Moncref v. State

Decision Date18 June 1925
Docket Number1287
Citation236 P. 1037,33 Wyo. 192
PartiesMONCREF v. STATE [*]
CourtWyoming Supreme Court

Rehearing denied October 5th, 1925.

Petition for rehearing denied October 5th, 1925 without opinion.

ERROR to District Court, Natrona County; CYRUS O. BROWN, Judge.

C. B Moncref was convicted of forgery and brings error.

Affirmed.

E. Paul Bachellor for plaintiff in error.

The evidence tended to prove that the checks were fictitious such as are made the subject of forgery. Sec. 7291 C. S. The information was drawn under Sec. 7284 C. S.; if the prosecution is under 7284 C. S. the state has failed to make a case in not proving the checks to be false; or that the checks were not signed by the Refining Co., or by its authority; 26 C. J. 959; People v. Lundin (Calif.) 48 P. 1024; State v. Dixon (N. C.) 117 S.E. 170; State v. Swan (Kans.) 56 P. 750; People v. Elliott (Calif.) 27 P. 433; People v. Eppinger (Calif.) 36 P. 538; if the state relies upon its proof that the checks were fictitious, then the prosecution should have been under Sec. 7291; People v. Elliott, supra; People v. Eppinger, supra; Secs. 470-476 of the Cal. Code corresponds with our Secs. 7284 and 7291; defendant was convicted of a different offense than that charged, which was contrary to law; Fields v. Ter. 1 Wyo. 78; State v. Lowry, 29 Wyo. 267; State v. Wilson (Wyo.) 228 P. 803; the verdict is therefore not sustained by evidence. Evidence of other checks alleged to have been forged may not be considered until their forgery is established; 16 C. J. 598; People v. Whiteman (Cal.) 46 P. 99; People v. Altman (N. Y.) 42 N.E. 120; State v. Prins. (Ia.) 84 N.W. 980; instruction number 4 was prejudicial in the absence of proof that other checks introduced in evidence were forged.

David J. Howell, Attorney General, and John C. Pickett, Asst. Attorney General.

Sections 7284 and 7291 C. S. both relate to forgery; the word forgery has a well understood meaning; In re McDonald, 4 Wyo. 150; State v. DeWolfe (Nebr.) 93 N.W. 946; Smith v. State (Nebr.) 78 N.W. 1059, 16 C. J. 67; signing a fictitious name to an instrument subject to forgery constitutes forgery; 9 A. L. R. 409; Underhill on Ev. (3rd Ed.) page 872; no information will be deemed insufficient, unless it affects the substantial rights of defendants; 18 N.Y.S. 433; May v. U.S. 199 F. 42; U. S. v. Maxey, 200 F. 987; State v. Johnson (N. Dak.) 118 N.W. 230; People v. Emmons (Calif.) 110 P. 151; State v. McGee (Conn. ) 72 A. 141; Sec. 7462 C. S. 1920; Sec. 7291 C. S. is a further definition of forgery and includes the signing of a fictitious name to an instrument capable of forgery; Santolini v. State, 6 Wyo. 110; Reed v. U.S. 299 F. 918; Leslie v. State, 10 Wyo. 10; the information alleges forgery; proof of acts constituting forgery as defined by either Secs. 7284 or 7291 will sustain conviction; the situation is no different than it would be where a number of different criminal acts are described in a single Sec. People v. Fisher, Cal. App. 116 P. 688; Ter. v. Guiterre, 84 P. 525; People v. Bendit, 43 P. 901; State v. Wheeler, 25 P. 394; a defendant might be prosecuted twice under one Section, if the criminal acts were distinct; State v. Donahue (Ore.) 5 A. L. R. 1121; Wilson v. U.S. 190 F. 427; Huffman v. State, (Ind.) 109 N.E. 401; defendant by not requesting an instruction, that the jury should not consider other checks as evidence of guilty knowledge unless the jury found them to be forgeries, waived objection to instruction number 4; Gardner v. U. S. 230 F. 575; Steers v. U.S. 192 F. 1; L. & N. R. R. Co. v. Wright, 210 S.W. 184; Brantley v. State, 9 Wyo. 102; Long v. State, 15 Wyo. 262; but defendant was not prejudiced either way. The evidence of the prosecution tended to show that the Refinery Co. did not exist.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is a proceeding in error to review a judgment of conviction of forgery on an information charging that the defendant did "wilfully and unlawfully and maliciously, feloniously and falsely make, alter, forge and counterfeit a certain bank check for the payment of money, which said false, altered and forged and counterfeit bank check is in words and figures as follows: [here the check is set forth in haec verba], with intent to damage and defraud." The check purports to be drawn by "Refinery Const. Co., by H. G. Howard."

