People v. Kramer

• Decision Date: 22 April 1933
• Docket Number: No. 21517.,21517.
• Citation: 352 Ill. 304,185 N.E. 590
• Parties: PEOPLE v. KRAMER.
• Court: Illinois Supreme Court

352 Ill. 304

185 N.E. 590

PEOPLE

v.KRAMER.

No. 21517.

Supreme Court of Illinois.

April 22, 1933.

Error to Circuit Court, Marion County; F. R. Dove, Judge.

Paul W. Kramer was convicted of forgery and he brings error.

Reversed.

R. J. Branson, of Centralia, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Ward P. Holt, State's Attorney, of Salem, and J. J. Neiger, of Springfield, for the People.

DUNN, Justice.

Paul W. Kramer was convicted of forgery in the circuit court of Marion county. He prosecutes this writ of error to review the judgment.

The indictment consisted of eight counts. Each of the first four counts charged that the defendant, being the county clerk of Marion county, on November 26, 1930, with intent to damage and defraud the county of its moneys, did forge and falsely and fraudulently make a certain county order for the payment of money, which county order was drawn by Paul W. Kramer, the county clerk of the county of Marion, for the sum of $2,063.23, of the value of $2,063.28, payable to Paul W. Kramer, county clerk of the county of Marion, dated November 26, 1930. Each of the other four counts charged the uttering, publishing, and passing as true and genuine, of the same order with the same intent, knowing the order to be false.

A motion was made to quash the indictment on the ground that the grand jury was not regularly impaneled. It appeared on the hearing of this motion that the clerk of the circuit court received from the county clerk a list of twenty-three names selected by the supervisors as grand jurors for the September term, 1931, of the circuit court, and on September 8 inserted their names in a venire requiring them to appear on September 28, 1931, to which he attached the seal of the court but omitted to attest the writ by his own signature. The sheriff notified each of the persons named, by postal card, to appear at the time and place and for the purpose stated and requested them to acknowledge service. They did so and were not otherwise served, but all appeared except two who were excused and one who did not appear until the jury had been impaneled. The sheriff made no return to the writ. Twenty grand jurors having appeared, the sheriff, by direction of the court, filled the panel. It is argued that the grand jury was not lawfully impaneled. The grand jurors, so far as appears, were lawfully selected. Though the venire was void, its only service was to notify the grand jurors that they were required to appear at the time fixed. They were so notified and were present in court when, according to the law, they should have been. Being there, there was no reason to inquire when or how they were notified, and the court properly proceeded to impanel them for the purpose for which they had been selected.

A further objection to the indictment of a more serious nature was made on the motion to quash. It is that the indictment did not charge a crime, because, while it charged that the defendant forged and falsely and fraudulently made a county order, it also disclosed that the defendant was the county clerk of Marion county, the only person authorized by law to draw a county order, and the order, therefore, instead of being forged and false, was genuine. The statute (section 105 of the Criminal Code [Smith-Hurd Rev. St. 1931, c. 38, § 277]) provides that: ‘Every person who shall falsely make, alter, forge or counterfeit any * * * county order * * * with intent to damage or defraud any person, body politic or corporate, * * * or shall utter, publish, pass or attempt to pass as true and genuine, * * * any of the above named false, altered, forged or counterfeited matters, as above specified and described, knowing the same to be false, * * * shall be deemed guilty of forgery.’ The conclusion, however, that the order was genuine and not forged is based on the hypothesis that the county clerk alone may draw county orders. This is not true. The County Clerk Act (Smith-Hurd Rev. St. 1931, c. 35, § 10) prescribes in section 10 the duties of the county clerk, as follows: ‘1st. To act as clerk of the county board of his county and to keep an accurate record of the proceedings of said board, file and preserve all bills of account acted upon by the board, and when any account is allowed or disallowed, he shall note that fact thereon, and when a part of any account is allowed he shall note particularly the items allowed. 2d. To keep a book in which he shall enter the number, date and amount of each order upon the county treasurer, and the name of the person in whose favor the same is drawn, and when such order is canceled, he shall note the date of cancellation opposite such entry. 3d. Before any such order is delivered to the person for whose benefit it is drawn, the county clerk shall present the same to the county treasurer, who shall personally countersign the same.’ The County Treasurer Act (Smith-Hurd Rev. St. 1931, c. 36, § 7) provides in section 7, in respect to county orders and their payment, as follows: ‘When any county order is presented to him to be countersigned, the county treasurer shall personally countersign the same, and shall also enter in a book, to be kept by him for that purpose, its number, date and amount, and the name of the person to whom the same is payable, and when any such order is paid, he shall cancel the same, and note the fact opposite such entry.’ Section 8 provides: ‘The county treasurer shall not countersign any county order before the same is filled up, nor until he shall have examined the records of the county board, and ascertained that the issuing of such order is warranted thereby.’ Section 9 provides: ‘No money or funds shall be paid out of any county treasury, except in accordance with an order of the county board, or when payment is specially authorized by law to be made.’ Paragraph 15 of section 1 of chapter 131 of our statutes (Smith-Hurd Rev. St. 1931) provides that in the construction of all statutes ‘the words ‘written’ and ‘in writing’ may include printing and any other mode of representing words and letters; but when the written signature of any person is required by law to any official or public writing or bond, required by law, it shall be in the proper handwriting of such person, or in case he is unable to write, his proper mark,' It is therefore apparent that a county clerk cannot alone draw a county order on which money could be collected from the county treasury or by which the county could be damaged and defrauded of its money. An order bearing his signature alone is of no effect. It requires, before its completion by delivery to the person to whom it is payable, the countersignature of the county treasurer in his own personal handwriting. While the county clerk, perhaps, could not forge an order by signing his own name where his signature, alone, was all that was required to make a valid, genuine order entitled to payment by the treasurer, no reason suggests itself or has been suggested why it would not be forgery for him to draw the order bearing his own genuine signature and the false and forged signature of the treasurer. The motion to quash was properly overruled.

[3] The question therefore arises on the record: Does the evidence prove the defendant guilty of forgery? This brings us back to the same question attempted to be raised on the motion to quash. There is no claim that the county board ever made an order authorizing the payment of the money to the defendant out of the treasury. The defendant, therefore, had no authority to draw the order and the treasurer none to countersign it. It was introduced in evidence on the trial. It bore on its face the words, ‘Countersigned W. C. Winkler, County Treasurer.’ The defendant testified that he issued the warrant and had it countersigned by the county treasurer, and that Eva Black countersigned it. Eva Black testified that she was a clerk in the county treasurer's office prior to December 1, 1930, and since has been county treasurer; that the order was countersigned by Walter C. Winkler; that it was a facsimile of his signature placed there with a stamp; that she could not say that as a clerk in the office she placed the countersign there or that she did not; that she does not know and there is no way of identifying who did it; that she countersigned a lot of warrants but does not recollect signing any particular one; and that orders were not registered when they were countersigned.

Three elements are essential to forgery: A false writing or alteration of an instrument, an intent to defraud, and the instrument as made must be apparently capable of defrauding. Goodman v. People, 228 Ill. 154, 81 N. E. 830;People v. Pfeiffer, 243 Ill. 200, 90 N. E. 680,26 L. R. A. (N. S.) 138,17 Ann. Cas. 703. The first of these elements is lacking in this case. The instrument is not a false writing. It is genuine-a county order drawn by the proper official to draw county orders and accepted or countersigned by the proper official for that purpose. It was irregularly drawn and irregularly countersigned, but it made no...