Lurye v. State

• Decision Date: 04 February 1936
• Citation: 265 N.W. 221,221 Wis. 68
• Parties: LURYE ET AL. v. STATE.
• Court: Wisconsin Supreme Court

221 Wis. 68

265 N.W. 221

LURYE ET AL.

v.STATE.^a1

Supreme Court of Wisconsin.

Feb. 4, 1936.

Writ of error to review a judgment of the Superior Court for Douglas County; Archibald McKay, Judge.

Affirmed.

This is a criminal action prosecuted in the name of the state of Wisconsin against the plaintiffs in error, Edward Lurye and Albert Lurye, hereinafter referred to as the defendants, on an information by the district attorney of Douglas county filed February 25, 1935, charging the defendant, Edward Lurye, with uttering a certain false, forged, counterfeit, and spurious certificate of indebtedness of the city of Superior, which certificate of indebtedness was in the following form:

+---------------+
                ¦“$10.00 ¦$10.00¦
                +---------------+
                

Certificate of Indebtedness

Superior, Wis. Nov. 1, 1934

To the Treasurer, City of Superior.

This certifies that the City of Superior, Wisconsin, is indebted to bearer, and pay bearer the sum of Ten Dollars when funds are available.

Ten Dollars

+-------------------------+
                ¦E. No. 20803¦E. No. 20803¦
                +-------------------------+
                

This certificate is transferable by delivery and will be redeemed in cash when funds are available.

+------------------------------------+
                ¦$10.00¦E. R. Bowser,¦Fred A. Baxter,¦
                +------+-------------+---------------¦
                ¦      ¦City Clerk   ¦Mayor          ¦
                +------+-------------+---------------¦
                ¦      ¦             ¦$10.00         ¦
                +------------------------------------+
                

(Union label)”

It was alleged in the information that the following words were superimposed upon this certificate: “This Certificate of Indebtedness shall not be discounted. This Certificate of Indebtedness if discounted will cease to be an obligation of the City of Superior.”

And in the same information the defendant Albert Lurye was charged with having procured the defendant Edward Lurye to utter the said false and forged certificate with intent to injure and defraud, etc.

There was a trial. The defendants were found guilty as charged in the information; Edward Lurye sentenced for a term of not less than one year nor more than four years, and Albert Lurye for a term of not less than one year nor more than two years in the state prison at Waupun. The defendants joined in suing out the writ of error.

The facts necessary to an understanding of the decision will be stated in the opinion.

Carl H. Daley, of Superior, and A. W. Richter, of Milwaukee, for plaintiffs in error.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Thomas W. Foley, Dist. Atty., of Superior, for the State.

ROSENBERRY, Chief Justice.

In July, 1933, the city of Superior being without means to pay its current and ordinary expenses, the common council of the city by resolution adopted in July, 1933, provided for the issuance of scrip in denominations of one, five, and ten dollars and thereafter scrip was issued pursuant to that and another like resolution adopted in September, 1933. The scrip was in the form already set out in connection with the statement of facts. No proceedings were had by the common council with relation to the issuance of the scrip or the certificates of indebtedness other than a motion from time to time to issue additional scrip pursuant to the resolutions already adopted. No tax was levied to provide for the payment thereof, nor was any question relating to the issuance of the same submitted to a vote of the people.

On November 1, 1934, scrip was outstanding in the sum of more than $195,000. In the late summer or early autumn of 1934, John Clark, Albert La Salle, and Sam Paul conceived the idea of printing counterfeit scrip and looked about for some one to put it into circulation. In this way Albert Lurye was brought in to the matter. On the 23d day of November, 1934, the defendant Albert Lurye and the three persons named made a trip to St. Paul for the purpose of procuring the necessary dies and materials with which to make the counterfeit scrip. Thereafter two of these persons printed about $20,000 face value of the scrip. Of this $3,000 was given to the defendant Albert Lurye. The printing was done in the city of Duluth, in the state of Minnesota. Shortly after the counterfeit scrip began to circulate, its true character was discovered. The persons involved in the printing endeavored to conceal evidence of their connection with it, and for that purpose threw the type and plates used by them into Lake Superior and burned the remainder of the scrip then in their hands.

