Fuller v. United States

• Decision Date: 03 April 1923
• Docket Number: 3819.
• Citation: 288 F. 442
• Parties: FULLER v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

288 F. 442

FULLER v. UNITED STATES.

No. 3819.

United States Court of Appeals, District of Columbia.

April 3, 1923

Submitted November 11, 1922.

Appeal from the Supreme Court of the District of Columbia.

Henry E. Davis, of Washington, D.C., for appellant.

Peyton Gordon and Vernon E. West, both of Washington, D.C., for the United States.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and BARBER Judge of the United States Court of Customs Appeals.

BARBER Acting Associate Justice (sitting in place of VAN ORSDEL Associate Justice).

The appellant hereinafter referred to as the defendant was tried in the Supreme Court of the District on an indictment in two counts; the first alleging the forging and the second the uttering of a written instrument in the form of a promissory note.

By direction of the court a verdict of not guilty was returned on the first count. The jury returned a verdict of guilty of uttering on the second count. Judgment and sentence followed.

The note was described in the first count as follows:

'$5,000.00

Washington, D.C., Oct. 18, 1918.

'Ninety days after date I promise to pay to the order of myself five thousand dollars at Commercial Natl. Bank, Washington, value received, with interest at 6 per cent. per annum until paid.

'No. . . . .

Benj. F. Fuller, 210 10th St. N.W.

'Due . . . .'

The count further set out that on the back of the note were two indorsements, one 'Benj. F. Fuller,' the defendant, and the other, 'Philip D. Armour,' and the forgery alleged in the first count consisted in the writing of Armour's name on the back of the note by defendant.

The material part of the second count of the indictment charged that the defendant--

'did have in his possession the said instrument of writing in the form of a promissory note, with the said falsely made and forged indorsement written upon the back thereof, which said instrument of writing and said falsely made and forged indorsement are mentioned and set forth by their tenor in the first count of this indictment, and that the said Benjamin F. Fuller, so having the said instrument of writing, with the said falsely made and forged indorsement written upon the back thereof, in his possession as aforesaid, did then and there, with intent to defraud, feloniously pass, utter and publish the same as true and genuine to the Franklin National Bank, a body corporate, he, the said Benjamin F. Fuller, at the time he so passed, uttered and published the said instrument of writing, with the said falsely made and forged indorsement written upon the back thereof, as true and genuine, well knowing the said indorsement to be false and forged.'

At the trial the only evidence introduced with reference to the forgery showed that after the purported indorsement of 'Philip D. Armour' was made on the note, the date 'October 18th,' the figures '18,' in the year 1918, the words 'ninety days' and 'Commercial Natl. Bank' were written into the face of the note, and there was not sufficient evidence to show that at the time said purported indorsement was made the defendant had indorsed the same. The court, adopting the view of defendant's counsel that this was a fatal variance from the note as laid in the first count, directed the jury to return a verdict of not guilty on the first count, but denied his motion to strike the note from the evidence and withdraw it from the consideration of the jury on the question of defendant's guilt under the second count.

The evidence tended to show that the note was discounted by the Franklin National Bank November 12, 1918, at which time it had been completed in all respects, and was in form as laid in the first count, including the indorsements, that the avails thereof were passed to the credit of the defendant, that it was dishonored at maturity, and that Armour did not make or authorize his purported indorsement thereon of which defendant was cognizant when he procured the note to be discounted. The defendant by numerous motions, objections, requests, and exceptions raised various questions, some of which are unnecessary of consideration here.

The first to be examined, the determination of which disposes of most of the others, is whether the second count sufficiently charges the offense of uttering a forged instrument, the defendant claiming that it does not. We think the learned counsel is in error in this respect because dismissing from the discussion any question arising under the first count of the indictment we find in the second count a clear reference to the completed note including the indorsements as described in the first count. As a matter of pleading it was entirely proper to dispense with the repetition in the second count of the description of the note as set forth in the first. It is settled law that:

'One count may refer to

...