.

By section 188 of the Code of Criminal Procedure and subsequent sections it is provided that when the defendant is brought before a magistrate upon an arrest, either with or without warrant, on a charge of having committed a crime, certain proceedings shall be taken and witnesses examined. In pursuance of those provisions Collins was examined as a witness. The magistrate had jurisdiction of the subject-matter and of the defendant in the proceeding. Collins was in reality the moving party.

•The contention that the oath was extra judicial is not, we think, well, taken.

Upon the trial under review Hr. Clark, the bank cashier, was called as a witness for the People, and, during the course of his direct examination, the following occurred: “ Q. Are you familiar yfith the writing of W. W. Collins ? A. I have seen considerable pi it; I have seen him write his name. Q. What do you say, is that ^signature in his handwriting (referring to the signature in questian) ? [Objected to as immaterial, incompetent and improper; the witness not shown competent.] The Court: The objection is overruled ? [Exception taken.] A. To the best of my judgment it is.n Upon his cross-examination the following occurred: “Q. On your knowledge of Hr. Collins’ handwriting, as you have seen him write, would you say that (referring to the signature in question) was his genuine handwriting % A. I have not seen him write enough to *260base any opinion. * * * Q. On what other grounds do you base your opinion aside from the- amount you have seen him write ? A. I have had signatures supposed to be Mr. Collins’ genuine admitted signature, which I compared : I did not know they were his signature. Q. You don’t know they were genuine signatures ? A. No, sir. Q. You base your opinion partly on those signatures that you supposed-were genuine ?' A. Yes, sir.” The coiinsel for the defendant then moved to strike out the evidence of the witness in regard to Mr. Collins’ handwriting upon the ground that it was inadmissible and improper, and the proper foundation for it had not been laid.. The court denied the motion and the defendant excepted.

It is claimed by the defendant, correctly we think, that the court erred in denying the motion to strike out. The witness did not show himself qualified to testify as to the genuineness of the handwriting, either from his own knowledge, or from ^comparison with signatures known to him to be genuine, or admitted to be so. (See People v. Severance, 67 Hun, 182; People v. Dorthy, 50 App. Div. 44.) The evidence was material, ’and from the position of the witness it may have had controlling effect with the jury. The error was, we think, of sufficient importance to require a reversal.

When the case was moved for trial, the defendant mov^d upon affidavits to put the case over the term, upon the ground 'of the absence of a witness, who was .shown to- be sick and unable to attend. The defendant claims that the motion ought to have'been granted. The witness .absent was Warren whose name appeared^ as indorser on the same note, but whose signature was claimed to halve been also forged. The situation of Warren to'the case was evidently such that his testimony might be quite material for the defendant. The defendant in substance complied with the requisites on such anS application as laid down in People v. Jackson (111 N. Y. 362). The' disposition of such an application depends largely on the discretion of the court. Still it seems to us that’ under the circumstances it might well have been granted.

■All concurred.

Judgment arid order reversed, and new trial granted. ■

Citation profile

Relationships

How this case has been treated — in progress