State v. Kroeger, 47 Mo. 552

State v. Kroeger

47 Mo. 552 | Mo. | 1871

Wagner, Judge,

delivered the opinion of the court.

The defendant was indicted and convicted in the Criminal Court for forgery in the third degree. The charge in the indictment was that on the 11th day of December, 1869, with intent to injure and defraud, he willfully and feloniously falsely made, forged and counterfeited a certain check for the payment of money, purporting to be the act of M. E. Susisky, treasurer of the city of St. Louis, with intent to defraud and injure the Traders’ Bank.

As it is claimed that the indictment is defective, it is sufficient to say that it is abundantly good according to the decision of this court in the case of The State v. Fenly, 18 Mo. 445.

The main question, and only question requiring any attention, is whether the crime with which the defendant stands charged constitutes forgery. In substance the testimony at the trial was that Susisky was treasurer of the city of St. Louis, and that he deposited the moneys of the city in seven of the principal banks of St. Louis, amongst which were the National Bank of the State of Missouri and the Traders’ Bank; that on the 2d day of December, 1869, Susisky was called away from St. Louis to the ■city of New York on private business, and immediately before leaving signed a couple of checks, in the blank form set out in the indictment, upon the various banks in which the moneys of the city were kept, and left them in the office of the city treasurer, uncut from the different check-books of the city for the different banks, and also gave his deputy city treasurer, Wm. Dougherty, a power of attorney to act in his place during his absence from the office; that on leaving the office for New York, he requested the accused, who had formerly been city treasurer, to call into the office occasionally, supervise his deputy, and see that everything was properly conducted; that Susisky, on leaving the office, placed the check-book of the National Bank of the State of Missouri in the large safe of the treasurer’s office, and directed *563Dougherty and the defendant to fill up the checks on the National Bank o£ the State of Missouri to the use of the holders of warrants against the city as they were audited and presented, and if the funds of the city in said hank should become exhausted, then they might have recourse to the Traders’ Bank; that the funds of the city in the National Bank of the State of Missouri and the blank checks of Susisky upon that bank were sufficient to meet all demands of the city, and pay all warrants audited and allowed against it until the return of Susisky, which occurred on the 22d or 23d day of December, 1869 ; that the defendant called in the treasurer’s office almost daily, overlooked the affairs of the office, but filled up no checks to the use of the city or for the use of persons having claims or warrants against it, all this being done by Mr. Dougherty; that on the 11th day of December, 1869, the defendant took from the check-book -of the Traders’ Bank, which was kept in the office desk of the treasurer, and the check set forth in the indictment, inserted the date, the words “ cash or bearer,” and the sum of $6,000 in words and figures; that the bank check had the printed words “order of;” that these words were erased by running the pen across them in double lines, but by whom this erasure had been made could not be stated; that the defendant converted the check thus drawn to his own use, by depositing it on the same day to his private account in the First National Bank, which sent it to the clearing-house, where it was paid by the Traders’ Bank, out of the funds of the city of St. Louis which had been deposited with it.

It is contended that these facts do not constitute the offense of forgery; that defendant’s filling up the check contrary to his authority, and his conversion of the money to his own use, simply amounted to a breach of trust and confidence, for which he could not be punished criminally. In support of this view the class of cases have been referred to which hold that where a person indorses a note in blank, with the understanding that it shall be afterward filled by the maker with a certain amount, and the maker fills the note with a larger amount than that agreed upon, this conduct on the part 'of the maker only amounts to a *564breach of confidence, and it will be no defense to an action on the paper in favor of an innocent indorsee for value.

Those cases are civil cases, and founded upon principles of commercial law. Where there is original authority for the issuance of a negotiable instrument, any latent defect will not avoid or affect it in the hands of a bona fide or innocent holder. A general indorsement on a blank note is a letter of credit for an indefinite-sum; and where it is filled up, and there are no circumstances of suspicion to put the indorsee on his guard or to call forth inquiry, the indorser will be estopped from disputing the regularity of the transaction. (See Tumelty v. The Bank, 13 Mo. 276 ; Farmers’ Bank v. Garten et al., 34 Mo. 119 ; Henderson v. Bondurant et al., 39 Mo. 369.)

In civil cases this rule is founded in commercial policy, and also in the doctrine announced by Lord Holt in Horn v. Nichols, 1 Salk. 289, that where one of two innocent parties must suffer by the frand of a third person, he who has trusted such third person and enabled him to deceive the others, is to abide the consequences of the fraud, however innocent he may be in other respects.

The leading case relied on by the counsel for the defendant is Partman v. Sullivan, 4 Mass. 45. In that case one of the defendants being abroad in Europe, the other, having occasion to be absent, intrusted with a clerk of the house to which they belonged a number of papers on which one of the firm had written the name of the firm in blank. These papers were to be used for particular purposes by the clerk, and he was directed to deliver one of them to a particular individual, who afterward, by fraud and imposition, obtained four of the papers instead of one, and having used one of them for the purpose for which the house had directed a blank indorsement to be given him, and another for making a note, which he negotiated to the plaintiff, with the indorsement remaining in blank, it was held that the indorsers were liable, on the ground that the loss had been occasioned by this misplaced confidence in a clerk too young or too inexperienced to guard against the arts of the person who had obtained the papers. This is the only point there was in the case; but *565Parsons, C. J., in the course of his reasoning, declares that the wrong perpetrated by the party did not constitute the offense of forgery. So, Judge Ryland, in Tumelty v. The Bank, supra, says that the evidence in that case did not warrant the court in declaring that the indorsements were forgeries. On the other hand, where two parties made a note, and one of them, before he delivered it to the payee, altered it so as to make it call for a larger sum, the court in New Hampshire declared the alteration a forgery. (Goodman v. Eastman, 4 N. H. 455; see also Hall v. Fuller, 5 B. & C. 750.)

