Brazil v. State
| Decision Date | 07 February 1903 |
| Citation | 43 S.E. 460,117 Ga. 32 |
| Parties | BRAZIL v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A check purporting to have been drawn upon a chartered bank of this state by the person whose name is signed thereto, and made payable to the order of a designated individual, has apparent "legal efficacy," though it be indorsed not in the name of the payee, but in that of another person. Accordingly, an indictment charging the forgery and felonious uttering of such a check is not open to general demurrer nor, in view of the system of code pleading which obtains in this state, is such an indictment fatally defective in that it fails to allege an intent on the part of the accused to defraud a particular person.
2. Where, under a penal statute, an offense may be committed by the doing of any one of several forbidden acts, a conviction may be had upon an indictment which, in a single count charges the accused with the commission of two or more of them, if there be satisfactory proof that he committed at least one of the acts therein specified.
3. Proof that the accused is a person who has borne a good character is to be considered by the jury, not by itself alone, "outside of the other evidence in the case," but in connection with all other pertinent evidence tending to establish his guilt or innocence.
Error from superior court, Bibb county; W. F. Felton, Jr., Judge.
Emmett Brazil was convicted of forgery, and brings error. Affirmed.
John R. Cooper, for plaintiff in error.
Wm. Brunson, Sol. Gen., for the State.
The accused, Emmett Brazil, was brought to trial on an indictment containing two counts, one charging him with the offense of forgery, and the other charging that he did "falsely and fraudulently pass, pay, and tender in payment to H. Kessler" the paper alleged to have been forged by him. This paper was characterized as a check, drawn in the following form: On the back of the instrument was the indorsement, "Emmett Brazill."
The indictment was demurred to by the accused on the general ground that it did not set forth any offense under the laws of this state, and also upon the special grounds (1) that no attempt to defraud any particular person was alleged; and (2) "because said bill of indictment does not allege that the check [was] indorsed by Frank Brazill, but charges the same to be indorsed by a different person, to wit, Emmett Brazill." The demurrer was overruled, and the accused sued out a bill of exceptions in which he complained of this ruling. A trial was had on the merits, and resulted in a verdict of guilty, the jury returning a finding that the accused had committed the offense charged in the second count in the indictment. He made a motion for a new trial, but it was overruled; and he thereupon sued out another bill of exceptions, in which he assigned error upon the action taken by the trial court with respect to this motion.
1. At common law no instrument which would not, if genuine, be of some "legal efficacy" was the subject-matter of forgery. Clark's Cr. Law (2d Ed.) 338-340; Hughes' Cr. Law & Proced. § 909; 2 Bish. New Cr. Law, § 533. In other words: "An instrument which is void on its face is not, as a general rule, the subject of forgery, because it has not the capacity of effecting fraud." 13 Am. & Eng. Enc. of Law, 1093, 1094. That this is true has several times been recognized by this court. Williams v. State, 51 Ga. 535; Wilcoxson v. State, 60 Ga. 184; Allgood v. State, 87 Ga. 668, 13 S.E. 569. For a full discussion on the subject and for instances showing the application of the rule which obtained at common law, see the following carefully considered cases: Wall's Case, 2 East, P. C. 953; Moffatt's Case, Id. 954; Hawkeswood's Case, Id. 955; Commonwealth v. Ray, 3 Gray, 441; State v. Smith, 8 Yerg. 150; People v. Galloway, 17 Wend. 540; People v. Harrison, 8 Barb. 560; Butler v. Commonwealth, 12 Serg. & R. 237, 14 Am.Dec. 679; Commonwealth v. Hinds, 101 Mass. 209; State v. Covington, 94 N.C. 913, 55 Am.Rep. 650; State v. Dunn, 23 Or. 562, 32 P. 621, 37 Am.St.Rep. 704; Rembert v. State, 53 Ala. 467, 25 Am.Rep. 639; Thompson v. State, 9 Ohio St. 354; Rollins v. State, 22 Tex.App. 548, 3 S.W. 759, 58 Am.Rep. 659; State v. Johnson, 26 Iowa 407, 96 Am.Dec. 158; State v. Hilton, 35 Kan. 338, 11 P. 164; Terry v. Commonwealth, 87 Va. 672, 13 S.E. 104; Gutchins v. People, 21 Ill. 642; In re Benson (C. C.) 34 F. 649; Raymond v. People, 2 Colo. App. 329, 30 P. 504; Cunningham v. People, 4 Hun, 455; People v. Drayton, 168 N.Y. 10, 60 N.E. 1048; State v. Briggs, 34 Vt. 501; Reed v. State, 28 Ind. 396; State v. Anderson, 30 La. Ann. 557; Roode v. State, 5 Neb. 174, 25 Am.Rep. 475; Cox v. State, 66 Miss. 14, 5 So. 618; People v. Shall, 9 Cow. 