#### Matter of George O. Van Orden.

(Supreme Court, New York Special Term,

July, 1900.)

Crimes — Forgery — Complaint — Penal Code, § 511 — Intent.

A complaint which alleges that the prisoner did willfully and feloniously make, forge and utter a certain check, upon a certain bank, made payable to the order of a firm, and its indorsement, in that he did forge its name upon the back of the check without lawful authority and without its knowledge or consent, and that he did thereafter present the forged indorsement to a third person and received from him the money in exchange for the check, sufficiently charges forgery under section 511 of the Penal Code, and imputes a criminal intent.

Application on habeas corpus to be discharged from imprisonment.

Daniel S. Decker, for petitioner.

Asa Bird Gardiner, District Attorney, and John Schwarzkopf, assistant, for People.

*216McAdam, J.

The criminal complaint before the magistrate certainly charges the prisoner with the crime of forgery. Penal Code, § 511. It alleges that the prisoner did “ willfully and feloniously ” make, forge and utter a certain check upon the Liberty National Bank for twelve dollars and twenty-five cents, made payable to the order of Murray *&*Sullivan, and the indorsement of Murray & Sullivan, in that defendant did forge the name of Murray *&*Sullivan upon the back of said check without any lawful right or authority so to do, and without the knowledge or consent of Murray *&*Sullivan, of which firm the complainant was a member; and that the forging was done in the presence of a corroborating witness. The complaint then charges that the defendant did present said forged indorsement of said check to William Hauck, in premises No. 61 Cortlandt street, and did receive said amount of money in exchange therefor. The crime was complete when the prisoner presented the check to Hauck and received from him the money thereon, presumably on the credit of the indorsers as well as the drawers of the check. This gave the check its legal inception as a negotiable instrument. The prisoner’s counsel claims that Hauck deposited the check for collection in his bank, and that it was paid in due course by the Liberty National Bank, upon which it was drawn, through the medium of the Clearing House, and that, therefore, no “ criminal intent ” appears, as required by People v. Wiman, 148 N. Y. 29. Of course, a criminal intent must appear, but by the complaint here it is sufficiently charged by the words “ willfully and feloniously,” which in this instance impute such intent. 1 Bouvier L. Dic. (Rawle’s Rev. ed.) 768, and see Purdy v. Peters, 15 Abb. Pr. 160. When the check was cashed by Hauck he was naturally led to act on the belief that he had secured the liability of Murray *&*Sullivan as indorsers thereon, on which he might safely rely, not only for the genrnneness of the check, but its payment, and the prisoner’s act in indorsing their name upon it was presumably for that purpose and with that intent. The prisoner may be able to satisfy the jury that there was no intention on his part to defraud, but that question is, as in People v. Wiman, *supra,*one of fact for the jury, and not of law for the court upon habeas corpus and certiorari. The district attorney claims that he can prove that not only the indorsement but the check itself is a forgery, and the prisoner the forger. If that fact be established it will certainly be material *217and weighty on the question of criminal intent. The complaint is sufficient in law, and the matter will have to be disposed of by a trial, at which the evidence will determine the question of guilt or innocence. The writ must be dismissed and prisoner remanded.

Writ dismissed and prisoner remanded.