Cunningham v. United States

• Decision Date: 07 December 1959
• Docket Number: No. 7841.,7841.
• Citation: 272 F.2d 791
• Parties: Euel Jackson CUNNINGHAM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

272 F.2d 791 (1959)

Euel Jackson CUNNINGHAM, Appellant, v. UNITED STATES of America, Appellee.

No. 7841.

United States Court of Appeals Fourth Circuit.

Argued October 6, 1959.

Decided December 7, 1959.

Charles W. Laughlin, Richmond, Va. (court-appointed counsel), for appellant.

Hugh E. Monteith, Asst. U. S. Atty., Sylvia, N. C. (J. M. Baley, Jr., U. S. Atty., Asheville, N. C., on brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOBELOFF, Chief Judge.

The defendant appeals from his conviction in the District Court under an indictment in two counts charging him with transporting a forged check in violation of 18 U.S.C. § 2314¹ and transporting a stolen vehicle in interstate commerce, in violation of 18 U.S.C. § 2312.²

On October 26, 1957, defendant bought a 1951 Dodge from the Glover Motor Company in Asheville, North Carolina, giving in payment a check drawn by him on the Home National Bank in Johnson City, Tennessee. Defendant, whose name is Euel Jackson Cunningham, signed the check "R. F. Cunningham," signed a purchase order for the car "Ronald F. Cunningham," and accepted a bill of sale made out in the name of Ronald F. Cunningham. Before accepting the check, an official of the Glover Motor Company contacted a local merchant, a Mr. Jenkins. From the testimony of Harry W. Powers, general manager of the company, it appears that Jenkins came to the Glover Motor Company, confronted the defendant, and said that he knew him.³ The check, drawn on a non-existent bank, has never been paid.

Six months later, on April 18, 1958, the Sheriff of Edgefield County, South Carolina, discovered the automobile, apparently abandoned, on a farm in that county. The Sheriff testified that he had no exact idea how long the car had been on the farm, but he did observe that "the grass had grown up around the car and small bushes, indicating that it had been there quite a while."

The First Count — Transportation of Forged Check

As to the first count, charging transportation of a forged check, defendant makes two main contentions, the first and more substantial of which is that he could not be guilty of a violation of 18 U.S.C. § 2314 because there is no proof of a "forged" instrument. He relies heavily on the earlier decision of this court in Greathouse v. United States, 4 Cir., 1948, 170 F.2d 512, where the defendant signed several checks "Woodruff Motor Sale, Inc., J. W. Greathouse." While in that case the corporation was fictitious, and neither it nor the defendant had an account at the bank on which the check was drawn, the court's opinion, by Judge Soper, pointed out that the name J. W. Greathouse, which the defendant used, was his own true name. It was held that:

"* * * the charge of forgery in this case is not sustained by the fact that the defendant, with intent to defraud, drew the checks in his own name upon a bank in which he had no funds, or that he signed the name of Woodruff Motor Sale, Inc., whether that was the name in which he did business, as he claimed, or was merely the name of a non-existent corporation, as indicated by other testimony." 170 F.2d 512, 514. (Emphasis supplied)

In the course of the opinion it was also said:

"* * * It is well established that forgery contemplates a writing which falsely purports to be the writing of another person than the actual maker. Hence it is not forgery for one, with intent to defraud, to issue a check in his own name on a bank in which he has no funds, and it is not a violation of the statute in question to cause such a check to be transported in interstate commerce." Ibid. (Emphasis supplied.)

In the instant case, the defendant, Euel Jackson Cunningham, in the presence of the Glover Motor Company's salesman, signed the check "R. F. Cunningham." Unlike the defendant in Greathouse who signed his own name, Cunningham passed himself off as another person, namely R. F. Cunningham; his writing falsely purported to be the writing of R. F. Cunningham.

Decisions dealing with the question as to whether forgery may be committed by one signing an assumed or fictitious name are said to fall into two general categories.⁴ As stated in the annotation at 49 A.L.R.2d 852, 854:

"* * * Under the broad definition, forgery may be committed by the use of a fictitious name, with intent to defraud, so long as the instrument in question has a sufficient appearance of validity upon its face to enable it to be used to the prejudice of another, while under the narrow definition, the name signed to the instrument must purport to be the signature of some person other than the one actually signing it."

Greathouse, it is said, represents the "narrow," rather than the "broad," rule of forgery. As the basis for such classification of Greathouse, emphasis is put upon certain language in that opinion:

"* * * forgery may exist even if the name used be an assumed or fictitious one; Lyman v. State, 136 Md. 40, 109 A. 548, 9 A.L.R. 401 and note. But this rule is properly applicable only when the writing is issued as the writing of the fictitious individual and not when the name is signed by the defendant himself under the pretense that he has been authorized by an existing person to sign his name." 170 F.2d 512, 514.

When we reversed Greathouse's conviction, it was because, as we viewed the facts, the defendant had merely misrepresented the extent of his authority but had not used a false name. While such conduct may well constitute a false pretense, subject to state prosecution, it is not forgery.

However, the annotator, at 49 A.L.R.2d 852, 854, goes further and says:

"* * * under the broad definition forgery may be committed by signing the name of a fictitious person in the presence of the person defrauded, the other requisites for forgery under such definition being present, while under the narrow definition, such is not the case." (Emphasis supplied.)

Although this formulation would absolve the defendant here, we do not think that Greathouse supports it. On the contrary, Greathouse is entirely consistent with a finding of forgery in this case, since it decided merely that one signing his own name may not be held for forgery, notwithstanding a misrepresentation as to his authority. In any event, we do not subscribe to a rule so narrow as to exonerate from liability as a forger under § 2314 one who signs a name other than his own with fraudulent intent.

The second contention of the defendant is that the record furnishes no basis for finding that he caused the check to be transported in interstate commerce.⁵ This argument is derived from the following facts. The defendant gave the forged check, drawn on the Home National Bank, Johnson City, Tennessee, to the Glover Motor Company on a Saturday. On the following Monday morning, a telephone call was made to Johnson City, Tennessee, and the company discovered that there was no Home National Bank. The check was subsequently deposited and forwarded to the Hamilton National Bank in Johnson City. In these circumstances, defendant insists that he did not cause the check to be sent in interstate commerce to the Hamilton National Bank, that the "chain of causation is completely broken by the knowledge of the company and the bank at the time the check was forwarded to a bank on which it was not drawn, and being sent to a place where there was no bank in the name of the drawee bank."

This argument is completely lacking in merit and requires no extended treatment. By his acts, the defendant set in motion the chain of events that led to the transportation of the check in interstate commerce. The language of United States v. Sheridan, 1946, 329 U.S. 379, 391, 67 S.Ct. 332, 338, 91 L.Ed. 359 in which the Court dealt with a similar contention, is apt here:

"A word will dispose of the idea that Sheridan did not `cause\' the transportation. Certainly he knew the checks would have to be sent to the Missouri bank for collection. Given the proven forgery and uttering, no other conclusion would be possible. Necessarily, too, it would follow he intended the paying bank to send the checks there for that purpose. He knew they must cross state lines to be presented. One who induces another to do exactly what he intends, and does so by defrauding him, hardly can be held not to `cause\' what is so done."

It was readily foreseeable that in an effort to clear the check...