The above cases rvere decided upon principles not necessarily calling in question their criminal aspect. Because the laAv, on principles of policy, Avill protect a third person who has dealt with an agent AYho has committed a wrong, it does not follow as an inevitable conclusion that the AArrong-doer is to go unpunished.

The statute of this State declares that “every person AYho, with intent to injury or defraud, shall falsely make, alter, forge or counterfeit any instrument or Ayriting, being or purporting to be the act of another, by which any pecuniary demand or obliga-, tion shall be or purport to be transferred, created, increased, charged or diminished, or by which any rights or property Avhatsoever shall be or purport to be transferred, conveyed, discharged, increased, or in any manner affected, the falsely making, altering, forging or counterfeiting of Ayhich is not hereinbefore declared to be a forgery in some other degree, shall, on conviction, be adjudged guilty of forgery in the third degree.” (1 Wagn. Stat. 470, § 16.) This statute makes the crime of forgery more comprehensive than it existed at common laAY.

In Regina v. Collins, 2 Moody & R. 461, it is decided that it is not forgery fraudulently to induce a person to execute an instrument on a misrepresentation of its contents. The same doctrine is repeated in Regina v. Chadwick, 2 Moody & R. 545. Where a person Avrote a promissory note for $141.26, and fraudulently read it to another, who Avas unable to read, as a note for $41.26, and procured him to sign it as a maker, and it was held that it was not forgery. (Commomvealth v. Sankey, 22 Penn. St. 390.) But in Regina v. Bateman, 1 Coxe C. C., the pre*566cise question arising in this case was presented, and it was there held that where a party receives a blank check signed, with directions to fill in a certain amount, and to appropriate the instrument to a certain purpose, and he fraudulently fills in a different amount and devotes the check to other purposes, he commits forgery. Mr. Justice Erie said: “If a check is given to a person. with a certain authority, the agent is confined strictly within the limits of that authority, and if he choose to alter it, the crime of forgery is committed. If the blank check was delivered to him with a limited authority to complete it, and he filled it up with an amount different from the one he was directed to insert; and if, after the authority was at an end, he filled it up with any amount whatsoever, that, too, would be clearly forgery.” And Mr. Justice Patterson said: “I quite agree with my learned brother, that if the prisoner filled up the check with a different amount and for different purposes than those which his authority warranted, the crime of forgery would be undoubtedly made out.”

In Regina v. Minterhart, 7 Car. & P. 652, and 2 Brit. C. C. 486, it was held that if a person having the blank acceptance of another be authorized to write on it a bill of exchange for a limited amount, and he write on it a bill of exchange for a larger amount, with intent to defraud either the acceptor or any other person, it was forgery.

In Regina v. Wilson, 2 Car. & P. 527, it appeared that the prisoner was the clerk of John MeNicoll, and that a bill for £156 9s. 9cL, for which Mr. MeNicoll was bound to provide, falling due on the 8th of December, Mr. MeNicoll on that day signed a blank check, with the signature of John MeNicoll & Co., and gave it to the prisoner, directing him to fill the check up with the correct amount due on the bill (which was to be ascertained by reference to the bill-book), and the expenses (which would amount to about 10s.), and after receiving the amount at the Liverpool Borough Bank, to pay it over to a Mr. Williamson, in order that the bill might be taken up. Instead of doing so, the prisoner filled up the check with the amount of £250, which sum he immediately received at the bank, and without paying any part of the money over to Mr. Williamson, *567retained the whole of it in his own possession, in satisfaction of a claim for salary which he alleged to 'be due to him. On the day after the receipt of the money on the check he sent in an account of his claim, giving his master credit for the sum received on his check. On these facts, Cottman, J., in summing up, told the jury that if they were satisfied that the prisoner was authorized only to fill up the check for the amount of the bill and expenses, and to pay the proceeds to Williamson, and that he filled it up for a larger sum and applied the money when received to his own purposes, that was evidence for their consideration of an intention to defraud Mr. McNicoll, as alleged in the indictment. The jury found the defendant guilty of forgery. The case was afterward considered by the fifteen judges, who unanimously held the conviction right.

In the cases of Regina v. Collins and Regina v. Chadwick, and Commonwealth v. Sankey, the signers of the instruments had not put them in circulation, and by ordinary caution had the power to prevent imposition. But in the present case the check was signed with specific instructions, and, the defendant, in filling up, clearly made a false instrument. I am of the opinion that, under the statute and according to the authority of the adjudged cases, the defendant was rightfully convicted of forgery. ,

Judgment affirmed.

The other judges concur.