23 Ga. App. 513 | Ga. Ct. App. | 1919
The indictment charged that the defendant forged and altered a cheek or draft, “by altering and raising the figures and numerals on said check, to-wit, $3.60 to the figures and numerals, to wit, $57.60,” said cheek or draft being.in substance and tenor as follows:
Form No. 1840.
Southern Bailway Company, Account Department, June 1917. Boll 3144 Line 6 Washington, D. C., July 16, 1917. No. 33389. H. C. Ansley, Treasurer, Southern Railway Co., Washington, D. C. Pay to the order of Thomas McTntosh ($57.60) [the figures on said draft and cheek being $3.60 before its alteration and .said figures $3.60 being falsely and fraudulently altered and made to be $57.50 as aforesaid] Two 60/100 Dollars. Not valid if drawn for more than three hundred (300) dollars. In full for services rendered during the month of June, 1917, when endorsement is in-exact
Printed on margin the following :
“This check will be paid by any of the banks named oA the back having sufficient funds of the Company in its hands or by any agent having sufficient funds of the Company in his hands. It is receivable also in payment of freight or fares. Payable not later than sixty days from date.”
Endorsed on the back of the check or draft were the names of a number of banks.
To this indictment a demurrer was filed, as follows: “1. Because the said indictment does not allege a crime against the laws of the State of Georgia. 2. Because the alleged alteration in the check described in said indictment is not a material alteration and does not constitute a forgery. 3. Because the check described in said indictment is not alleged to have been altered or changed in amount in the body of said check, the only alteration being in the marginal figures, and therefore the alteration did not constitute a forgery.” The demurrer was overruled, and the defendant excepted.
■This case has not been without its serious difficulties. That for an alteration of a writing to be the basis of a prosecution for forgery the alteration must be a material one was easily determined from text-boqks, books of reference, and the opinions of the courts of last 'resort in many jurisdictions; but the question of what was a material alteration was not so easily settled. After a very thorough examination of the reports and digests in search of precedents, three cases directly in point were found, two of these holding that under facts similar to those in the instant case the defendant was' not guilty of forgery, and one that he was. In Commonwealth v. Hide, 94 Ky. 517 (23 S. W. 195), it was'held: “Where a check for ‘seventy cents/ the amount of which was also written in figures, thus: ‘$¿|/ near the top of the cheek, was altered by inserting the figure ‘3’ between the dollar mark and the figures ‘70/ leaving the words ‘seventy cents’ in the body of the check unchanged, the alteration constituted a forgery, although the person to whom the check was presented for payment could, by close observation, have detected the forgery and prevented the consummation of the
To the same effect as the Lotono case is that of Wilson v. State, 85 Miss. 687 (38 So. 46), the 1st headnote of which is as follows:
“Under Code 1892, § 1106, defining forgery and confining the crime to instances where any person may be affected, bound, or in any way injured in his person or property, the mere alteration of the figures, following the character f$’, in the upper right-hand corner of a draft, changing ‘2.50’ to ‘$12.50’, does not constitute forgery where in the body of the instrument the sum ordered paid was • . distinctly written Two and 50-100 dollars,’ and this is especially true where the paper upon which the draft was written had distinctly stamped upon its face the words “Ten dollars or less,’ since the alteration was of an immaterial part of the instrument and could not injure any one.” While the opinion in the Wilson ease is based upon a local statute, the general principles announced therein are applicable to the instant ease. In addition to the above the following cases throw light upon the question at issue. In State v. Means, 47 La. Ann. 1535 (18 So. 514), one of the head-notes is as follows: “The forgery charged, and altering, were not alleged with the required certainty. The extent and character of the altering were not shown; whether the figures (it is alleged) were forged were of a material character, or merely marginal; whether the writing expressed was forged or only the figures.” In the decision Mr. Justice Breaux, speaking for the court, said: “To constitute a charge of alteration and forgery of an instrument it must be averred that it was altered in a material part. It does not appear with certainty whether the alteration was of a material part. Of course, if the accused feloniously forged and altered the figures 2.75 so as to make them read 29.75 by adding 9 to a material part of the order, he is guilty of forgery; in other words, if there was no writing of the amount, and if the order read, pay 2.75, and was thus'altered, it is forgery.' But if the 2.75 was merely marginal, or in character marginal, as relates to a writing of the amount,
In State v. Lewinger, 252 Ill. 332 (96 N. E. 837, Ann. Cas. 1912D, 239), it was held that “Altering'the marginal figures of a check to make them correspond with the amount expressed in written words which are not ambiguous or uncertain is not forgery, as the written words, under section 17 of the negotiable-instrument act of 1907, control the amount of the check, and the alteration does not change the legal effect of the instrument.” In discussing that ease Mr. Justice .Cartwright said: “The alteration of the figures, therefore, did not change the legal effect of the instrument. That was the law as established before the passage of the negotiable instrument act. . . Other courts have held that an alteration of marginal figures on a check in which the amount payable is plainly expressed in words is not forgery,” citing the Wilson, Lotono, and Means cases, supra, and Jackson v. State, 72 Ga. 28. While the Supreme Court of Wisconsin referred to the cases of Lawless and Hide, supra, as similar eases, the Supreme Court of Illinois said in the Lewinger case, “We do not regard them as of the same nature.” Nor do we. The difference in the two cases is pointed out above. - So it appears that the Supreme Court of West Virginia was right when it said in the Lotono case that the Hide case “stands alone, unsupported.”
From the foregoing opinions it appears that before the alteration of a check or draft can be the basis of a prosecution for forgery, the change must be such that it would affect the “legal liability of the parties in an action on the instrument.” It is well established that when the amount of a check is expressed both in words and figures, and there is a conflict between the two, the amount stated
Judgment reversed.