The defendant Edward Lurye was engaged in the wholesale liquor business in the city of Superior and on the 16th day of December, 1934, delivered to one William Frymiller $100 in certificates of indebtedness of the city of Superior consisting of six $10 certificates and eight $5 certificates. Frymiller delivered the certificates which he had received from Edward Lurye to the city clerk of Superior in partial payment upon his application for a retail liquor dealer's license. The city clerk kept the money received from Frymiller separate and apart from all other funds. The city clerk having discovered that some of the certificates deposited with him by Frymiller were forged, investigations were made, and on December 19, 1934, the defendant Edward Lurye was requested to come to police headquarters. There he was informed that counterfeit scrip was in circulation and that investigation pointed to the fact that a large portion of it seemed to have originated with him. He replied that he had been accumulating scrip for two months past and was then advised that the counterfeit scrip had only been printed about fifteen days and that La Salle and Clark, the printers, were under arrest and had confessed. Thereupon he claimed he purchased $2,500 of the scrip from his brother Albert for $700. The police testified that he said: “I might as well tell the truth about it. I was a darn fool to get mixed into it; that it was too bad when a man was trying to make money and be industrious and a thing like this had to happen. My only crime was that I was too ambitious.”

At police headquarters the defendant Albert Lurye admitted that he had sold his brother, the defendant Edward Lurye, $2,500 worth of bogus scrip for $700. The $10 certificate set out in connection with the information was identified by the clerk as a part of the money deposited by Frymiller and was identified as being spurious by the city clerk. Clark and La Salle, who did the printing, testified upon the trial. Edward Lurye was a witness upon his own behalf, but Albert Lurye did not testify.

The defendants were informed against under the provisions of section 343.57 for uttering or procuring the utterance of a forged instrument. Section 343.56 is referred to in section 343.57 and is the section under which forgery is punished. The material part of section 343.56 is, in substance, as follows: Any person who shall falsely make, etc., any public security issued by any commissioner or other officer authorized to issue the same on behalf or for any debt of the United States or of this state or any municipal corporation, with intent to injure or defraud, shall be guilty of the crime of forgery.

Section 343.57 provides that any one who shall utter, etc., any public security mentioned in section 343.56 shall be punished, etc. On behalf of the defendants, it is argued that the so-called certificate of indebtedness being issued by the city of Superior without statutory authority for the issuance of such a certificate, it is void upon its face and cannot for that reason be the subject of forgery, and the defendants are therefore not guilty of uttering a forged instrument. The defendants rely principally upon two cases: John v. State, 23 Wis. 504, and Norton v. State, 129 Wis. 659, 109 N.W. 531, 116 Am.St.Rep. 979. In John v. State, the defendant was charged with forging an indorsement upon a draft. The court was of the view that under an act of Congress an unstamped draft was void; that therefore it appeared upon the face of the instrument, which was unstamped, that it was void. The court, in disposing of the matter, said: “The authorities cited by counsel show, that to forge an instrument which upon its face is of no validity or binding force, does not constitute the crime of forgery. And indeed no authorities would seem necessary for so plain a proposition. So soon as it appears that the alleged draft is no draft, but a mere void paper, it follows that the party was not guilty of forging an indorsement upon a draft.”

In Norton v. State, supra, the defendant was charged with the forgery of a check, which was payable to Walsh. There was no indorsement, and it was contended, therefore, that it was valueless in the hands of the defendant, and void. The court said: “There is no question but that an instrument which is clearly void upon its face cannot be made the subject of forgery. [Citing John v. State.] * * * If plaintiff in error were charged with the offense of uttering this paper the considerations suggested in support of these contentions might...