Roush v. State

34 Neb. 325 | Neb. | 1892

Post, J.

The plaintiff in error was tried in the district court of Douglas county on an information containing two counts. In the first count he is charged with forging an indorsement on the following instrument:

“Seneca, Kansas, March 7, 1891.

“First National Bank,

“Pay to the order of B. F. Humes, Mang., $50, fifty dollars. Wirt E. Wilkins,

“ Cashier.

“To Schuster-Hax National Bank, St. Joseph, Mo.”

The indorsement in question is as follows: “B. F. Humes, Mgr.”

In the second count he is charged with knowing, uttering, and publishing the aforesaid instrument, including said forged indorsement, with intent to defraud. A verdict of guilty was returned as to the second count, but no finding was made by the jury as to the first count of the information. A motion for a new trial being overruled, judgment was entered on the verdict, which we are asked to reverse for' reasons Hereafter stated. Two objections are urged to the sufficiency of the information, which will be considered in this order. First, that it does not appear therefrom that the instrument .in question is genuine; in other words, that it was necessary to allege that the First National Bank of Seneca, Kansas, was a bank duly and legally organized in pursuance of statutory authority, with authority to issue said paper. The instrument set out in the information purports to be a draft, such as is usually drawn by banks upon correspondents,'and, therefore, apparently good and valid for the purpose for which it was executed. (Roode v. State, 5 Neb., 177; Maxwell’s Crim. Proced., 163.) It was not necessary to allege in the information that the bank named therein is a corporation organized under the laws of the state of Kansas or the general government. (State v. Hart, 17 N. J. L., 327; People v. Stearnes, 21 Wend. [N. Y.], 409 ; State v. Jones, 1 McMull [S. Car.], 236*; State v. McKiernan, 17 Nev., 224.) Within the principle of the above cases is Braithwaite v. State, 28 Neb., 832.

It is next objected that the intent to defraud is charged in general terms only. This is expressly authorized by the Criminal Code, section 417. It is not necessary to charge or prove an intent to defraud any particular person. (Maxwell’s Crim. Proced., 149, 152; 2 Bishop’s Crim. Proced., 401; State v. Hart, 67 Ia., 142; People v. Van Alstine, 57 Mich., 69; 8 Am. & Eng. Encyc. of Law, 507, and note.) We have carefully examined the bill of exceptions and can see no sufficient reason for disturbing the verdict on the ground that it is not supported by sufficient evidence. Plaintiff in error is identified beyond doubt as the party who indorsed and delivered the draft to the witness Heyman, and that the indorsement thereon was a forgery. It is insisted by counsel that the state failed to prove that the abbreviation “Mgr.” was written by the accused. In this connection it should be noted that the abbreviation “Mang.” on the face of the draft and the indorsement “Mgr.” on the back thereof was treated by the court as material and essential parts of the instrument. It was assumed, and we think the assumption warranted by the facts in the case, that the draft is drawn in favor of B. E. Humes, the payee thereof, in a representative capacity, that of manager, and that to amount to a forgery it was essential that the indorsement thereon purports to be by the said payee in the same capacity. The jury were instructed in effect that the letters “ Mgr.” were an abbreviation of the word manager. The court also in express terms cautioned the jury that in order to convict on the charge in the first count, they must find that the accused wrote the letter s “Mgr.,” and in order to convict on the charge in the second count, they must find that he knowingly uttered and published said draft, knowing the indorsement thereon, including the letters “Mgr.,” to be a forgery. It appears from the bill of exceptions that the accused called at the store of the witness Hyman on the evening of .March 10,1891, for the purpose of purchasing a suit of clothes, assuring the witness that he was expecting a draft from his brother. He returned the morning following and exhibited the draft. The witness insisted on accused identifying himself as the payee of the draft, which he could not do to the satisfaction of the former, who then telegraphed the bank which had drawn the bill, and receiving a satisfactory response he sold accused a suit of clothes for $15 or $16 and took the draft in payment therefor, paying him the difference in money. The witness says in response to a question:

Then we went into the bank and presented the draft, and the cashier said, “ Tell him to sign his name,” and he signed it B. F. Humes.

Q,. Who signed B. F. Humes?

A. The defendant.

Q. Who wrote that “Mgr.” under the words B. F. Humes ?

A. I never seen him sign that; I saw him sign B. F. Humes, and then I signed the firm’s name after it.

Again, on cross-examination he testifies that he has no recollection of seeing accused write “Mgr.” on the draft.

The state also produced as a witness J. S. Bennett, one of the regular police of the city, who testified that he had been a book-keeper for nearly forty years, and was experienced in comparing writings and signatures. This witness was asked to compare the signature B. E. Humes indorsed on the draft by the accused with the letters “ Mgr.” thereon, and in reponse thereto answered: “Yes, undoubtedly they were written at the same time with the same ink and the same pen.”

Aside from this testimony the circumstances of the case strongly tend to connect the accused with the crime. He had been employed by B. F. Humes, who is manager of a restaurant in the city of Omaha. It also appears from his voluntary admissions that he “took the draft from a letter and indorsed it, and got the money on it.” The case was fairly submitted to the jury under instructions which correctly state the law, and their finding is conclusive. The evidence would have warranted a verdict of guilty also on the first count of the information, ánd a failure to convict on both is a result in no way prejudicial to the plaintiff in error. ( Weinecke v. State, 34 Neb., 14.) We find no error in the record, and the judgment of the district, court is accordingly

Affirmed.

The other judges concur.