State v. Kroeger

1. Practice, criminal — Indictment, allegations in — Repugnancy.—An indictment charged defendant with forging a check “purporting to be the act of M. E. Susisky, treasurer of the city of St. Louis.” The check afterward set out showed the signature of “M. E. Susisky, treasurer.” Held, that the two allegations were not inconsistent with and repugnant to each other. (State v. Einloy, 18 Mo. 445.) 2. Criminal law — St. Louis city treasurer — Blank check, filling out and using for a different purpose from that directed, constitutes forgery. — The treasurer of the city of St. Louis left with A. certain blank checks, with directions to fill them up to the use of holders of warrants against the city; but A. took one of the checks, inserted the date and amount, and the words “cash or bearer” in place of the words “order of,” erased from the printed blank. By whom the words were erased did not appear. A. converted the cheek to his own private use, by depositing it in bank the same day on his private account, and drawing the money on it for his own use. Held, that under the statute law of this State (Wagn. Stat. 470, § 16) he was guilty of forgery in the third degree. As the check had been signed with specific instructions to use it for a certain purpose, A., in thus filling it up for a different purpose, clearly made a false instrument.

Appeal from St. Louis Circuit Court. The first count of the indictment charged that said Kroeger, 11 on the eleventh day of December, in the year of our Lord one thousand eight hundred and sixty-nine, at St. Louis, in the county of St. Louis aforesaid, with intent then and there to injure and defraud, did unlawfully and feloniously falsely make, forge and counterfeit, in county and State aforesaid, a check for the payment of money, purporting to be the act of M. E. Susisky, treasurer of the city of St. Louis, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Missouri, in words and figures following: ‘Office of City Treasurer, ‘No. 143. St. Louis, Lea. 11, 1S69. ‘TRADERS’ BANK, ‘Pay to BEQE5HE2I cash or bearer, ‘Six thousand....... ‘$6,000. United States Internal Revenues Stamp. 2 Cents. lorDollars. ‘M. E. Susiskx, ‘ Treasurer.’ With intent then and there to defraud and injure the Traders’ Bank, a bank at St. Louis, in the county of St. Louis aforesaid, duly incorporated under and by virtue of the laws of the State of Missouri, out of the sum of six thousand dollars, against the peace and dignity of the State and contrary to the form of the statute in such case made and provided.” The second instruction asked by the defendant, and refused by the court, was as follows: “2. If the jury find from the evidence that M. E. Susisky signed the paper set out in the indictment, in blank, and delivered the same to defendant alone, or with another, and gave the defendant authority to fill up said paper, and use the same or its proceeds for certain purposes designated by Susisky, and that the defendant, under this authority, filled up the blanks in said paper, then the jury ought to acquit the defendant, even though they may believe that defendant used said paper or its proceeds for a purpose or purposes not designated by said Susisky.” The testimony of Susisky showed that the printed words “the order of” had been struck out by ink lines; that the words and figures “No. 143,” and the words and figures “December 11, 1869,” “ cash or bearer, six thousand dollars,” had been inserted. The third paragraph of the instruction given by the court, of its own motion, was as follows : “If the jury believe, from the evidence in the case, that M. E. Susisky was, on or about the 2d day of December, 1869, treasurer of the (city of St. Louis, and that at said time he delivered the check described in the indictment to the defendant, already signed by him, with the name of ‘ M. E. Susisky, treasurer,’ with the date, payee and amount left blank, with authority to fill up and use the same for the use and benefit of the city of St. Louis, and to fill up and use the same for no other purpose; and if you further find from the evidence that the defendant, on or about the 11th day of December, 1869, at St. Louis city and county, feloniously filled up said blanks by inserting ‘December 11, 1869,’ ‘cash or bearer,’ ‘ six thousand,’ and ‘ $6,000,’ with intent then and there to use the same for his own use and benefit; and that he did so use the same for his own use and benefit, and not for the use and benefit of said