Lawless v. State, 114 Wis. 189

Lawless v. State

114 Wis. 189 | Wis. | 1902

BakdeeN, J.

There was no motion for a new trial and no •exceptions to the charge. The only question for consideration is the one arising upon the denial of the motion to direct a verdict of acquittal, and upon the refusal of the court to instruct the jury as requested. That such questions are properly before us for consideration has been decided by this court in several cases. See Zahn v. M. & S. R. Co., ante, p. 38, 89 N. W. 889, and cases cited. The only ease to which our attention has been called seeming to hold a different rule is Reed v. Madison, 85 Wis. 667, 56 N. W. 182. In that case the motion for a new trial was not interposed until after .judgment, and no appeal was taken from the order denying the motion. The decision is right on principle, but what was said in reference to the court’s reviewing the evidence in absence of a motion for a new trial, must be read in connection with what was said in Second Nat. Bank v. Larson, 80 Wis. 469, 50 N. W. 499, and is limited thereby. The refusal of the court to direct a verdict, when proper exception thereto is taken and preserved in the bill of exceptions, requires this ■court to review the testimony in order to determine whether the motion should have been granted.

The proof disclosed that Roberts gave plaintiff in error a check intended to be for $9.50, but written in the form set out in the statement. The latter knew the amount, and knew it was given to pay his transportation to Wisconsin. When he presented the check, and requested Mr. Kiefer to cash it, it had been changed, and he represented it to call for a much larger amount. An expert might not have been deceived by the change, but one inexperienced in handling checks might very well have been deceived, as Kiefer was. The cheek in a material and a prominent part had been altered, and it does not matter that the words “fifty cents” remained as written, *192or that by close observation the party cashing it might have detected the forgery and prevented the consummation of the fraud. A case similar in nearly all its aspects is Comm. v. Hide, 94 Ky. 517, 23 S. W. 195. In that case the change was in writing figure “3” before the figures thus, “$ $ésn near the top of the check, toward its right-hand margin. The line below read, “.seventy cents.z~ dollars.” The court held the alteration material, and sustained the conviction. See State v. Schwartz, 64 Wis. 432, 25 N. W. 417; Mitchell v. State, 64 Ga. 448; Rembert v. State, 53 Ala. 467; Baysinger v. State, 77 Ala. 63 ; Lampkin v. State, 105 Ala. 1, 16 South. 575. The rule that if the instrument is void on its face.it is not the subject of forgery, does not apply. The check in question was not void on its face. It called for the payment of a sum of money. The change made in it gave it the capacity to mislead and deceive the unwary. Its vicious capacity to- defraud was certainly known to the accused. lie represented that it called for a much larger sum than he knew he was entitled to. It comes with very poor grace from- him now to say that the person who cashed the check for him ought not to have been deceived. The fact remains that he was deceived, and the accused profited by such deception. We think the alteration was material, and of such a character as was calculated to deceive nonexperts.

The point that the accused could not be held liable for uttering the forged check because he did not indorse it merits but little consideration. Such title as the accused had therein was passed by the transfer, and Mr. Kiefer acquired the right to have the accused make the proper indorsement. Sec. 1676-19, ch. 356, Laws of 1899. The trial court committed no error in denying the motion to direct an acquittal or refusing to instruct as requested.

By the Court. — The judgment is affirmed.