17 N.Y.S. 51 | N.Y. Sup. Ct. | 1891
Lead Opinion
The defendant was convicted of the crime of forgery in the second degree. The gist of the offense was the unauthorized filling in of a blank check intrusted to him by his employers. The material facts, as testi
The question is, was this a forgery of the check? The' rule has long been well settled in England that an unauthorized filling up of blanks in checks, notes, acceptances, and such like instruments of a commercial character, amounts to forgery. In Reg. v. Hart, 7 Car. & P. 652, the prisoner was given an acceptance, blank as to amount, with authority to fill it in for £200. He filled it in for £500. This was held to be forgery, and upon the point being reserved the conviction was sustained by all the English judges. In Reg. v. Bateman, 1 Cox, Crim. Cas. 186, it was said that where a check is given with a certain limited authority the agent is confined strictly within the limits of that authority, and that if he fills in the check with a different amount from that authorized, or if, after the authority is at an end, he fills it witli any amount whatever, it is clearly forgery. The doctrine of Reg. v. Hart was followed in Reg. v. Wilson, 2 Car. & K. 527. There the prisoner was authorized to fill in the amount due on a bill for £150 and interest, then to get the check cashed and pay the bill. Instead of doing this, he filled in £250, and retained part of the proceeds, claiming that it was due him for salary. This was held to be forgery. Where the authority is general a different rule prevails. Thus, in Reg. v. Richardson, 2 Fost. & F. 343, the clerk had authority to draw checks upon his employer’s bank, not only to the order of the creditors of the firm, but to his own order, for such sums as he deemed necessary to pay the cash disbursements of the business. Upon one occasion he drew a check to his own order for £11, the proceeds of which he appropriated. He was acquitted of forgery, and put on trial for embezzlement; the learned judge observing that the prisoner “could not be convicted of forgery, inasmuch as, having a general authority to draw, he did not necessarily exceed his authority when he drew the check, and that the criminal act, if any, was the subsequent appropriation of it.” In that case, however, the distinction is observed, in the statement of facts, that the clerk was not bound
In the very able brief which Mr. Closson submits in behalf of the defendant, he makes this claim: “It is not necessary to argue that forgery can only be committed with a pen, or some similar instrument, and that unless the prosecution can point to some writing on this check, and say that that particular writing in some way added to or altered the legal effect of the check, and that the words or figures so written were words or figures Dickie’s pen had no right to put there, Dickie did not forge the check, whatever he did with the proceeds.” We agree with this view of the case, but we think the prosecution had a right to go to the jury upon the proposition that the words “two hundred and twenty-five dollars” were words which Dickie’s pen had no right to put in this particular check. There was no draft or bill before him for that amount at the time he inserted those words. Their insertion was wholly outside of the authority conferred. Even if a draft from the Illinois agent for $200 had been before him, his authority was limited to that specific sum; and if he had inserted $225, with a view to misappropriating the surplus, he would have been guilty of forgery. Is he any the less guilty if he inserts the $225 without any bill being before him, and appropriates the whole amount? There was no general authority as to amount, any more than there was as to individuáis. The amount was limited to the face of each draft or bill presented; neither more nor less. And the general authority to pay drafts or bills of these particular persons was limited to payment in one particular way, and in that only, namely, by filling in one of the 12 checks the exact amount called for, and delivering such check, properly indorsed, to the creditor. Thus the authority conferred was the same in substance as a special authority to pay each of several persons a varying but liquidated amount, and to so pay it in a manner involving a purely clerical act. To fill in one of these checks, therefore, without regard either to the individuals covered by the authority or the amount of their claims,—in other words, to fill in an arbitrary sum, having no relation whatever to the authority conferred,—was forgery, if done “with intent to defraud;” and the insertion of the word “currency,” the blank indorsement, and the drawing of the money at the bank, were evidences of such intent to defraud. The principle of the English cases seems to have been generally followed in this country. Whart. Crim. Law, (8th. Ed.) §§ 671, 672; People v. Graham, 6 Parker, Crim. R. 135; Wilson v. Commissioners, 70 Ill. 46; State v. Maxwell, 47 Iowa, 454; Biles v. Com., 32 Pa. St. 529; State v. Kroeger, 47 Mo. 552; State v. Flanders, 38 N. H. 324. The only cases where a doubt is expressed as to the rule are Putnam v. Sullivan, 4 Mass. 45, and Van Duzer v. Howe, 21 N. Y. 531. These, however, were civil actions upon paper which was fraudulently used, or in which the blank amount was fraudulently increased beyond the sum author
But we think there was error prejudicial to the defendant in permitting Mr. Crego, upon his evidence in chief, to testify to the discovery of shortage in Dickie’s accounts generally to the amount of about $2,775. This was doubtless admitted upon the question of fraudulent intent, but it had no just bearing upon that question. It simply tended to show that Dickie was a faithless cashier, and that for an indefinite period he bad been robbing his employers. But under this indictment the fraudulent intent was confined to the particular forgery charged, and that depended, not at all upon Dickie’s past misconduct in other matters, but largely upon the purpose with which he obtained the $225 in question. The methods resorted to by Dickie to procure this $225, the insertion of the word “currency” in the check, the fact that no entry of it appeared in the check-book or in the cash-book, that it was not used in whole or in part for the business, that it was not accounted for in the cash entries of the day when the money was obtained, and his flight almost immediately after the transaction, were all admissible upon the question of intent. But past larcenies by means of false entries or fraudulent misappropriation of other moneys intrusted to his keeping were'surely not admissible. The proof was not even of offenses of the same nature, committed at the same time, tending toi show a general purpose to misappropriate the employers’ moneys by similar means. Indeed, this particular check seems to have been the only one which Dickie used contrary to his instructions; for the following question was put to Mr. Crego, and the following answer given: “Question. The question of the juror is, taking the check-book, and adding together all the checks, and comparing them with the vouchers, including those that have not been returned, how does your bank-account stand? Answer: There was a difference of this check of $225, and that only.”
Other points are made by the appellant which we need not consider; but, as the case will probably be tried again, we ought to say that the observation made by the learned judge to the defendant with regard to a certain book was one which was likely to affect the minds of the jury. The observation was as follows: “You know that you kept that book; you know perfectly well what you kept it for; you know perfectly well what it represents,-—probably not absolutely and definitely; you could give such information, if you meant to. There is no doubt in my mind.” This was, in effect, a judicial expression against the candor of the defendant, which in a balanced case might turn the scale against him. Standing alone, and in view of all the facts in this case, we do not think it would be sufficient to justify the granting of a new trial; but it would certainly have been better had the observation been turned into á question, and the defendant asked why, if he kept the book, and was necessarily familiar with its contents, he could not give the information called for. Upon the point secondly considered, however, the conviction and judgment should be reversed, and a new trial granted.
Andrews, J., concurs in the opinion of Mr. Justice Barrett.
Concurrence Opinion
It seems to me, from an examination of this record, that the defendant was convicted, really, because of a larceny, although in-