Paul v. United States, 5532.

• Decision Date: 20 September 1935
• Docket Number: No. 5532.,5532.
• Citation: 79 F.2d 561
• Parties: PAUL v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

79 F.2d 561 (1935)

PAUL v. UNITED STATES.

No. 5532.

Circuit Court of Appeals, Third Circuit.

September 20, 1935.

Thomas I. Guerin and James J. Regan, Jr., both of Philadelphia, Pa., for appellant.

Thomas J. Reilly, Asst. U. S. Atty., and Charles D. McAvoy, U. S. Atty., both of Philadelphia, Pa.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

The defendants were charged, in an indictment containing two counts, with forgery in the first count and with "uttering" a forged check in the second count. On the trial Mrs. Reid was acquitted on both counts and Paul was acquitted of forgery in the first count, but was convicted of uttering a forged check in the second count and fined $750. From the judgment, entered on the verdict of guilty, he has appealed.

The instrument involved in this case was a United States government check dated October 15, 1932, and was drawn on the Treasury of the United States for the sum of $472.72 to the order of Norman Castle Reid as a loan against his United States Navy bonus. It was his second bonus loan. The first one for $296 was in 1927. He is and was the husband of the codefendant, Madelyn H. Reid. However, they have lived separate and apart since 1927. He lives in Chester and she in Philadelphia, Pa., with their minor son, Norman Castle Reid, Jr.

He applied the entire first loan of $296 to reduce his arrearages to Mrs. Reid under a support order in her favor made by the Delaware county court in Media, Pa., in December, 1927.

In January, 1932, a further support order in her favor was made against him by the municipal court of Philadelphia. Contempt proceedings had been begun against him for failure to comply with this Philadelphia order, but these proceedings were adjourned on condition that Reid would secure a second loan and pay it on the arrearages of this order. Accordingly, he received a second loan of $472.72, mentioned above; but the check was sent to him at Mrs. Reid's address in Philadelphia and not at his address in Chester. Mrs. Reid mailed the check to him at Chester. He then sent it back to her in Philadelphia bearing his purported indorsement in ink. He testified that he did not indorse it, though he said that he wanted to do the right thing and was willing to give her one-half of the check. On the contrary, she said that it was indorsed by him and that the handwriting was his.

Mrs. Reid, accompanied by Paul, took the check to the Mitten Bank. On the request of the bank, Mrs. Reid indorsed the check as follows: "Mrs. Norman Castle Reid" and "Madelyn H. Reid." But before cashing the check the bank insisted that Paul "add his indorsement for identification of Mrs. Reid, whom he had introduced to the bank," and he did so. She then cashed it and opened an account with the bank with a balance of $366.52. She subsequently drew out of this a check for $60, leaving a balance of $306.52.

The real question in this case is: Who indorsed the check in the name of "Norman Castle Reid"?

The government's handwriting expert, Bert C. Farrar, a man of wide experience, testified that he could not say that the purported indorsement of "Norman Castle Reid" on the check was copied or written by either Mrs. Reid or Paul. Both positively denied that they wrote or indorsed Reid's name on it.

Reid had the check of $472.72 sent to Mrs. Reid's address so that she could be sure that it had been issued. When she later gave the check to Paul, she told him that the indorsement was her husband's. She told the cashier of the Mitten Bank the same thing in Paul's presence before the check was cashed.

On or about January 10, 1932, Reid made complaint to the Treasury Department that his indorsement had been forged on the check. Payment of the check was stopped by the Veterans' Bureau and a substitute check was sent to Reid, and it is not contended that any one, the bank, the government, or any one else, has lost anything by the indorsement.

At this stage and under these circumstances, Paul employed counsel, John De Haven White, Esq., to represent him. He investigated the above facts and advised Reid to withdraw the charges. Counsel for Paul said: "Reid was convinced of the wisdom and justice of this and endeavored to abandon the charges," but was told by some government official that if he did, he would promptly be prosecuted for perjury.

As above stated, the defendant Paul was convicted of uttering the check for $472.72. The crime of "uttering" a forged writing has often been defined as "offering to another a forged instrument with a knowledge of the falsity of the writing and with the intent to defraud."

The defendant says that the judgment of conviction should be reversed for, at least, two reasons:

1. Because Reid should not have been allowed over objection to testify against his wife and Paul.

At common law the rule is well settled that a husband was not allowed to testify for or against his wife, and in Pennsylvania this rule has been followed ever since the case of Commonwealth v. Manson, 1 Ashm. (Pa.) 31. This...