16 Mont. 138 | Mont. | 1895
Phillip P. Vineyard, the appellant, was con
The information under which he was tried charges that said Vineyard “did willfully and unlawfully and feloniously and falsely and fraudulently, forge, utter, pass, and publish, as true and genuine, to one John Stromberg and one Jerry Mullins, a copartnership doing business under the firm name and style of Mullins & Stromberg, in Butte City, in said county and state, a certain writing on paper and check for the payment of money, and instrument in writing, of the tenor, purpurt, and effect following, to-wit:
‘Butte, Mont., Jan. 24, 1895. No. 1,152.
Butte Sampling Works. H. C. Carney, C. H. Hand. State Savings Bank: Pay to H. J. Swanson or order $85 83-100 (eighty-five and 83-100 dollars). [Signed]
H. C. Carney, Manager. Butte Sampling Works.
[Indorsed] H. J. Swanson. Mullin & Stromberg. First National Bank. Paid Jan. 28, 1895. Paying Teller, Butte, Montana. ’
“With intent in him, the said defendant, thereby, and in the manner and form aforesaid, to willfully and unlawfully and feloniously, and falsely and fraudulently, cheat and defraud the said John Stromberg and the said Jerry Mullins (Mullins and Stromberg, as aforesaid) of the said sum of eighty-five and 83-100 dollars, contrary, etc.”
In the argument of the case, appellant’s counsel urged the insufficiency of the evidence to justify a conviction, and stated that he relied upon that assignment principally.
It appears that since November or December, 1894, defendant and one H. T. Swenson, and two others worked together under a mining lease. It was agreed in writing that shipments of ore be in the name of H. T. Swenson. On January 24, 1895, defendant went to Swenson, and asked him his initials. Swenson said, ‘ ‘H. T. ’ ’ Defendant told Swenson that he had delivered “that ore” (referring to a shipment) at the Butte
The defendant testified that he had given the name of H. J. Swanson to the sampling works in order to avoid trouble, in the way of attachments, if he used his own name; that the next day after he had cashed the check the several lessees had figured on their expenses, and the others were in debt to defendant; that Swenson declined to pay anything and threatened to arrest defendant for forgery unless defendant surrendered
Defendant denied that the agreement to ship was still in force. Swenson, in rebuttal, said it was.
From all these material facts, supplemented by others of minor importance, the jury were justified in finding that the defendant knew that the check was not intended for him, but for Swenson, and was so intended under the terms of the agreement between the defendant and his co-lessees. We are convinced, too, by the evidence, that, when defendant and Swan procured the money on the check, defendant’s purpose was to have Stromberg cash it, as if doing so for the payee, Swenson or Swanson, and that he willfully meant to mislead and did deceive Stromberg into the belief that he (Vineyard) was the person to whose order the check was drawn. His silence when Stromberg asked for identification, and when Swan said he knew him, is, by itself, almost enough to convict him, for it is inexplicable with the actions of an honest man under similar circumstances. If a man goes to a stranger with a check made out to another, permits himself to be identified as the real payee, and secures the amount of the check as an accommodation, after making a fictitious or forged-indorsement thereon, we unhesitatingly say that his intent is prima faoie criminal,
The defendant says that “Swanson” was a fictitious name. But, unfortunately for him, it is forgery to sign a money order or check of apparent legal efficiency in an assumed name, if the name was assumed to defraud the person to whom the order or check was given; or it may be forgery to sign the name of a nonexistent person, if under such circumstances as are likely to defraud. (Wharton’s Criminal Law, §§ 659, 660; Bishop’s Criminal Law, § 587.)
The check was apparently sufficient upon its face to prejudice the rights of another person, if falsely made, or passed with a fraudulent purpose. It was well calculated to deceive men of business capacity, and did deceive Stromberg.
The cunning of defendant, in misspelling Swenson’s name, tends to show some deliberation in the method of the offense; but the similitude between ‘ ‘ Swenson ’ ’ and ‘ ‘ Swanson ’ ’ was close enough to be submitted to the jury, and it was for them to say whether, under all the facts and * circumstances, the forgery was adapted, under the rules of law, to carry out the intended fraudulent purpose. (Bishop’s Criminal Law, §§ 583, 592; Thompson v. State, 49 Ala. 16; United States v. Mitchell, 1 Baldw. 366, Fed. Cas. No. 15,787; State v. Givens, 5 Ala. 747; State v. Hahn, 38 La. Ann. 169; Peete v. State, 2 Lea (Tenn.) 513; State v. Covington, 94 N. C. 913; State v. Baumon, 52 Iowa 68.)
Certain errors are assigned in the refusal to give several instructions .offered by the defendant upon the degree of certainty necessary to exist in the minds of the jury before they could convict. But the court fully charged upon the presump
Affirmed.