123 Neb. 605 | Neb. | 1932
The plaintiff in error, R. T. Cooper, hereinafter referred to as the defendant, was convicted of forgery in the district court for Saline county, and was sentenced to the penitentiary. To reverse this judgment he prosecutes proceedings in error in this court.
The facts upon which the state relied for a conviction are not in dispute. From the record it appears that the defendant was in the employ of Black Bros. Flour Mills Elevator, at De Witt, with authority to purchase grain and issue checks of Black Brothers, in payment therefor. The five checks set forth in the different counts of the information were issued by him as agent for Black Brothers. These checks on their face purported to have been issued for grain purchased from the payees by the defendant, and in payment thereof. Defendant admits in the record that he, without the knowledge, consent, authority or approval of the payees, wrote their names on the backs of the checks
The information contained five separate counts; count one charges in substance that the defendant, on or about the 19th day of December, 1928, had in his possession a certain check of Black Brothers for $73.60 payable to Alfred Sobotka. The information contains a copy of the check, and charges in part that the defendant did “falsely, knowingly, unlawfully and feloniously, and with intent to defraud, forge and counterfeit the name of Alfred Sobotka on the back of said check, and did then and there in said county, with intent to defraud, falsely, fraudently and feloniously publish and utter said check with said forged indorsement of said name thereon, as true and genuine, although it was false and counterfeit, as he, the said R. T. Cooper, real name unknown, well knew.” The other four counts are similar and of the same legal force and effect, so only count one need be considered. None of the counts sets forth the indorsements on the backs of the checks. The
The contention that the information is not sufficient to-inform the defendant of the offense charged is without merit. The information charges a violation of section 28-601, Comp. St. 1929.
It is urged that the conviction cannot be upheld because the indorsements on the backs of the checks were not offered in evidence, and that the offer and receipt of the checks in evidence did not carry the indorsements thereon. The record discloses that at the opening of the case a stipulation was entered into between the state and the defendant that the checks set forth in the several counts of the information were written by the defendant, and that the names of the payees on the backs thereof were all written thereon by the defendant, and without the knowledge, consent or authority of the payees. This was an admission of a false indorsement, an essential element of forgery. Following the stipulation the state offered the-checks in evidence. Under the stipulation no proof of the indorsements was necessary, and the checks being offered and received in evidence, the indorsements were properly before the jury; and the defendant is estopped to complain of the failure to offer •the indorsements. The rule in such a case is stated in 4 C. J. 706, as follows: “A party is estopped to complain of the judgment for insufficiency of evidence to sustain it, where he admitted the existence of the facts which such evidence would have established by stipulation.”
Instruction numbered four, when considered in the light of, and in connection with, the stipulation which eliminated evidence of the signing of the names of the payees by the, defendant, and when considered in connection with instructions numbered ' eleven, twelve and fourteen, cannot be said to be erroneous. The defendant stipulated that .he had signed the names of each of the payees on the backs of the checks, and having so stipulated he cannot now complain because the court, in its instructions, relieved the state from this burden. The state was not required to make further proof, nor was the court to treat in its instructions such fact as in controversy, under the rule stated in 22 C. J. 339: “An agreed statement of fact or other stipulation by counsel, as to matters of fact within, the scope of their professional functions binds the party as a judicial admission.” Again, “A judicial admission is conclusive on the party by whom it is made or to whom it is attributable.” 22 C. J. 421. See Meyers & Cox v. Western Union Telegraph Co., 98 Neb. 471.
Giving the intended legal effect to the stipulation, the intention of the defendant in doing the acts charged became the material element for the jury’s consideration. On that question the jury were properly instructed, not only by instruction number four, but by instructions eleven, twelve and fourteen; and when taken and considered together, and in connection with instruction number one requested by defendant, which "recognizes the correctness of the rule, as stated by the court in its instructions, it cannot be said that the trial court erred in giving any of the ■complained of instructions.