city of St. Louis, with intent to defraud and injure as charged, then this constitutes the crime of forgery in the third degree, and so you should find.” I. As substantially the samo questions are raised upon the motion to quash the indictment and the motion in arrest of judgment, they will be considered together. The allegations in the indictment are repugnant to and inconsistent with each other. In the indictment it is averred that the defendant forged a check which purported to be the check of M. E. Susisky, treasurer of the city of St. Louis, and the check set out in the indictment does not so purport. As to the meaning of the word “ purport,” see Downing v. The State, 4 Mo. 572 ; Bright et al. v. White, 8 Mo. 421; State v. Page & Bacon, 19 Mo. 213 ; 2 Bussell on Crimes, 380 ; Commonwealth v. Kearns, 1 Ya. Cases, 109 ; Arch. Orim. PL, 5th ed., 47; Bex v. Beading, 1 East, 180 ; 2 Leach, C. C., 590; Bex v. Gilchrist, 2 Leach, 657 ; Bex v. Edsall, id. 662 ; State v. Smith, 31 Mo. 120; State v. Waters, 3 Brevard, 507 ; State v. Shawley, 3 Haywood, Tenn., 256. It is true, the instrument set out in the indictment has on its caption the words “ office of city treasurer,” but there is no indication of the office of city treasurer of the city of St. Louis, and the instrument does not so purport. Again, this caption forms no part of the check. It is in nowise necessary to make it a complete instrument. Any one could date a check at the city treasurer’s office. It is also true that the word “treasurer” follows Susisky’s name on the check, but this no more purports to be his act as “ treasurer of the city of St. Louis ” than it does as treasurer of any other city, or corporation, or voluntary society. H. The indictment is insufficient because the offense is not averred in the language of the statute, to-wit: that it does not allege that the instrument set out was, or purported to be, the act of another, by which any pecuniary demand or obligation was, or purported to be, transferred, created, increased, discharged or diminished, or by which any rights or property whatsoever was, or purported to be, transferred, conveyed, discharged, increased or in any manner affected. (Gen. Stat. 1865, ch. 202, p. 795, § 16.) It is true, the case of The State v. Fenly, 18 Mo. 445, decides this point against the defendant, and, as an authority, chiefly relies upon the case of The People v. Rynders, 12 Wend. 425. Both of these cases were decided, however, by only a majority of the court, and they must be admitted to be a departure from the rules of the criminal law which require the indictment to follow the language of the statute upon AYhich it is draAA’n, descriptive of the offense. HI. Where an intent to defraud a particular person is averred it must be shoAvn either, first, that the instrument, if genuine, Would be the obligation of such person; or, second, that the defendant passed, or attempted to pass, the instrument to such person, as true, with knowledge of its real character. (United States v. Shelmire, 1 Bald. 370.) There is no presumption of laAV arising upon the face of the check, that defendant intended to defraud the Traders’ Bank; because, if it were genuine, it would not be the contract of that bank. (2 Pars. Bills and Notes, 61, note.) . And the proof utterly fails to shoAV any such intention to defraud. The defendant never presented the check, for any purpose, to the Traders’ Bank; but, on the contrary, presented it to the First National Bank, where it was deposited to his credit. The third paragraph of the charge or instruction given by the court presents, in substance, to the jury this proposition, to-wit: that if Susisky signed the check in blank, and delivered it to defendant with authority for him to fill up and use it for the benefit of the city of St. Louis, and that defendant, under these circumstances, filled up and used the check for his own use, Avith the intent to defraud, etc., then the jury should find him guilty of forgery in the third degree. We deny that this instruction given by the court correctly presents the law applicable to the facts. On the trial before the Criminal Court, the counsel for the State relied upon three cases decided in England, in which the court held that where checks signed in blank were delivered to the defendants, with authority to fill them up with certain definite sums, and they were filled up with greater sums than those named, and the excess converted to the use of the parties