Hubsch v. United States

• Decision Date: 30 June 1958
• Docket Number: No. 16616.,16616.
• Parties: Hugo Bob HUBSCH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F.2d 820 (1958)

Hugo Bob HUBSCH, Appellant, v. UNITED STATES of America, Appellee.

No. 16616.

United States Court of Appeals Fifth Circuit.

June 30, 1958.

Lawrence I. Hollander, Miami, Fla., for appellant.

O. B. Cline, Jr., Asst. U. S. Atty., Miami, Fla., James L. Guilmartin, U. S. Atty. for Southern District of Fla., Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and JONES and WISDOM, Circuit Judges.

JONES, Circuit Judge.

The appellant was charged by a two-count indictment with causing two falsely made and forged checks to be transported in interstate commerce, knowing the same to have been falsely made and forged. The portion of the Federal law which the appellant was accused of violating is as follows:

"Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited * * *.

"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both." 18 U.S.C.A. § 2314.

The appellant received treatment at the Halifax District Hospital, Daytona Beach, Florida, in November, 1953. The appellant represented himself as being Alfred Weinstein. In payment for the treatment the appellant gave a check signed A. A. Weinstein in the amount of $4.80, drawn on the Bank of Georgia, Atlanta, Georgia. The check was returned by the Atlanta bank with the notation that it was "Unable to locate". This check was the subject matter of the first count of the indictment.

During the same month the appellant selected for purchase a Masonic ring at a jewelry store in Miami, Florida. He asked the store proprietor if he could pay for the ring with a check and was told that he could if he had some credentials. The appellant said he was a Mason and a Shriner. He produced from a billfold several Masonic cards from Atlanta with the name Weinstein on them. The appellant gave the jeweler a check for $169.95, also drawn on the Bank of Georgia. This check was also returned by the bank on which it was drawn with the notation "Unable to locate". This check was the subject matter of the second count of the indictment. The appellant was tried by the court without a jury and found guilty on both counts. He was given a sentence of two years imprisonment and a fine of $500 on the first count. On the second count the appellant was placed on probation for three years following the imprisonment. From the judgment of conviction and sentence this appeal has been taken.

The appellant has questioned the sufficiency of the indictment on two grounds. The first is that the indictment charged him with causing the checks to be transported in interstate commerce, whereas the part of 18 U.S.C.A. § 2314 here applicable and above quoted, makes it a crime to transport such securities in interstate commerce but does not make it an offense to cause them to be so transported. The argument overlooks 18 U.S. C.A. § 2(b), which is of general application and reads as follows: "Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."

This Court has determined that causing interstate transportation is made a crime under 18 U.S.C.A. § 2314. Pereira v. United States, 5 Cir., 1953, 202 F.2d 830, affirmed 347 U.S. 1, 74 S. Ct. 358, 98 L.Ed. 435. Inasmuch as the indictment of the appellant did not specifically charge that causing of the interstate transportation was willful, it is pertinent to refer to Londos v. United States, 5 Cir., 1957, 240 F.2d 1, which holds that the indictment is nevertheless sufficient. It is now settled that 18 U.S. C.A. § 2314, is violated by a person knowingly cashing in one state a forged check drawn upon a bank in another state. United States v. Sheridan, 329 U. S. 379, 67 S.Ct. 332, 91 L.Ed. 359; Rickey v. United States, 5 Cir., 1957, 242 F.2d 583; United States v. Taylor, 2 Cir., 1954, 217 F.2d 397.

The second contention concerning the indictment is that no offense was alleged because it charged that appellant, "alias A. A. Weinstein", caused the interstate transportation of two falsely made and forged checks signed "A. A. Weinstein", knowing same to have been falsely made and forged. The argument is that an alias is, by definition, a name by which a person is "otherwise called", so that the making of a writing in that name is in the person's own name and is not a forgery. Support for the position urged is not lacking in a number of decisions of state courts. See 49 A.L.R.2d 852, 868-869, 888-889. Under the so-called narrow rule defining forgery, hereinafter discussed, the strict and technical doctrine of construction of the indictment for which the appellant contends might be proper. But we reject the narrow doctrine and hold that, under the circumstances herein stated, a forgery may be committed by the fraudulent use of an assumed or fictitious name. Since we so hold, we think it follows that the indictment did not fail to charge an offense against the United States where it was charged that Hubsch, alias Weinstein, did unlawfully and with fraudulent intent cause falsely made and forged checks to be transported in interstate commerce. See Lyman v. State, 136 Md. 40, 109 A. 548, 9 A.L.R. 401.

Similar to the question just discussed but bearing upon the question of guilt rather than the sufficiency of the indictment, is the appellant's contention that, having represented himself as Weinstein, that name was his alias and therefore the checks signed by appellant in the name of Weinstein were neither falsely made nor forged.

Forgery has been generally defined as "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 legal liability." 37 C.J.S. Forgery § 1, p. 31; 23 Am.Jur. 676, Forgery § 2; 2 Wharton's Criminal Law & Procedure 396, § 621. The case of Green v. State of Florida, Fla.1954, 72 So.2d 645, 49 A.L.R.2d 847, is the subject of an annotation upon whether forgery may be committed by the signing of an assumed or fictitious name. 49 A.L.R.2d 852. The annotator thus...