#### The People of the State of New York ex rel. John R. Hegeman, Respondent, *v.*Joseph E. Corrigan, City Magistrate of the City of New York, and Peter Beery, a Peace Officer, Defendants. The People of the State of New York, Appellant.

(No. 2.)

First Department,

December 11, 1908.

Forgery — entries in books of account—transactions intended to deceive Insurance Department — intent.

Although an insurance company, for the purpose of deceiving the State Insurance Department, transferred its secured loans to its bankers just prior to the date of its annual report, and immediately after making such report repurchased the loans, an officer who entered said transactions in the company’s books is not guilty of forgery under section 515 of the Penal Code, relating to false entries in books of account.

Intent to defraud or to conceal a larceny or misappropriation of property by such entry is essential to make it a crime.

Appeal by The People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1908, sustaining writs of habeas corpus and certiorari and discharging the relator from custody.

*Robert C. Taylor,*for the appellant.

*Morgan J. O'Brien,*for the respondent.

Ingraham, J.:

The question in this case is similar to that presented in *People ex rel. Hegeman*v. *Corrigan, No. 1*(129 App. Div. 62), except that here the relator is charged with forgery in respect to certain entries in the books of the Metropolitan Life Insurance Company which indicated that the loans in question had been paid. The court below sustained the writ and discharged the relator. As we have held on the appeal from the perjury charge that the statement in i’egard to the payment of the loans was in fact true, and that the loans were actually paid by the receipt of the amount due from Vermilye & *76Co., with a transfer of the collaterals pledged to secure the loans, it follows that the statement of these entries in the books was not an untrue statement, and, therefore, not forgery. We also agree with the court below that there is an absolute lack of any evidence of intent to defraud, but that all the-facts show that there was no such intent, and that the company was not in fact defrauded. The insurance company had the moneys represented by these loans; the entries in the books made a true statement of that fact. Certainly, the company was not defrauded by these entries, as they correctly stated the actual fact. Whatever the intent was in regard to the Insurance Department, these entries in the insurance company’s books had no relation to it. There was no person who could be defrauded. The crime of forgery depends upon the intent to defraud (Penal Code, §§ 509-515), and to make it a crime under section 515 of the Penal Code there is required at least some evidence to show that the person who made the false entry in the book of account did so with *“*intent to defraud or to conceal any larceny or misappropriation by any person of any money or property.” The case is entirely bare of the slightest intimation that these entries were made with any such intent, and where the intent might well be proved by the fact that such an entry did actually injure a person or deprive him of his property, where the entry could have no such effect;, and where it simply represented a true condition of affairs or an actual transaction, there certainly cannot be any foundation for the crime of forgery.

It follows that the order appealed from must be affirmed.

McLaughlin and Houghton, JJ., concurred ; Patterson, P. J., and Clarke, J., concurred in result.

Order affirmed.