It is insisted that requested instruction number six finds support in Marshall v. State, 116 Neb. 45. In that case the question here involved was not presented or considered; and the rule there stated is not in conflict with the rule
“The indictment charges the offense denounced by the statute and describes with minute particularity the note, its forgery and utterance by the defendant, knowing it to be such, every allegation of which is sustained by the proof; and the defendant is held by the court to be immune from punishment, not because the commonwealth failed to prove that he committed the crime as charged, but because, in the opinion of the court, the forgery was so crude that it ought not to have deceived any one. This, fortunately, is not the law. Neither the negligence, nor the vigilance of the person defrauded or upon whom the attempt is made, affects the criminality of the act of one who forges or utters a forged paper of apparent legal efficacy, and it would be indeed an anomaly in the law if the guilty party could urge as a defense or demand immunity simply because he was lacking in skill, or that his victim was lacking in experience or prudence, or unsuspicious and therefore not vigilant. In 19 Cyc. 1388, the offense is defined thus: 'Uttering is offering a forged instrument, knowing*612 it to be such, whether such offer is accepted or not, with a representation, by words or actions, that it is genuine, and with an intent to defraud; and it is a public offense.’
“As the acceptance is immaterial, and constitutes no part of the offense, the crime is committed, even though the person, to whom the forged instrument is offered, discovers the forgery from the clumsiness of its execution or the behavior of the one offering it, and, for such reason, or any other, refuses to be defrauded. It is, therefore, patent that whether or not the forgery was such as likely to deceive is wholly immaterial, so far as the utterance is concerned.
“This is also true with respect to the forgery, as will be seen from the definition of that crime in Bishop, New Criminal Law, sec. 572, as follows: ‘Forgery is a species of common-law cheat, which early was separated from the fest under this distinctive name. It includes as well the unsuccessful attempt as the accomplished fraud. It is the false making or materially altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability.’
“In Barnes v. Commonwealth, 101 Ky. 556, this court said: ‘It is a forgery, though the similitude of the signature with the genuine be not such as would likely deceive.’
“So also: ‘It is likewise a forgery for one to sign a fictitious name to a writing which, if genuine, would be of apparent legal efficacy.’ Bishop, New Criminal Law, sec. 543; and in subsection 2, sec. 572, of the same volume: ‘Since a writing which falsely appears to be of efficacy is a symbol or token adapted the same as a genuine one to influence the mind contemplating it, the forgery may be as well of a mere fictitious name as of a real person’s.’
“In Robertson, Criminal Law, sec. 393, it is said: ‘Where the forged paper is such that it might, from its nature, and the course of business, deceive or mislead, to the prejudice of another person, the crime of forgery is complete. It is sufficient if the resemblance between the forged and genuine instrument is such as to deceive a person of ordi*613 nary observation or business capacity, although experts or persons of experience could not be deceived by it. No matter how defective may have been the forgery, it is enough if there is a possibility of fraud. And it is no defense that, by close observation, the victim could have detected the forgery. It does not lie in the mouth of the forger to claim immunity for his crime because, if the person he imposed upon had been vigilant or careful, he would not have been deceived.’ ”
As further supporting this rule, see Schmidt v. State, 169 Wis. 575, and State v. Chance, 82 Kan. 388.
Error is sought to be predicated on the fact that the information does not follow the statutory language, in this, that the defendant is charged with forging the names of the payees of the checks, instead of forging their signatures. The law justifies the use of words equivalent to, or inclusive of, the statutory language, provided the words used include the full signification of the statutory words. 31 C. J. 704-707; Whitman v. State, 17 Neb. 224; Peterson v. State, 64 Neb. 875.
“The court will give the words used in the information their ordinary and commonly accepted meaning, and, when viewed in this light, if the words employed mean the same thing as those found in the language of the statute denouncing the offense, the information will be upheld.” Smith v. State, 72 Neb. 345. In this case the use of the word “Name” in the information, instead of “Signature,” was not only justified, but was required to express a violation of our statute. To say that he forged the signatures of the payees, instead of saying that he forged the names of the payees, on the backs of the checks is like saying: “McCarthy come out, or come out McCarthy.” They mean the same thing and could not have been misunderstood or given a different meaning.
This disposes of all the alleged errors that merit consideration by a reviewing court, save the question of the suffiiciency of the evidence to sustain the verdict. The evidence conclusively establishes the guilt of the defendant.
Affirmed.