State v. Wooderd

| Iowa | Jun 19, 1866

Dillon, J.

i! crimiÍ Srntim oí genuine receipt. The defendant’s attorney makes the point that the whole case, take it in any view of it, does not establish a,erime. This objection, if well founded, would dispose of the cause. It will, therefore, • ' bQ first examined. We. state the defendants .argument on this point in the language of his attorney.

“ Those paper receipts” (so the attorney argues) “gave defendant no legal claim against the estate of Armstrong. They could not as a legal fact be fruitful of any advantage-to defendant as regards the estate of Armstrong.

“ The law will not presume an intent to defraud from an act which could not legally be the means of doing so. Long was the only man who could have used these papers to the disadvantage of the estate; but Long was neither a party to them, nor one having an intention to use them. They were no legal evidence of any claim of defendant against the estate. Nor could Long use them as such till delivery to him, which had not been made. Nor did they give defendant any right against Long if the payment was voluntary. The act charged was consequently no crime.”

This argument overlooks the consideration of injury or prejudice to Armstrong and rests upon the idea that it is a defense, if the defendant could not legally and successfully reap a personal advantage from his wrongful act.

The making or alteration of any writing with a fraudulent intent, whereby another may be prejudiced, is forgery. It is not essential that any person should be actually injured.

It is sufficient that the instruments, if genuine, would be the foundation, or the evidence of another’s;liability,, A material alteration in part of a genuine instrument,whereby a new operation is given to it, is a forgery of the,, whole. These propositions of law are undisputed. Ward's Case, Hil., 13 Geo. I; Rex v. Ward, 2 Str., 747; 2 Ld. Raym., 1461; 2 East P. C., 861; Barnum v. The State, 15 Ohio, 717; Arnold v. Cost, 3 Gill, and J., 220; 1 Hawk. P. C., ch. 70, sec. 2; The State of Iowa v. Thompson, 19 Iowa, 65; 2 Russ, on Cr., 361.

In view of these principles and the facts of this ease, the defendant’s positions are unsound. 'It is plain that the receipts in question, if genuine, would found a liability, or be the evidence of a liability on the part of Armstrong. What liability ? This: that he would, have to apply the $600 mentioned in the receipts toward the payment of the long notes. If he had brought action on these notes, these receipts, supposing them genuine, would defeat it. Long could use them for this purpose, certainly, by adopting the act of Wooderd in making the payment. If Armstrong had brought his action to foreclose the Long deed of trust, making, as he properly might, Wooderd, as a subsequent purchaser, a party defendant, it cannot be doubted, that Wooderd could himself use the receipts, to defeat the action, at least, so far as respected his own land. It is plain, therefore, that Armstrong might be prejudiced by the alleged forgery, and this is all that the law requires. It is plain, also, that the receipts could be made “ fruitful of an advantage to the defendant.”

Again: Wooderd, according to the receipts, paid the money to Armstrong, the latter agreeing to apply it on the notes of Long, in the payment of which the defendant had, as a subsequent purchaser of a part of the land securing these notes, a direct interest. Now, if after this the notes are transferred without any indorsement of payment thereon, and the receipts are set up against the indorsee and defeat him, Armstrong would be liable to such indorsee for the amount received by him when he sold the notes (Cheshire v. Watson, 18 Iowa, 203); and in this way he might also be prejudiced. And it is more than probable that if the notes were transferred after payment, and the amount omitted to be indorsed, that Armstrong might be made liable to the party who paid the money to an action for money had and received or on the case.

In other words, the party paying might not alone be confined to setting up the payment in defense to the notes. This point, however, is not necessary to be decided. Seé Watson v. Cheshire, supra, and authorities cited.

In considering this objection we have viewed the case as the State would have a right to insist upon it to the jury, and thus viewing it we have, we think, demonstrated that the “ alteration of the receipts in the manner alleged by the State would be a crime.”