Section 7284, Wyo. C. S. 1920, provides that:

"Every person who shall falsely make, alter, forge or counterfeit any * * * check * * * for the payment of money * * *, with intent to damage or defraud any person * * * shall be deemed guilty of forgery, and upon conviction thereof shall be punished by confinement in the penitentiary for a term not more than fourteen years. "

Section 7291 provides that:

"Every person who shall make, pass, utter or publish, with intent to defraud any person * * * any fictitious * * * check, purporting to be the * * * check * * * of some bank, corporation, copartnership or individual, when, in fact, there shall be no such bank, corporation, copartnership or individual in existence, the said person knowing the * * * check * * * to be fictitious, shall be deemed guilty of the crime of forgery, and, on conviction thereof shall be punished by confinement in the penitentiary for not more than fourteen years."

The information is drawn under section 7284, and there is no contention that it is not sufficient to charge the crime of forgery under that section.

It is conceded that there was evidence to prove that the defendant made the check set forth in the information and passed it for value to the prosecuting witness; that the Refinery Construction Company, the purported drawer of the check, had no account in the bank on which the check was drawn, and that the Refinery Construction Company was a fictitious company and H. G. Howard a fictitious individual. There can be no doubt that these facts, together with the surrounding circumstances shown by the evidence, justified the jury in finding that the check was false and made with the intention to damage and defraud the prosecuting witness to whom it was passed.

It is contended that the evidence, though sufficient to prove defendant guilty of forgery under section 7291, is insufficient to support the charge under section 7284. The authorities relied on are decision in California where sections 470 and 476 of the Penal Code are similar to our sections 7284 and 7291, respectively. The California courts held until 1905 that in a prosecution under section 470 a conviction could not be sustained by evidence showing that the instrument was a fictitious bill, note or check as described in section 476, but that the prosecution in such a case must be under the latter section. People v. Elliott, 90 Cal. 586, 27 P. 433; People v. Eppinger, 105 Cal. 36, 38 P. 538; People v. Terrill, 133 Cal. 120, 65 P. 303; People v. Chretien, 137 Cal. 450, 70 P. 305. When these cases were decided, section 470 of the California Penal Code contained no specific mention of fictitious instruments. Thereafter, in 1905, section 470 was amended. The amendment made the section read as follows:

"Every person who, with intent to defraud, signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, to, or falsely makes, alters, forges or counterfeits," etc.

Section 476 has not been amended, but stands as it was when the rule above mentioned was followed.

Since the amendment of section 470 in 1905 it is held in California not only that forgery by signing a fictitious name may be prosecuted under Section 470, but also that the information in such a prosecution need not allege that the name signed is that of a fictitious person. People v. Jones, 12 Cal.App. 129, 106 P. 724; People v. Whitaker, (Cal. App.) 68 Cal.App. 7, 228 P. 376. It was said in People v. Jones, supra, that as the case fell within Section 470, "it was unnecessary either to allege or prove whether or not Walter Miller was a real or fictitious person."

Thus it seems that section 470 of the Penal Code of California, as amended and thereafter construed, is broad enough to include the matters mentioned in section 476. One who makes a false instrument in the name of a fictitious person may be prosecuted under either section and, if under the former, the information need not allege facts to show that the prosecution might have been under the latter.

This rule is in harmony with the common law, and seems to us calculated to promote the ends of justice. The application of the rule of the earlier California cases to our sections 7284 and 7291 would not serve to protect any substantial right of the defendant. The purpose of the information is to give the defendant fair notice of the nature of the case he is to meet and to furnish a sufficient basis for an appropriate verdict and judgment that will protect the defendant from a further prosecution for the same offense. Where, as in the case at bar, the information sets forth in full the check claimed by the state to have been forged with sufficient allegations to show that it is false and made with the intent to defraud, the further allegation as to the fictitious character of the maker of the check would seem only to introduce into the case an immaterial issue.

Sections 7284 and 7291 Wyo. C. S. 1920 were enacted in 1869 as Sections 54 and 61, respectively, of Chapter 3, Laws 1869. At that time it had been settled for more than a century (at least since the case of Rex v. Bolland, 1 Leach C L. 83, 2 East P.C. 958, decided in 1772, that the false making with intent to defraud of an instrument in the name of a fictitious person was forgery at common law, and under the usual statutory definitions of...

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1 cases
  • State v. Gorham
    • United States
    • Utah Supreme Court
    • October 13, 1937
    ... ... People v. Jones , 12 Cal.App. 129, 106 P ... 724, held that the crime of forgery could be committed [93 ... Utah 287] by signing the name of a fictitious, as well as a ... real, person to any of the instruments enumerated in section ... In the ... case of Moncref v. State , 33 Wyo. 192, 236 ... P. 1037, the Wyoming court concluded that the signing of a ... fictitious name to a check was a forgery under the general ... forgery statute, notwithstanding a special section of the ... statutes covering fictitious documents; that the latter ... section did ... ...

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