Cooper v. State, 28253.
| Citation | 123 Neb. 605,243 N.W. 837 |
| Decision Date | 19 July 1932 |
| Docket Number | No. 28253.,28253. |
| Parties | COOPER v. STATE. |
| Court | Nebraska Supreme Court |
COOPER
v.
STATE.
No. 28253.
Supreme Court of Nebraska.
July 19, 1932.
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.
[243 N.W. 838]
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.” “And it is no defense that, by close observation, the victim could have detected the forgery. It does not lie in the mouth of the forger to claim immunity for his crime because, if the person he imposed upon had been vigilant or careful, he would not have been deceived.” 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, of Friend, for plaintiff in error.
C. A. Sorensen, Atty. Gen., and Clifford L. Rein, Asst. Atty. Gen., for the State.
Heard before GOSS, C. J., ROSE, DEAN, EBERLY, and PAINE, JJ., and DICKSON and TEWELL, District Judges.
DICKSON, District Judge.
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 DeWitt, with authority to purchase grain and issue checks of Black Bros., in payment therefor. The five checks set forth in the different counts of the information were issued by him as agent for Black Bros. 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 payee, 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...
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