On the State’s theory, the defendant had obtained credit on his own notes for the payments mentioned in the receipts, and by altering them endeavored to get the benefit of it again, or at least to make the estate apply it to the payment of another debt than the one to which it was to be and had been applied:

II. The defendant assigns for error the action of the court in allowing to be read as evidence certain entries from the book of Armstrong, and in not excluding the same on motion. At the time of the trial, Armstrong was dead. The entries referred to were in a “Note Book” or “Register” kept .by him. These entries described the four notes of Wooderd to Armstrong, referred to in the statement, and across the three first were written the word “paid,” and they were crossed out. Opposite the fourth note for $363.66 (of Wooderd to Armstrong) were the following entries:

“ April 11, 1861, paid,..................... $200 00

April 27, 1861, paid,..................... 100 00

July 17, 1861, paid,...................... 100 00

February 26, 1862, paid,.................. 400 00

January 10, 1863, paid,................... 333 23

February 7, 1863, these notes paid and canceled by payment of balance,............ 70 00 ”

These entries likewise described the two Long notes for $319 and $81, and consisted of credits of sundry receipts of interest up to May 21, 1868, followed by tbe words: “Bo’tby W. D. MeOash.”

There was no entry of any payment of the principal.

s. evi¿ooksor person, The State offered the book containing these entries, to establish its .theory of the case as given in the statement, The entries, were shown to be in Armstrong’s handwriting, but the witness did not know when they were made, or whether they were made at or near the dates of the transactions entered. The book itself is not before us.

This general subject will be found much discussed and the authorities collated in The County of Mahaska v. Ingalls, 16 Iowa, 81" court="Iowa" date_filed="1864-04-18" href="https://app.midpage.ai/document/county-of-mahaska-v-ingalls-7092945?utm_source=webapp" opinion_id="7092945">16 Iowa, 81, 87, and we have a statutory provision upon the subject (Rev., § 8998), but by statute “ the rules of evidence in civil cases are applicable also to criminal cases.” Rev., § 4805. These entries, it will be perceived, relate both to the Wooderd and Long notes.

If those in relation to the Long notes were offered, as we suppose they were, as evidence to show that inasmuch as there was no entry of the payment of the principal of these notes, therefore it was legitimate to infer that no such payment had been made, we say if the entries in relation to the Long notes were offered and used for any such purpose, they were incompetent.

The chief ground upon which such entries are admitted as evidence, is that they were hostile to the interest of the person making them, and this hostility must be made clearly to appear. Rev., § 3998; Mahaska Co. v. Ingalls, supra, 81, 90, 96, and authorities cited.

If payment of the Long notes had been made to Armstrong it would have been for his interest, and not against it, to omit to make the entry. The entries in relation to the Long notes were, therefore, not admissible to show that these notes had never been paid.

In relation to the admission of the entries respecting Wooderd’s own notes, we cannot say in the absence of the book itself that there was error in this respect. These entries showing a payment of these notes seem to be clearly against the interest of Armstrong.

to weight. 3.-in-struction as The only doubt we have on this head is, that there was no proof that the entries were “ made at or near the time of the transactions ” entered. That the entries must be so made seems to be required by the statute (Rev., § 3998), although aside from the statute this is not absolutely necessary, the chief ground of their admission as evidence being that they are against the interest of the person making them. 1 Greenl. Ev., § 147; Mahaska County v. Ingalls, supra, 96, and cases cited. Whether the statute is simply declaratory without being restrictive, or whether it is restrictive of the common law rule, we need not determine, because the book of entries was before the court below, and may have afforded satisfactorv evidence on its face that the' entries (conceding this to be indispensable to tbe competency of the evidence) were “made at or near the time of the transactions” entered.' The jury COurt in this case was), that though this testishould be told, certainly, if requested (as the mony is competent, yet, as the right of cross-examination does not exist, it is not highly favored by the law, and the jury are at liberty to give it such weight and value as under the circumstances they think it justly entitled to. 3 Am. Law Reg. (N. S.), 641.

4.-forgery: compentcy III. It is next claimed that there was error in refusing to allow the defendant to prove by the witness Robinson that he had paid the Long notes. The record recites that “the defendant offers to show by the witness (Robinson) that then (at the time of notes.” This the court refused to allow the defendant to defendant’s interview with Robinson) he had paid the Long do. This evidence was clearly competent. The State claimed that the defendant never paid the Long notes. The defendant claimed that he had paid them, and received the receipts in question as evidence of such payment.