filling them up, they were guilty of forgery. (Regina v. Wilson, 2 Car. & Kerr, 527; Rex v. Minterhart, 2 Brit. C. C. 486 ; 7 Car. & Payne, 652; Regina v. Bateman, 1 Coxe O. C. 186.) In regard to these cases we have to say that they are not in point. The questions in them do not arise in this case. The doctrine of these cases has been decided by this court, in three cases, to be otherwise; in which it has been held by this court that where instruments signed in blank were delivered to third parties, with authority to fill them up with certain specified sums, the fact that they were filled for amounts greater than those limited did not constitute forgery. (Tumelty v. Bank of Missouri, 13 Mo. 276 ; Farmer’s Bank v. Gertin et al., 34 Mo. 119-22; Henderson v. Bendervoort et al., 39 Mo. 373 ; Spitler v. James, 9 Am. Law Reg., N. S., 605.) On same point see Trustees of Iowa College v. Hill, 1 Am. Law Reg., N. S., 744, note ; State v. Flanders, 88 N. H. 324 ; Commonwealth v. Sankey, 22 Penn. 390 ; Hill v. Tennessee, 1 Yerg. 76. The last three cases would seem to establish the principle that if Kroeger obtained the check in question, signed in blank by Susisky, under a false and fraudulent representation or pretense that he would fill up and use it for the benefit of the city of St. Louis, and that if he afterward filled up and converted the check to his own use, it would not be forgery. It is true that in all the text-writers, from Coke and Hawkins down to Wharton, it is laid down that if one be employed to write a will, with instructions as to what it shall contain, and he write the will materially different from the instructions, and fraudulently procure the testator to execute it, under the belief that it is drawn agreeably to his instructions, it will constitute forgery. But wre submit that this is a legal heresy; that the doctrine of the text-writers on this point is not supported by the cases referred to by them, and that it has been denied on principle by all the subsequent cases, with one single exception. This erroneous doctrine is stated in 8 Inst. 170 ; 2 Bast, P. C., 855 ; 1 Hawk. P. C., ch. 20, §§ 2-6 ; Bacon’s Abr., tit. Forgery A; 2 Russell’s Crim. Law, 318-22, and others of a more modern date. The texts cite and are founded upon Comb’s case in Noy’s Reports, 101, and also reported in Moore’s Reports, 769. These texts are opposed by the case of Sir. John Marvin’s will (3 Deyer, 288), which is directly in point, and opposed in principle by the cases of Regina v. Collins, 2 Moody & R. 461, and Regina v. Chadwick, id. 546, decided in England, besides the cases cited herein decided in the United States. There is also one exception to the uniform decisions in the United States in the same direction. We allude to the case of The State v. Shurtliff, 18 Me. 371. Weston, C. J., in delivering the opinion, cites 2 Russell, 317, which, in turn, refers to 2 East, 855; Noy, 101; Moore, 759 (the old Star Chaniber case) ; 3 Inst. 170; Hawk. ch. 21; Bacon’s Abr., tit. Forgery A. And thus the same ancient chronic errors are marshaled without any allusion to the modern cases to which we have above referred. We would refer the court to the opinion of Judge Agnew, of the •Quarter Sessions, in the case of Commonwealth v. Sankey, supra, with the opinion of the Supreme Court by Black, C. J., in the same case, in which the opinion of Agnew, J., is fully adopted, to which opinions we are indebted for some*of the views here expressed. The only case decided in America or England we have been able to find, which appears to cover the principles involved in this case closely, is that of Putnam et al. v. Sullivan et al., 4 Mass. 53. In the case at bar, the check was signed and delivered by Susislcy to Kroeger in blank, accompanied with a trust or confidence, in the language of Parsons, C. J., in the case referred to. And this is the key which unlocks this transaction, and makes the proposition of law involved in it of easy solution. If the check was delivered by Susisky to Kroeger in blank, coupled with a trust or confidence, and that trust or confidence embraced authority for Kroeger to fill it up for any purpose, then there can be no forgery in the case, because then the forgery would be predicated solely upon a mere breach of trust or confidence. The error in the instruction of the Criminal Court, of which we here complain, is apparent in this: that it makes the fraudulent use — and that alone, it may be — of a clearly granted power to fill up