Carlsen v. State
| Decision Date | 10 May 1934 |
| Docket Number | 28976 |
| Citation | 254 N.W. 744,127 Neb. 11 |
| Parties | CARL C. CARLSEN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A recital in a principal bond, with interest coupons attached that the makers of the bond have caused the coupons to be executed with facsimile signatures does not of itself authorize any one in the future to make facsimile signatures on extension coupons.
2. Coupons in the usual form, purporting to evidence interest to become due on a principal bond, are the subject of forgery.
3. Where such a coupon is set forth by copy in an information charging its forgery, it is not necessary to allege the terms of the principal bond or other facts extrinsic to the coupon to extend or explain its terms.
4. Though section 28-601, Comp. St. 1929, denounces such a forgery " with the intent to damage or defraud," an information alleging that the coupon was forged " with the intent to prejudice and defraud" is not demurrable on account thereof; in such a criminal statute, when necessary to give effect to the intention of the Legislature, the word " and" may be substituted for " or" and vice versa.
5. " In a prosecution for forgery, it is not necessary to allege or prove an intent to defraud any particular person." Uerling v. State, 125 Neb. 374, 250 N.W. 243.
6. " A motion for a change of venue is directed to the discretion of the trial judge, and unless an abuse thereof is disclosed by the record his ruling will not be reversed in the supreme court." Hauser v. State, 101 Neb. 834, 166 N.W. 245.
7. The attorney general has power to designate an assistant attorney general to appear in his stead in the trial of a criminal cause. For that particular purpose, it is not necessary that the assistant be a bonded deputy under section 84-206, Comp. St. 1929.
8. A defendant cannot ordinarily complain that he was convicted on some counts and acquitted on others.
9. If one procure another to commit an offense, he may be prosecuted and punished as a principal. Comp. St. 1929, § 28-201.
10. Other alleged errors examined and held not to constitute error.
11. Evidence held to be sufficient to sustain the verdict and judgment.
Error to District Court, Lancaster County; Broady, Judge.
Carl C. Carlsen was convicted of forgery, and he brings error.
Judgment affirmed.
Frank A. Peterson and Claude S. Wilson, for plaintiff in error.
Paul F. Good, Attorney General, and William H. Wright, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and MESSMORE, District Judge.
Defendant assigns error in a conviction for forgery. He was charged in twelve counts with the forgery of twelve interest coupons, was acquitted on four counts and was convicted on eight counts. All the coupons were due January 19, 1934. The first four were for $ 9.75 each and the other eight were for $ 15 each. The names of Mary A. McLoughlin and Thomas J. McLoughlin appeared as the makers. Each coupon contained these words: "Payment of this coupon is subject to the terms of principal bond of even date." There are 116 assignments of error "relied upon for reversal."
Carlsen was president and active head of both the Lincoln Safe Deposit Company and the Lincoln Trust Company. January 19, 1925, Mary A. McLoughlin and Thomas J. McLoughlin obtained from the Lincoln Safe Deposit Company a mortgage loan of $ 13,000, secured by a mortgage on lot 15, block 16, in Havelock, on which was a three-story brick building. The loan was evidenced by a series of 30 bonds. Nine of these bonds, for $ 325 each, totaling $ 2,925, were payable consecutively, one each six months up to and including July 19, 1929. The other 21 bonds, arranged for convenient sale, in amounts of $ 250, $ 325 and $ 500, totaling $ 10,075, were all payable January 19, 1930.
In each of the 30 principal bonds signed by the McLoughlins, it was recited that the bonds were equally secured by the mortgage without any preferences or priority whatsoever of the lien thereof in favor of any one or more of said bonds over any one or more of the others; that, if default occurs, then the Lincoln Trust Company may, as trustee for the holders of the bonds, without notice, declare all bonds due; and that the makers "have * * * caused the interest coupons hereunto attached to be executed with facsimile signatures this 19th day of January, 1925."
