190 Ind. 213 | Ind. | 1921
— Appellant was tried and convicted upon an indictment which charged that at a place and time stated he did unlawfully, feloniously, fraudulently and falsely make, forge and counterfeit a certain indorsement on a check for $500, payable to C. F. McIntyre, by writing across the back of said check the name “C. F. McIntyre”; that said check, after having been so indorsed, was delivered to the People’s State Bank; and that said indorsement was so placed on said check, and the check so endorsed was delivered to the People’s State Bank, with intent then and thereby unlawfully, feloniously and fraudulently to defraud the said People’s State Bank. The sufficiency of the indictment is not questioned in this appeal.
The trial court gave the instructions requested by the defendant, and no objections are urged against any instructions given by the court.
Appellant assigns as error that the trial court erred in overruling his motion for a new trial, under which he has specified that the verdict is not sustained by sufficient evidence, and is contrary to law, and that the court erred in admitting certain evidence, and in excluding certain other evidence.
There was also testimony — disputed, however — that C. F. McIntyre did not know of the existence of the check until after it had been so indorsed and deposited, and did not give appellant any authority or permission to write his indorsement on the check or to deposit it, and did not receive any of the proceeds of the check or of the bank credit obtained by depositing it.
The same rule precludes a reversal because of the evidence of other facts tending to prove that the appellant had authority to indorse and cash the check. If the jury chose to believe the witness McIntyre, this court cannot say that other evidence outweighs his testimony.
The evidence showed that the check in question was drawn by Charles W. Denicke in favor of himself, and was indorsed, “Pay to the order of C. F. McIntyre to apply on premium for use of two notes for $5,000.00 each signed by E. W. Bassett and C. F. McIntyre. This check covering one-fourth of the 'total amount of said •premiums, C. W. Denicke.”
What was said about the telegram applies also to the alleged error in excluding an exhibit which purported to be a letter written by C. W. Denicke, the maker of the check, to John M. Ahlgren, on December 20, 1918. If it was desired to prove anything by Mr. Denicke, and he could not be induced to attend the trial as a witness, because of his living outside the state, appellant could have taken his deposition. §2118 Burns 1914, Acts 1905 p. 637, §242.
The witness had previously testified, on cross-examination in the case in chief, that there were frequent telephone calls for him from appellant, and that he might have had a telephone call from appellant on the 14th, 15th or 16th of December, but that there was no call in. which appellant told him that there was a check in the. office for him, and asked if appellant might sign his name, and said that the payroll had to be paid. And he had theretofore testified that about the middle of December appellant told him about receiving the check from Chicago, and said the check in Chicago had not been paid, and also that he did not later have any conversation about signing the check in his name.
The defense had introduced direct evidence that appellant talked to Mr. McIntyre over the long distance phone at 7:48 a.m. on December 14, 1918, and a girl who worked for appellant as stenographer at the time in question had testified that in that conversation appellant said to him “that he had received another $500 check from Chicago, and that he wanted his permission to sign the check so that he would have the money for the payroll,” while appellant had testified that he added the statement that “I want you to authorize me, over and above our general understanding about indorsing your name,” and that in reference to indorsing his name, Mr. McIntyre said, “Certainly.”
The court did not err in overruling the motion for a new trial. The judgment is affirmed.