a check, a forgery. Now it is perfectly clear, and can not be denied, that the crime of forgery consists of two elements, to-wit: first, a false making; and, second, a fraudulent intent. And the fatal error in this instruction is that it entirely ignores the false making, and tells the jury that although Kroeger may have had power to fill up the check, yet if he did so with a fraudulent intent he is guilty of forgery. Now, if Kroeger had authority to fill up the check, as we have seen, there was no false making, and consequently that element-necessary to constitute the crime of forgery is wanting. We are unable to see any escape from this conclusion. In conclusion, we have only to add on this point that if it be true that Kroeger had authority to act as the agent of Susisky in filling up the check, then it ought to be regarded as having been filled up and made a complete instrument by Susisky himself, in his own proper person; and therefore the transaction disclosed in this case, so far as legal principles are concerned, ought to be viewed in precisely the same light as if Susisky had filled up this check, and thereby had made it a complete and genuine instrument himself personally, and had delivered it to Kroeger with instructions for him to apply it or its proceeds to a particular named purpose, and Kroeger, in violation of such instructions, had converted the check or its proceeds to his own use. This would certainly be a fraud and a wrong on the part of Kroeger, unless he could justify his action; but it must be admitted that a fraud or wrong is not necessarily a forgery, and it is just as certain there would be no forgery in this transaction because there would be no false making. And this, as it seems to us, is the only logical or legal conclusion which can be reached on this point. The check in evidence embraces all the elements contained in the clause of the statute creating the forgery attempted to be charged. (State v. Fenly, 18 Mo. 445; Gen. Stat. 1865, ch. 211, p. 842, § 828.) The indictment not only conforms to the requirements of our statute, but goes far beyond what would be a good and sufficient count under it. It describes the forged instrument by the name by which it is usually known,' and sets it out in its words and figures. It has been urged that the indictment should ayer that M. E. Susisky was treasurer of the city of St. Louis. But at best such averment could only be descripiio personae, as the offense would be complete under our statute if there was no such person as M. E. Susisky, or the corporation of the city of St. Louis, or the office of treasurer of the city of St. Louis, in existence. (Gen. Stat. 1865, ch. 202, § 26.) This is no case of breach of trust. If he had power to make an instrument and utter it, it was simply to fill up the blanks with the name of the holder of a warrant, and fill into the check the amount of the warrant and deliver it in satisfaction, and take up the warrant as a voucher for the check. If he had any authority at all, this was its extent; and if he had this power, he never exercised it in a single instance. All the checks that -were used for the city of St. Louis in the absence of M. E. Susisky, its treasurer, were filled up by Mr. Dougherty, the deputy treasurer, who had power of attorney from Susisky to conduct the office in his absence, which lasted twenty-one days, and during which time the prisoner is said to have filled up checks and drawn out the money of the city of St. Louis to the amount of $46,000 and converted it to his own use. Our statute creating or defining the crime of forgery enlarges upon the common-law definition and covers almost every conceivable alteration or felonious interference with instruments of writing creating or transferring, enlarging or diminishing money obligations. (Gen. Stat. 1865, ch. 202, §§ 8, 16.) No special intent to defraud is necessary to constitute forgery. If the probable or natural consequence of the act be to defraud, that will, in law, constitute the fraudulent intent of the statute, and such intent will be enforced in law. (1 Eng. Crim. Cas. 291; 2 Russell on Crimes, 862 ; Arch. Crim. Pr. 342; Regina v. Beard, 34 Eng. Com. Law, 329; Regina v. Parrish, id. 307; 8 Oar. & P. 94.) The making a false and fraudulent instrument over a genuine signature is as much a forgery as the making a false signature to a genuine writing. (Halbv. Fuller, 5 B. & O. 750.) The instrument must be genuine in all particulars. (Rex