In 1927, the McLoughlins were in default on certain of the bonds then falling due, and on September 20, 1927, signed an extension agreement as to those particular bonds. On January 14, 1929, the McLoughlins being in default on certain of the bonds still owned and held by the Lincoln Safe Deposit Company, the company began a foreclosure. This resulted in a decree for $ 2,894.62 in favor of the Lincoln Safe Deposit Company as a first lien upon the premises, concurrent, however, with the right of the holders, upon subsequent default, to foreclosure as to the balance of bonds not yet due, amounting to $ 12,025. At the expiration of a stay taken by the McLoughlins, the property was sold. It was bid in at judicial sale for $ 500 and the sheriff conveyed it to Lincoln Safe Deposit Company. That company took possession of the property. It had a deficiency judgment. Later it developed that the McLoughlins had a party wall affecting the title to the lot and building. The company paid them $ 200 for the party wall and, as a part of the settlement, canceled the deficiency judgment. This left the Lincoln Safe Deposit Company the owner of the property and in possession thereof, subject to the unpaid bonds, upon which the McLoughlins were still liable, totaling $ 12,025, most if not all of which were held by investing customers of the company.
On or about January 19, 1931, as of which time the facts in the information were laid, all of the original McLoughlin bonds still in existence were past due and investors who had purchased them were requesting the company to pay the principal. These owners of the bonds were evidently unaware the company had foreclosed on its own bonds and had taken title and possession. Accordingly the scheme was devised to procure what would appear to the holders of these bonds as an extension of the original bonds. As evidencing this the state introduced what is known as a "pink sheet." This is a form which was ordinarily used by the loan committee in approving either a "new loan" or an "extension loan," it being the custom to strike out either of the phrases not applicable. In this instance the words "new loan" were crossed out and the words "extension loan" were changed to read "extension coupons." Below the signatures of the loan committee approving the plan of extension coupons, under the heading of "remarks," appear the words "coupons only." The data in the pink sheet, when approved by the loan committee, conveyed to the clerical force the order to draw extension coupons, only, for $ 11,700 (to which it showed the original McLoughlin loan had been reduced) for three years at the rate of 6 per cent. This approval was signed by C. C. Carlsen, J. A. Reichenbach and W. R. Mellor. None but Carlsen are informed against. In pursuance of the authority of the "pink sheet," extension coupons were made and signed with the facsimile signatures of the McLoughlins. These coupons found their way into the hands of holders of the bonds and served to satisfy them that the original bonds had been extended, though there was no real extension thereof. The McLoughlins testified that they never were asked to extend these bonds and never authorized extension coupons to be executed for that purpose. When they lost title and possession of the property by foreclosure and deed, they abandoned interest in the affair.
The evidence shows that, in any instance where the McLoughlins requested an extension, an extension agreement would be signed by them and new coupons would be attached to the particular bond thus extended. This was the general practice of the company. Defendant seeks to derive from the original bonds the authority for the execution of extension coupons where, as here, no extension agreement was made by the maker. As hereinbefore quoted, the original bonds merely recited the then existing fact that the McLoughlins had caused interest coupons with facsimile signatures to be attached to evidence the particular interest to come due on these bonds. It does not appear in its terms to authorize any one in the future to make other facsimile signatures on extension coupons, whether with or without an extension agreement.
However, it seems to have been the custom and practice of the Lincoln Safe Deposit Company to use facsimile coupons in cases where the company was the owner of the property. A witness who had worked for the company testified that there were twelve or fifteen cases where they could not get the owners to sign an extension agreement or where the company owned the property, in which the stenciled extension coupons were used, as in the McLoughlin case. The usual method of producing a facsimile signature was to trace a genuine signature on a stencil sheet with a stylus, which is a pencil for tracing purposes, and then to run the signatures off on the coupons with a mimeograph. There is evidence indicating that the signatures of the McLoughlins, charged to have been forged, were traced from their signatures on the mortgage. The mere fact that it was the usual method to use facsimile extension coupons does not relieve the user from a charge of forgery if, in fact, the signatures were not authorized and if the effect of the act was to work an intentional fraud.
Defendant testified briefly as to...
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