28 Minn. 52 | Minn. | 1881
The defendant was indicted, under Gen. St. 1878, c. 96, § 2, for uttering and publishing as true a false deed, knowing the same to be false, with intent to injure and defraud. The indictment sets out in hcee verba the alleged false deed, which purports, on its face, to be a deed of conveyance of land by one James D. Hoitt to Joseph F. Miller, and to be signed by H. H. Willson, per procuration of said Hoitt, the form of the signature being “James D. Hoitt, by H. H. Willson his attorney in fact.” Upon the trial of the cause it
Upon this state of facts appearing from the evidence, when the prosecution rested, the defendant moved for a dismissal of the action, upon the ground that.the instrument was not a “false” deed. The court denied the motion, and the case, having been submitted to the jury, resulted in a verdict of guilty, whereupon defendant moved for a new trial, which was denied, and defendant appealed. The same question was raised by defendant in other forms, and numerous exceptions were taken by him to the rulings of the court on other questions, but, under the view we take of the law applicable to the case, the foregoing is a sufficient statement of the facts for the purposes of a decision of this appeal. The real question, therefore, is whether an instrument, which appears on its face to have been executed by an agent authorized, while in truth he was not so, is a false instrument; or, to state the proposition in another form, when an instrument is really, in all its parts, written or signed by the individual by whom it purports to be written and signed, and the falsity consists, not in the simulation or counterfeiting of the act of another, but in the false assertion which the instrument contains that he, the writer and signer thereof, is authorized so to make and sign it in behalf of another, as it purports to be, is it a false instrument, within the meaning of the statute, and, upon negotiation of such instrument by the person who has so prepared it, is that person guilty of uttering a false instrument?
The terms “false” and “forged, ” as used in section 2, under which this indictment was framed, are used in the same sense in which these wqrds are used in section 1. Section 2 was never designed to apply to a different class of instruments from those referred to in section 1. Section 1 refers to. the making of the instruments, and
In State v. Young, 46 N. H. 266, the court say: “The term ‘falsely’ * * * has reference, not to the contents or tenor of the-writing, or to the fact stated in the writing, * * * but it implies, that the paper or writing is false, — not genuine, fictitious, not a true writing, without regard to the truth or falsehood of the statement it contains.” In Rex v. Arscott, 6 Carr. & Payne, 408, the defendant had indorsed on a bill of exchange, “Received for R. Aickman. G. Arscott.” Littledale, J., says: “To forge a receipt for money is writing the name of the person for whom it is received. But in this case the acts done by the prisoner were receiving for another, and signing-his own name.” In Regina v. White, 2 Carr. & Kir. 404, a bill of exchange, payable to the order of Thomas Tomlinson, was endorsed
In Heilbonn’s Case, 1 Park. Cr. Rep. (N. Y.) 429, a bill of exchange had been made payable to the order of Chas. Macintosh & Co. It was endorsed by Heilbonn, “Received for Chas. Macintosh & Co. Alex. Heilbonn.” Heilbonn had no authority to make the endorsement. The court said: “It is the essence of forgery that one signs the name of another' to pass it off as the signature, or counterfeit, of that other. This cannot be when the party openly and on the face of the papers declares that he signs it for another.” In Commonwealth v. Baldwin, 11 Gray, 197, the prisoner made and delivered a note signed “Schouler, Baldwin & Co.,” stating at the same time that he and Schouler composed the firm. There was no such partnership. It was held not to be forgery. The court say: “As a general rule, however, to constitute forgery, the writing falsely made must purport to be the writing of another party than the person making it. The mere false statement or implication of a fact not having reference to the person by whom the instrument is executed, will not constitute the crime.” This case is referred to approvingly in Commonwealth v. Foster, 114 Mass. 311, and the court there say: “The distinction is plainly drawn * * * between one who assumes to bind another, either jointly with himself or by procuration, however groundless and false may be his pretence of authority so to do, and one who signs in such a manner that the instrument may purport to bear the actual signature of another party having the same name.”
To the same effect is the case of Mann v. People, 15 Hun, 155. In this case, the defendant made and issued an instrument for the payment of money, purporting to obligate the county of Saratoga, and to be issued pursuant to a resolution of the board of supervisors of the county, and signed Henry A. Mann, treasurer. Defendant had no authority whatever to sign or issue such an instrument. The court decided that this did not constitute forgery, and held, in substance, that when one executes and issues an instrument, purporting, on its face, to be executed by him as agent of a principal therein named, he
Now, in the case under consideration, the deed does not purport to be the personal act of Hoitt. The instrument, on its face, purports to be defendant’s own act, but one which he was authorized to do for and in the name of Hoitt. The reader of the deed could not misunderstand it. By its terms, the defendant declares that he made the writing, but that he so made it for Hoitt and by authority from Hoitt. The falsity, if any, consists in the claim of authority from Hoitt. The law, as we have seen, is well settled that if a person sign an instrument with his own name per procuration of the party whom he intends or pretends to represent, it is no forgery, it is no false making of the instrument, but merely a false assumption of authority. This deed, therefore, is not a false deed, and consequently, in uttering or publishing it, defendant was not guilty of uttering or publishing a false deed. If defendant made a false and fraudulent claim of authority to execute this deed, and by means thereof obtained money or property from another, he might be guilty of obtaining money or property under false pretences, but not of the crime with which he is charged in this indictment. We are, therefore, of opinion that the court below erred in not granting a dismissal of the action, upon motion of defendant, when the state rested. The defendant was, upon-the evidence, clearly entitled to a dismissal of the action, or to-a verdict of acquittal under the direction of the court.
Ordered, therefore, that the judgment be reversed, and defendant absolutely discharged.