37 F. 108 | U.S. Circuit Court for the District of Western Tennessee | 1888
The indictment for forgery of the treasury warrant issued from the post-office department for transportation of the mails, and set out in hxc verba, avers that the defendant did, “with intent to defraud, falsely make and forge the name of ‘.Jas. J. Morgan’ on the back of a warrant,” etc., (describing it.) The warrant, as described, and as shown by its words, is one of the securities or obligations of the United States which section 5414 of the Revised Statutes of the United States was designed to protect against forgery, counterfeiting, or altering “with
In the ease of U. S. v. Carll, 105 U. S. 611, the defect was that the indictment for “ passing, uttering, and publishing” a forged obligation under Rev. St. § 5431, did not aver a guilty knowledge of the forgery by the defendant, wherefore the “intent to defraud” was not described sufficiently by using the language of the statute in that section, which is identically the sanie as that used in section 5414, which we are considering. But the difference in the character of the two offenses, in this regard, is quite obvious. One may pass a forged instrument innocently, because he does not know it to he forged, and believes it to he genuine; hut one cannot innocently make or himself forgo the instrument without guilty knowledge of the fact of the want of genuineness, if his intention be “to defraud,” in the language of the statute. He might, without intention to defraud, make such an instrument, or counterfeit it by copying it or otherwise imitating it, idly, say, or for some lawful purpose; but it is entirely sufficient in and by the very language of the statute to negative that kind of innocent conduct by averring that the forgery was done with an intent to defraud. The difference is in the essential nature of the two offenses, and the case falls directly within the principle announced as an exception to the rule in the case of U. S. v. Carll, supra: “Unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.” That is the case here. U. S. v. Britton, 107 U. S. 655, 661, 2 Sup. Ct. Rep. 512. Nor is this case like that of Hooper v. State, 8 Humph. 92, which was, again, an indictment. for passing a counterfeit bank-note, where it was held that the indictment did not sufficiently charge the intent to defraud the person to whom the note ivas passed. That person might have known the note to be spurious, and so would not be defrauded, or some other circumstance might intervene to relieve the act of the fraudulent intention, which fact would be not at all inconsistent with the act of passing, where
The next objection is that the indictment is only for the forgery of an indorsement upon the post-office warrant, which is not within the Revised Statutes, § 5414, but is at most only a common-law or state offense, of which this court has no jurisdiction. This is a very narrow view of the statute, and trims it to dimensions that would very materially impair its usefulness, and leave the obligations and securities of the United States at the mercy of forgers and counterfeiters. I do not comprehend why the name, of the payee is not as much a part of the instrument as that of him who, in behalf of the United States, signs the warrant or check. It is conceded that it is so, as appearing on the face of the instrument, but it is denied that it is so when placed on the back of it, because, it is urged that it is then a more private writing used for a purpose wholly independent of the warrant, and only to pass title to it; and that it is no more forgery than it would be to hand the warrant over to another, if it were payable to bearer, as it might be, and pass it by mere delivery. It was very nearly held in U. S. v. Long, 30 Fed. Rep. 678, that the mere impersonation of the payee would be forgery. Certainly it is, if, as in that case, the name of the payee was signed to the receipt upon the money-order by the person impersonating him, and that under a statute quite as general as this we are considering. So, too, in Ex parte Hibbs, 26 Fed. Rep. 421, 431, a postmaster who issued money-orders genuine in their form and substance to all intents and purposes, so far as these qualities related-to his power to issue them, but designed to accomplish his fraudulent purpose of appropriating to himself, under that form of genuineness, the money belonging to the funds provided to pay monejr-orders, was held guilty of forgery under a statute quite as general as this. He made out'the orders to a fictitious person, used the name of that fictitious person through a bank to collect the money, and it was forgery. It is obvious to the court that the principle of these cases is correct. The very fact that the warrant is made payable “to order,” rather than “to bearer,” when it would pass by delivery, like a banknote; shows that the practice of so writing them is intended to bring the indorsement within the protection of the law against forgery. It constitutes about all the value there is in so writing them, and the writing the name of the payee falsely and fraudulently on the back is just as much a forgery of the instrument as any other fálse writing concerning it would be. It is in every legal sense a part of the instrument itself.
The other of these two indictments is drawn under Rev. St. §§ 5469, 5470, and charges in the first count that the defendant took from the mail, feloniously, the letter containing the above-mentioned warrant, and then and there opened and embezzled the said letter; and, in the second count, that he did feloniously “receive” the said check “ set out by words
The last objection is that the second count should be complete within itself, and should not refer to the other count in aid of its averments. That is undoubtedly the best form of good pleading. Whether a count drawn as this is could be sustained at common law is very doubtful. Perhaps it could not; and there seems to be authority both ways. Rut our Revised Statutes, § 1025, forbid us to quash the indictment for that delect of form, as I think this clearly is, and we must therefore amend it by overlooking the defect, and reading the averments as if- the words of the first count referred to as describing the warrant were inserted in this second count itself. It is not a technical amendment, but amounts to the same thing. I wish to say, however, that" the court cannot ap