v. Minterhart, 7 Car. & P. 652; Regina v. Wilson, 2 Car. & K. 528 ; 2 Coxe C. C. 360, 426 ; Rex v. Hart, 1 Moody C. C. 486 ; Regina v. Balmer, 1 Coxe C. C. 186.) Authority to do a particular thing furnishes no authority to do another and different thing. (2 Bish. Crim. Law, 306, 477.) A signature fraudulently obtained has been held to be a forgery. (State v. Shurtliff, 6 Shepley, 368; Rex v. Hart, 9 Car. & P. 752.) In Rex v. Hart, Ryan & M. Crim. Oas. 486, it was determined by all the judges of England, without a dissent, that the filling up a blank check with ¿¡500, when authority was to fill up for A200, was forgery. The same doctrine is clearly recognized in 2 Russell on Crimes, 321; Arch. Crim. Pr. 342. The act must'be authorized, otherwise it is a forgery. (Regina v. Beard, 34 Eng. C. L. 497; 7 C. & B. 294; Goodman v. Eastman, 4 N. H. 455.) The entire argument of the learned counselors for the prisoner proceeds upon a mistaken notion that the principles applicable to civil cases furnish the rule for determining what acts are necessary to constitute the crime of fo/rgery in a State prosecution. • In two or three of these civil cases remarks are found apparently favoring their position. Where this error occurs it is mostly out of mere inadvertence, and can furnish no force or authority in a criminal case, as the matter of mere civil liability could in no sense determine the question of the guilt or innocence of the party filling up the blanks contrary to his authority. This question could alone be determined by the criminal tribunals of the country, so as to furnish precedents and authority for the case at bar. It is claimed and stated that the doctrine on this subject is different in this country from that of England. This we deny. English courts have repeatedly held that forgery could not be pleaded in bar against the holder; but the same courts have as often held the accused guilty of forgery on criminal prosecution. (2 Car. & K. 528 ; 7 C. & B. 652; 1 Coxe O. C. 186 ; 1 Moody C. C. 486; 2 Coxe C. C. 360, 426.) The doctrine held on the civil side of the court was clearly and fully laid down. (Russell v. Longstaff, Dough 514.) This doctrine has never been departed from by the English courts, so far as we have been able to find. It is contended that this doctrine has recently undergone a change in the courts of that country. (See Awde v. Dixon, 6 Excheq. 869.) Parke, B., in his opinion in this case, remarks that a party who takes a blank note can not recover upon it unless the person from whom he receives it had a real authority to deal with it. There was no such authority in this case. State v. Santee, 22 Penn. 39, and State v. Flanders, 38 N. H. 324, are cases where the signatures to genuine instruments were procured through fraud and false pretenses, and therefore not forgeries; in which we fully concur. This has always been the doctrine of the Court of King’s Bench and all other courts of England, except one case at Star Chamber, many years ago, in the execution of a will, decided ex parte. (Regina v. Collins, 2 Moody & R. 461; Regina v. Chadwick, id. 545.) We have, in conclusion, one more consideration to urge. It is the relation sustained by the forger to the instrument forged, and the fund sought to be reached by this forgery. This check was forged in the city treasurer’s office. The funds of the city against which it was drawn were on deposit for the city in its banks of deposit. The prisoner knew he had no power to erase and fill up the check for his own use. He also knew that no one could confer any such power upon him. He knew the fund could not be interfered with without the intervention of a joint maker. Until the co-surety has joined in its execution by signing the space left by defendants for his signature, it was invalid and incomplete. It was not a note signed in blank to be filled up. It was a joint note, signed by one of its makers only, and could not become complete until the other had signed. And the plaintiff took it solely on the false representation that the defendant had authorized it to be delivered as a complete and binding instrument. In principle, this case is not unlike the creation and delivery of a note by affixing the name of the maker without any authority whatever.' The declaration made, that the party signing the name had authority to use the name of another, could m no sense make the payee a bona fide holder unless it could be shown that he had authority -to sign the name of the maker.