778; State v. Jones, 1 Bay, 207; Nelson v. State, 82 Ala. 44, 2 So. 463. Our statute (Pen. Code, § 237) provides a punishment for the forgery of "any check or draft upon any bank of this state." An instrument in the form of a check, payable "to the order of _____" (no payee being named), does not come within the operation of the statute, since, as was remarked by Warner, C.J., in Williams v. State, 51 Ga. 536, such an instrument, even if genuine, would be fatally "incomplete as a bank check, and could not have defrauded the bank or the drawer of the check." The paper alleged to have been forged by the accused in the present case can, however, properly be regarded as falling squarely within the descriptive terms used in our statute; for, if genuine, F. B. Chambers would certainly be liable thereon, as maker; and, being a forgery, the bank would sustain loss if it was misled thereby into paying to the person therein named as the payee the amount of money for which it called. The fact that it was indorsed in the name of "Emmett Brazill" did not essentially change its character or convert it into something differing from a forged check. For a person other than the payee of a negotiable instrument to indorse it merely evidences an undertaking on the part of such person to become liable thereon as an indorser or guarantor. Norton on Bills & Notes, 113; Collins v. Everett, 4 Ga. 266; Camp v. Simmons, 62 Ga. 73; Neal v. Wilson, 79 Ga. 736, 5 S.E. 54; Sibley v. Bank, 97 Ga. 127, 25 S.E. 470. A check on a bank is, in legal effect, neither more nor less than an inland bill of exchange. 1 Randolph, Com. Paper (2d Ed.) § 8. So, it will be perceived, though a check may be made payable to the order of a designated person, an indorsement thereon by one other than the payee or his indorsee does not operate to detract from its "legal efficacy," but, on the contrary, gives to it an apparent additional force and effect. That such a check is not also indorsed by the payee simply affects its negotiability. Indeed, while his indorsement is essential to the passing of the legal title thereto, another may become the equitable owner thereof by mere delivery, without such indorsement. 2 Randolph, Com. Paper (2d Ed.) § 787; Haug v. Riley, 101 Ga. 375, 29 S.E. 44, 40 L.R.A. 244, and authorities cited. In this connection, the decision announced in People v. Wheeler, 47 Hun, 484, may be referred to as directly in point. In that case the accused, Wheeler, was charged with forging and fraudulently uttering a draft drawn upon a bank, payable one year after date to his order, and purporting to have been given by Norman Coons and indorsed by Chester A. Miller. The accused contended that as "Miller was not the payee of the bill, and the indictment did not allege that the bill had been indorsed by the payee, it could not bind or injure Miller, whom the indictment charged that the defendant intended to defraud." But the court held that this contention "could not be sustained, as Coons would, if the instrument were genuine, on nonpayment thereof and notice given to him, be liable like an indorser of a note, and Miller, too, would be liable as an indorser after Coons, and would be so liable to Wheeler or to his transferee." In other words, it was distinctly held that the paper under consideration purported to have "legal efficacy," and therefore did not come within the operation of the rule "that the forgery of an instrument which, if genuine, would be void, is not a crime." Such has been the test applied by this court in a number of cases wherein the question arose whether or not a particular writing was properly to be regarded the subject-matter of an indictment for forgery. See Mitchell v. State, 56 Ga. 171; Berrisford v. State, 66 Ga. 53; Travis v. State, 83 Ga. 372, 9 S.E. 1063; Billups v. State, 88 Ga. 27, 13 S.E. 830.
It cannot, of course, logically be said to be an indictable offense to utter an instrument which, if genuine, could have no legal capacity to injure, and which for that reason does not come within that class of writings to which a statute against forgery is intended to apply. 13 Am. & Eng. Enc. of Law (2d Ed.) 1102; 2 Bish. New Crim. Law, § 605. But to utter any writing which was the subject-matter of forgery was, Mr Bishop says, "at the common law a substantive crime." He further remarks: "Since the offense of uttering is an attempt" to cheat by means of such an instrument, "it is complete when the forged instrument is offered; an acceptance of it is unnecessary, while yet it does not take away or diminish the crime." That is to say, the guilty intent which accompanies such an attempt to defraud is the gravamen of the offense, and is punishable whether the attempt proves successful or...
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