Lyman v. State

• Decision Date: 18 February 1920
• Docket Number: 29.
• Citation: 109 A. 548,136 Md. 40
• Parties: LYMAN v. STATE.
• Court: Maryland Court of Appeals

109 A. 548

136 Md. 40

LYMAN v. STATE.

No. 29.

Court of Appeals of Maryland

February 18, 1920

Appeal from Criminal Court of Baltimore City; Charles W. Heuisler Judge.

John Grant Lyman, alias Henry H. Howe, alias A. O. Brown, was convicted of forgery or obtaining money by false pretenses and appeals. Affirmed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Albert S. J. Owens, of Baltimore, for appellant.

Albert C. Ritchie, Atty. Gen., Ogle Marbury, Asst. Atty. Gen., and Harry W. Nice, State's Atty., of Baltimore, for the State.

PATTISON J.

The indictment upon which the appellant, John Grant Lyman, was tried and convicted in the criminal court of Baltimore city and sentenced to the Maryland penitentiary for the term of ten years, consists of three counts. It was charged in the first:

"That John Grant Lyman, otherwise called Henry H. Howe, otherwise called A. O. Brown, *** feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly aid and assist in falsely making, forging, altering, and counterfeiting, a certain bill of exchange, to wit, a certain check, of tenor, purport, and effect following, to wit:

'No. 25 Baltimore, Md., Dec. 7, 1918.

'A. O. Brown, Investments. $188.85.

'Pay to the order of G. W. Robertson one hundred eighty-eight 85/100 dollars.

'To the American Bank, Philadelphia, Pa.

'A. O. Brown.'

-with intent then and there to defraud," etc.

He was charged in the second count with uttering said check, and in the third with unlawfully obtaining from the party therein named by a certain false pretense bonds issued and granted by the United States government.

In response to a demand therefor as to the false pretense intended to be given in evidence under the third count of the indictment, the state filed the following bill of particulars:

"That the said false pretense consisted in the representation that a certain written paper given to Guy W. Robertson on the 7th day of December, in the year of our Lord nineteen hundred and eighteen, in the city of Baltimore, state of Maryland, by May Shade, who was then and there the agent of the said John Grant Lyman, which said written paper is as follows:

'No. 25. Baltimore, Md., Dec. 7, 1918.

'A. O. Brown, Investments. $188.85.

'Pay to the order of G. W. Robertson one hundred eighty-eight 85/100 dollars.

'To the American Bank, Philadelphia, Pa.

'A. O. Brown.'

-was then and there a good and genuine check for the payment of $188.85 current money, and which the said John Grant Lyman then and there well knew to be worthless and of no value, the said written paper having been signed in blank by the said John Grant Lyman under the name of A. O. Brown, and the blanks afterwards filled in by the said May Shade in accordance with directions given by the said John Grant Lyman."

Exceptions filed to the bill of particulars were overruled. A demurrer was entered to the first and second counts of the indictment, and a motion was filed to quash the third count. The demurrer, as well as the motion to quash, was overruled; whereupon the appellant pleaded not guilty, and the case proceeded to trial. In the course of the trial a number of exceptions were taken to the rulings of the court upon the admission of evidence, and at the conclusion of the evidence the defendant asked that the state be required to elect upon which count or counts it desired to ask conviction. This motion being overruled, an exception to the court's rulings thereon was taken.

The chief question presented by this appeal is upon the ruling of the court on the demurrer to the first and second counts of the indictment.

The statute of this state (section 41 of article 27 of volume 3 of the Code) upon the offense of forgery provides that-

"Any person who shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in falsely making, forging, altering or counterfeiting any *** bill of exchange *** with intention to defraud any person whomsoever, or shall utter or publish as true any false, forged, altered or counterfeited *** bill of exchange *** shall be deemed a felon, and on being convicted thereof shall be sentenced to the penitentiary for not less than one nor more than ten years."