This was a controverted question on the trial Other evidence of this character was received, and impeaching testimony introduced to rebut it. It did tend to support the defense to show that in point of fact the defendant had paid the Long notes as stated in the receipts.

And so long as this was a disputed fact, it was error in the court to refuse to receive the proposed evidence. It is stated by the attorney-general in his argument that he is assured by the district attorney that in point of fact the defendant’s evidence of payment, which the court rejected, was the defendant’s own statements to Robinson that he had paid the notes. But the record is otherwise, and we act upon it as it is.

s. — ip. evidence. IY. One Paine gave material evidence for the defendant. On his cross-examination, the State asked him the question: “ Were you not a witness in the case of one Simeon Waterman in this court, and were you not in that case successfully impeached ? ” The defendant’s counsel objected to this question, but the objection was overruled by the court, and the witness “ declined to answer whether he was impeached.” Referring to this circumstance, the defendant asked the instruction: “A witness cannot be impeached by asking him if he were not successfully impeached in some law suit? Nor can you consider the fact that to such a question the witness declined to make answer.” The question was improper. How was the witness to answer whether he was success/u% impeached ? If the court had given the instruction, it might have cured the error.

gery-.intent, The court charged the jury, in substance, that even if the defendant did pay off the Long notes, yet if, to make out and prove.a claim against the estate of Armstrong, he altered receipts which he had before received, to evidence payments made on his own notes, such alteration would be criminal.

And, consistently with this doctrine, the court refused to charge “ That there could have been no intention to defraud the estate of Eobert Armstrong in using those receipts, if there were really due defendant the sums named therein.” This view of the law taken by the court below was correct. (A man cannot be the judge of the justness of his claim; and upon the assumption of its justice, fabricate or forge writings to evidence its existence. No man, and particularly no man’s estate, would be safe if any such doctrine as that contended for by the defendant were to prevail.

Because a man justly owes, but unjustly denies his indebtedness to me, shall I therefore be justified in signing his name to an obligation to pay it ?

The criminal intent which the law infers from forging an instrument, and using it as evidence of a claim against the person whose name is forged, cannot be negatived by proof that the claim was in reality a just one.j That such is the law is put at rest beyond any doubt, by the case of the Queen v. Hill, 2 Moody & Cr., 300; S. C., 8 Car. & P., 274 (1838); and see also Queen v Cooke, 8 Car. & P., 582; 34 Eng. C. L., 535; Queen v. Beard, Id., 143; S. C., 34 Eng. C. L. R., 329; Queen v. Forbes, 7 Id., 224; S. C., 32 Eng. C. L., 497 (1835); Queen v. Birkett, Russ. & Ry. C. C. E., 86 (1805); Perdue v. State, 2 Humph. (Tenn.), 494 (1841). In Queen v. Wilson, 1 Den. Cr. Cas., 282 (1847); S. C., 2 Can. & K., 527, A., authorized by B., his master,‘to fill up a check for a certain amount, and to use it for a certain purpose, filled it up for a greater sum, and collected the money and, retained it for himself; it was holden a forgery; and it was further held that the circumstance, that the prisoner alleging a claim on his master for a greater sum as salary then due, was immaterial if true. And see also Reg. v. Martin, Ryan & M. C. C., 483; S. C., 7 C. & D., 548; Reg. v. Greach, 9 C., & P., 499; 37 Eng. C. L., 195; 2 Bisb. Cr. Law, § 492. In the case at bar it is not necessary to express any opinion as to the correctness of the first point decided in the Queen v. Wilson, supra, viz., that fraudulently filling up a check for a greater sum than authorized, is forgery. We express no opinion. We cite the case on the other point, the intent to defraud.

All of the material questions presented by the record, are disposed of by the views heretofore expressed. We need not therefore examine the instructions in detail. Judgment reversed and cause remanded for a new trial.

Reversed.