Commonwealth v. Pioso

17 Pa. Super. 45 | Pa. Super. Ct. | 1901

Opinion by

Beaver, J.,

The verdict of the jury finds the facts of this case against the testimony and the contention of the defendant. Briefly summarized, they are as follows: Brubaker, being indebted to the defendant, gave him his promissory note for the sum of $55.00. Some time before its maturity, it was proposed to renew it. Brubaker signed a blank note but, before it passed from his possession and into the control of the defendant, the defendant voluntarily placed the figures 55, so as to prevent, as he said, the raising of the note to $355 or $455. With the note in this condition, the defendant was authorized to fill the blanks for the amount indicated in figures. The figure 3 was added before the figures 55, and the note was filled up by the defendant’s daughter for the sum of $355. It was subsequently indorsed by Bitner and the proceeds placed to the credit of the defendant in the Lancaster Trust Company. The court below held that in law the altering of the figures and the filling of the note for the larger sum constituted the crime of forgery.

Twelve specifications of error are presented for our consideration which may be disposed of under six separate propositions, as argued by the appellant:

1. It is seriously contended that, assuming the facts as found by the jury, they did not constitute in law the crime of forgery. To substantiate this proposition, it is assumed that the figures in a promissory note or bill of exchange do not constitute a part of the note or bill, and that, therefore, to alter them is not forgery. As authority for this assumption, Commonwealth v. Bailey, 1 Mass. 62, and Commonwealth v. Stevens, 1 Mass. 203, are cited. These cases, however, both related to bank bills, in which it was held that “ the number of a bank bill and the figures in its margin marking its amount are not parts of the bill and need not be set out in the indictment.” These cases were quoted approvingly in Commonwealth v. Searle, 2 Binney, 332, in which it was alleged that the ornamental devices upon a bank bill are parts which it is material to set out in an indictment. All that the Supreme Court held in that case was “that it was not necessary to set forth the ornamental parts of the bill — the devices or mottoes.” It will scarcely be doubted, however, that, if a counterfeit bill, containing the same number as a genuine were uttered, and the genuine bill, in order to avoid a conflict with the counterfeit, had its number changed or altered, such an alteration would be a forgery. In that case the number would become a material part of the bill. In a very important sense the figures in a promissory note, bill of exchange or check are part of it. They serve to avoid mistakes in the body of the instrument. Whilst it is true and has generally been held that where there is a variance between the amount written in the body and the amount noted in figures, the written part, in the absence of fraud, will fix the liability of the maker or other party liable therefor, nevertheless the amount in figures, if varying from the amount written in the body of the instrument, serves to put takers upon inquiry. If the note in question had gone to the indorser, with the figures 55 and the words “ three hundred and fifty-five ” in the body of the note, it can scarcely be conceived, if he is a prudent man, that he would have indorsed the note, without making inquiry of the maker; and so as to the bank purchasing the paper. Such a variance would have raised the inquiry as to which amount was that for which the maker was to be held responsible, and inquiry from him would have at once disclosed the fraud. The case of Rex v. Hart, 32 Eng. C. L. R. 672 (7 Car. & Payne, 652), cited by the court below and the appellant as from 1 Moody, 486, is an entirely pertinent authority. In that case the defendant secured the acceptance of a blank bill of exchange with the figures 200 thereon written, so as to limit thereby the amount to be entered in the body of the bill. These figures were removed by an acid and the figures, as well as the words in the body of the bill, made to read 500. The case was originally tried before Mr. Justice Littledale and Mr. Baron Bolland, but afterwards before a full bench, Lord Denman presiding. The contention of the defendant in that case, as in this, was that, whilst a fraud had been perpetrated, it was not a forgery. The conviction, all the judges concurring, was sustained. The authority of this case, based as it is upon sound reason, has not been shaken.

2. The appellant claims, however, that there was not sufficient evidence, even if the facts would in law constitute forgery, to submit the question of the fraudulent alteration to the jury. His argument in support of this proposition is that, inasmuch as it requires the testimony of at least one additional witness, or corroborating facts which amount thereto, to support the testimony of the party interested, to reform an instrument, and that such testimony should be clear, precise and indubitable, the testimony necessary to convict in a criminal case should be at least equal both as to quantity and quality to what is required in civil cases. The answer to this proposition is twofold : (a) The rule does not apply in criminal cases for very obvious reasons. The commonwealth is the party interested and the witnesses in her behalf are not supposed to have a personal interest in the sense in which that term is used in civil cases. Motive, bias or prejudice, which may be supposed to influence a witness, are weighed by the jury and enter into their consideration in reaching a conclusion. The testimony of one witness, if believed by the jury, can convict a defendant in such a case as this. (i) As a matter of fact, the testimony in the case fully meets the requirements of the rule. In support of the testimony of the maker of the note is that of the indorser who testifies that the defendant expressly admitted to him that he had raised the note ,• and, in addition thereto, there is the testimony of the expert in regard to the ink employed, which, if believed, was practically conclusive of the question. The objections to the testimony of Bitner and of the expert, which are raised by other assignments of error, will be disposed of in their proper place. This is all that is necessary to be said upon this subject.

3. In the fifth specification of error it is alleged that the court misstated the evidence in regard to Brubaker’s call at the office of the defendant, when the original note was renewed. We can see no practical divergence between what was said by the court and what is contained in the testimony of Brubaker. The jury was certainly not misled nor was the defendant in any way injured by what is complained of.

4. The sixth, seventh and eighth specifications relate to the relations between the defendant and his indorser, who was the prosecutor in this case, the court below sustaining the objections of the commonwealth to testimony relating to the payment of a portion of the proceeds of the note to the indorser and his alleged declarations as to the purpose for which he wished to hold the note after he paid it. This was wholly immaterial. The commonwealth is in no way interested in the fact of the payment to Bitner nor the object which he had in view in paying the note, as indorser, and holding it. The testimony was properly excluded.

5. Brubaker, the maker of the note, being called by the commonwealth in rebuttal, was asked as to certain conversations which he had with the sons of the defendant in regard to the note and its payment. As explaining his attitude and inquiries upon this subject, he was asked whether or not he had heard at the time that the note had been raised from 155.00. This was not hearsay evidence and was not introduced for the purpose of establishing the fact of the alteration, but of showing what was in mind at the time of his conversations with the young men and the inducing cause thereto. The answer, however, was not that he had heard it but that he knew at the time it was altered, so that it was entirely unobjectionable from every point of view.

6. The tenth, eleventh and twelfth specifications of error relate to the competency of Pyott, a witness called by the commonwealth as an expert in regard to inks. His competency depended upon facts' which were stated by him and which the court deemed sufficient to warrant his testifying as an expert. These facts clearly established his competency. He not only testified that he had been called in court as a witness a number of times in regard to the colors of inks but that he had been practically connected with their use for many years. His own opinion as to his competency as an expert had little to do with the question, although that was not disqualifying, when fairly interpreted. The court was to determine his competency from facts and, in such a case, it is the opinion of the court and not ■that of the witness which governs.

The testimony in the case justified the verdict of the jury. Nothing was withheld from their consideration and nothing improperly submitted therefor which would have tended to change the result. Upon the facts as found by the jury, the defendant was in law guilty of the crime charged. The specifications of error are all overruled. Judgment affirmed and record remitted to the court below, to the end that its sentence may be carried into effect.