It will be seen by a comparison of the statute with the first and second counts of the indictment that the forgery therein charged is in the language of the statute. The true name of the defendant, as charged in the indictment, is John Grant Lyman, while the name "A. O. Brown" appearing to the check was an assumed name used by the defendant in his alleged purpose or intent to defraud. The contention is made that, as the defendant used an assumed or fictitious name, not the name of another person, the offense of forgery was not committed. This question, though decided by the English courts and other courts of this country, has never been before this court so far as we have been able to discover, but by the great weight of authority both in England and this country it is now, we think, well settled that the offense of forgery may exist even though the name used be an assumed or fictitious one, when it is shown that it was used with the intention to defraud. Rex v. Sheppard, 1 Leach, C. C. 226; Rex v. Whiley, R. & R. C. C. 89; Rex v. Marshall, R. & R. C. C. 75; Rex v. Francis, R. & R. C. C. 209; Rex v. Boland, 1 Leach, C. C. 83; Rex v. Taylor, 1 Leach, C. C. 214; Wharton's Criminal Law, vol. 1, § 659; Commonwealth v. Costello, 120 Mass. 370; State v. Wheeler, 20 Or. 192, 25 P. 394, 10 L. R. A. 779, 23 Am. St. Rep. 119; 13 A. & E. E. (2d Ed.) 1088; State v. Kelliher, 49 Or. 77, 88 P. 867; Maloney v. State, 91 Ark. 485, 121 S.W. 728, 134 Am. St. Rep. 83, 18 Ann. Cas. 480; Harmon v. Old Detroit Nat. Bank, 153 Mich. 73, 116 N.W. 617, 17 L. R. A. (N. S.) 514, 126 Am. St. Rep. 467; United States v. Turner, 7 Pet. 132, 8 L.Ed. 633; 12 R. C. L. 151.

In the early case of Rex v. Sheppard, supra, the defendant bought silverware of the prosecutor, and in payment therefor gave to him a draft indorsed with the name of "H. Turner, Esq.," his true name being Sheppard. The prosecutor testified that he gave credit to the prisoner not to the draft, the prisoner being a stranger to him. The jury found the prisoner guilty, and on a case reserved on the question whether it could amount to the crime of forgery, as the prosecutor had sworn that he gave credit to the prisoner, not to the draft, the 12 judges were unanimously of the opinion that the conviction was right; "for it was a false instrument not drawn by any such person, as it purported to be, and the using of the fictitious name was only for the purpose of deceiving."

The same question was also decided in the later case of Rex v. Whiley, supra. There it was said (quoting from the syllabus):

"Where the name made use of by the prisoner in the forged instrument was assumed by him with intention of defrauding the prosecutor, a conviction for forgery was held to be right, though the prisoner's real name would have carried with it as much credit as the assumed name."

And to the same effect are the cases of Rex v. Francis, Rex v. Marshall, Rex v. Boland, and Rex v. Taylor.

In Wharton's Criminal Law, vol. 1, § 659, it is said:

"It is forgery to sign a money order in an assumed name, if the name were assumed to defraud the person to whom such order was given, though the prisoner was known to the prosecutor only by the assumed name."

In support of this statement he cites the case of Rex v. Francis, supra.

The principle laid down in these early English cases was followed in Commonwealth v. Costello, supra, where it is said:

"There may be a forgery by the use of a fictitious name, as well as by the use of a person's own name, if the intent exists to commit a fraud by deception as to the identity of the person who uses the name."

In the still later case of State v. Wheeler, supra, decided in December, 1890, the Supreme Court of Oregon, after citing and quoting approvingly from a number of the cases that we have cited, including Commonwealth v. Costello, held that a promissory note given by the defendant, Edward Wheeler, in the name of John Williams, a fictitious person, with an intent to defraud, was forgery.

In 13 A. & E. Enc. of Law, p. 1088, it is said:

"To constitute forgery, the name alleged to be forged need not be that of any person in existence. It may be wholly fictitious, if the instrument is made or altered with the intent to defraud."

And in the case of Maloney v. State, supra, decided so late as October 4, 1909, the Supreme Court of Arkansas quoted with approval what is said in 13 A. & E. Enc. of Law.

In the case of United States v. Turner, supra, the party was charged with the forgery of and attempt to pass a certain paper writing in imitation of and purporting to be a bill or note issued by the president, directors, and company of the Bank of the United States. The note was signed with the name of John Huske, who had not been at any time the president of the Bank of the United States, and was countersigned by the name of John W. Sanford, who at no time was cashier of the bank, although both of said persons were indirectly connected with said bank in other capacities. Judge Story, speaking for the court in that case, said:

"It is wholly immaterial whether the bill attempted to be passed be signed in the name of real or fictitious persons, or whether it would, if genuine, be binding on the bank or not. *** The public mischief would be equally great whether the names were those of the genuine officers or of fictitious or unauthorized persons. ***

Upon examining the English

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