Cooper v. State
| Decision Date | 19 July 1932 |
| Docket Number | 28253 |
| Citation | 243 N.W. 837,123 Neb. 605 |
| Parties | R. T. COOPER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Saline county: ROBERT M. PROUDFIT JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In an information charging the forgery of the name of the payee of a check, it is not necessary to set forth a copy of the indorsement in the information. The purport is sufficient and the information is not defective for failure to do so. Comp. St. 1929, § 29-1503.
2. In this case, the defendant having admitted in open court that he, without the knowledge, consent or authority of the payees of the checks, signed the names of the payees on the backs thereof, no further proof of indorsement was necessary; and the defendant is estopped to complain of the failure of the state to offer the indorsements.
3. Instructions must be considered as a whole and together; and instructions numbered four and fourteen, when considered together and in connection with the stipulation and instructions numbered eleven and twelve, are a correct statement of the law in this case; and no error was committed by the trial court in the giving of these instructions.
4. Instruction number one informed the jury of that part of the criminal statute that the defendant was charged with violating, and the material allegations of the several counts of the information; and is without error.
5. An information that charges that the defendant falsely, knowingly, wilfully and feloniously, and with intent to defraud, forged and counterfeited the name of the payee of a check, is not subject to demurrer for failure to make use of the statutory word " signature." The law permits the use of words equivalent to, or inclusive of, the statutory language, provided the words used include the full signification of the statutory words.
" The court will give the words used in the information their ordinary and commonly accepted meaning, and, when viewed in this light, if the words employed mean the same thing as those found in the language of the statute denouncing the offense, the information will be upheld." Smith v. State, 72 Neb. 345, 100 N.W. 806.
6. Error cannot be predicated in the giving of instructions where the defendant, by requested instructions, recognizes the correctness of the rule stated by the court in its instructions.
7. " Forgery is the false making, or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." Nor is it requisite that the writing should bear any resemblance to that of the person whose writing it purports to be. " Whether the similitude of the signature with the genuine is such as would be likely to deceive is wholly immaterial." Commonwealth v. Fenwick, 177 Ky. 685, 198 S.W. 32, L.R.A. 1918B, 1189.
8. Evidence examined, considered, and held to establish the guilt of the defendant beyond a reasonable doubt.
Error to District Court, Saline County; Proudfit, Judge.
R. T. Cooper, real name unknown, was convicted of forgery, and he brings error.
Judgment affirmed.
F. L. Bollen, for plaintiff in error.
C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.
Heard before GOSS, C. J., ROSE, DEAN, EBERLY and PAINE, JJ., and DICKSON and TEWELL, District Judges.
The plaintiff in error, R. T. Cooper, hereinafter referred to as the defendant, was convicted of forgery in the district court for Saline county, and was sentenced to the penitentiary. To reverse this judgment he prosecutes proceedings in error in this court.
The facts upon which the state relied for a conviction are not in dispute. From the record it appears that the defendant was in the employ of Black Bros. Flour Mills Elevator, at De Witt, with authority to purchase grain and issue checks of Black Brothers, in payment therefor. The five checks set forth in the different counts of the information were issued by him as agent for Black Brothers. These checks on their face purported to have been issued for grain purchased from the payees by the defendant, and in payment thereof. Defendant admits in the record that he, without the knowledge, consent, authority or approval of the payees, wrote their names on the backs of the checks and deposited them in the Farmers & Merchants Bank of DeWitt to his credit. The evidence shows that he had not, in fact, purchased the grain represented by the checks. The defendant offered no evidence in explanation of his admitted acts of writing the names of the payees on the checks, other than that they plainly showed to be the act of himself, and not the act of any other person. And, if an offense has been committed, it was not forgery as charged in the information. We are asked to reverse this case for the following reasons: (1) Because the facts set forth in the several counts of the information do not charge him with an offense punishable by the laws of this state. (2) The indorsements on the backs of said five checks were not set out in the information, and were not offered or admitted in evidence. (3) The court erred in giving instructions one, four and fourteen on its own motion. (4) Error in refusing to give instruction numbered six requested by defendant. (5) The verdict of the jury is not sustained by sufficient evidence. For the purpose of convenience, assignments of errors one and two will be considered together, and the others in their order.
The information contained five separate counts; count one charges in substance that the defendant, on or about the 19th day of December, 1928, had in his possession a certain check of Black Brothers for $ 73.60 payable to Alfred Sobotka. The information contains a copy of the check, and charges in part that the defendant did "falsely, knowingly, unlawfully and feloniously, and with intent to defraud, forge and counterfeit the name of Alfred Sobotka on the back of said check, and did then and there in said county, with intent to defraud, falsely, fraudulently and feloniously publish and utter said check with said forged indorsement of said name thereon, as true and genuine, although it was false and counterfeit, as he, the said R. T. Cooper, real name unknown, well knew." The other four counts are similar and of the same legal force and effect, so only count one need be considered. None of the counts sets forth the indorsements on the backs of the checks. The information charges in each count that the defendant forged the name of the payee on each check, and published and uttered the same as true and genuine. It will be observed that the charge is not the forgery of a check; it is the making of a false indorsement of the payee of a check. This is forgery. 26 C. J. 921. It was proper, but not necessary, to set forth in the information a copy of the indorsements on the backs of these checks; the purport was sufficient, and the information is not defective for failure to do so. Comp. St. 1929, sec. 29-1503; Davis v. State, 58 Neb. 465, 78 N.W. 930; 26 C. J. 939.
The contention that the information is not sufficient to inform the defendant of the offense charged is without merit. The information charges a violation of section 28-601, Comp. St. 1929.
It is urged that the conviction cannot be upheld because the indorsements on the backs of the checks were not offered in evidence, and that the offer and receipt of the checks in evidence did not carry the indorsements thereon. The record discloses that at the opening of the case a stipulation was entered into between the state and the defendant that the checks set forth in the several counts of the information were written by the defendant, and that the names of the payees on the backs thereof were all written thereon by the defendant, and without the knowledge, consent or authority of the payees. This was an admission of a false indorsement, an essential element of forgery. Following the stipulation the state offered the checks in evidence. Under the stipulation no proof of the indorsements was necessary, and the checks being offered and received in evidence, the indorsements were properly before the jury; and the defendant is estopped to complain of the failure to offer the indorsements. The rule in such a case is stated in 4 C. J. 706, as follows: "A party is estopped to complain of the judgment for insufficiency of evidence to sustain it, where he admitted the existence of the facts which such evidence would have established by stipulation."
It is contended that the court erred in giving instructions one, four and fourteen. Instruction numbered one is not subject to criticism. By this instruction the jury are informed by the court of that part of our criminal statute the defendant is charged with violating; and the material allegations of the several counts of the information. No possible error could be predicated on the giving of this instruction.
Instruction numbered four, when considered in the light of, and in connection with, the stipulation which eliminated evidence of the signing of the names of the payees by the defendant, and when considered in connection with instructions numbered eleven, twelve and fourteen, cannot be said to be erroneous. The defendant stipulated that he had signed the names of each of the payees on the backs of the checks, and having so stipulated he cannot now complain because the court, in its instructions, relieved the state from this burden. The state...
To continue reading
Request your trial