Saucier v. State

• Citation: 102 Miss. 647,59 So. 858
• Decision Date: 11 November 1912
• Docket Number: 16,096
• Court: United States State Supreme Court of Mississippi
• Parties: M. D. SAUCIER v. STATE

59 So. 858

102 Miss. 647

M. D. SAUCIER v. STATE

No. 16,096

Supreme Court of Mississippi

November 11, 1912

October, 1912

APPEAL from the circuit court of Jackson county, HON. T. H. BARRETT Judge.

M. D Saucier was convicted of uttering a forged instrument and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Jas. H Neville, for appellant.

This warrant required no indorsement, and the indorsement or writing of the name of Charles Lee on the back of the warrant added no force or validity to the same. It created no legal liability, and could not have aided in defrauding any one. To constitute the crime of forgery, it is essential that three things should exist; first, there must be false making or other alteration of some instrument in writing, there must be a fraudulent intent, and the instrument must be apparently capable of effecting a fraud. 19 Cyc. 1373.

This warrant was issued by the board of supervisors of Jackson county, subject to all the conditions which surrounded the issuing of county warrants. One condition in the issuance of a county warrant was that it should be payable to bearer, and this warrant would have been paid by the county treasurer, if all other requirements of law had been availed of, by any person presenting the same to him, and that without reference to whose name was written upon the back of it. The mere writing of the name of Charles Lee on the back of the warrant gave it no more legal force, no more effect than it had before. It matters not if Mr. Lee's name was written on the back of the warrant, and after his name, dozens of others, when the warrant was presented to the county treasurer, he was required to pay the same to the bearer in the order of its registration unless there was sufficient funds in the treasury to pay all registered warrants. The Pascagoula National Bank, when it cashed this warrant, knew that the county treasurer would be required to pay the warrant to the bank when presented, and knew also that the warrant would be paid only in the order of its registration, unless there was sufficient funds in the county treasury to pay all the registered warrants in the county, and therefore, the writing of the name of Charles Lee and the name of Saucier on the back of the warrant added nothing to its force and was the merest surplusage, and therefore and of course the writing of that which is mere surplusage upon the back of a paper is not forgery, and cannot be forgery; we are now discussing the criminal, and not the civil, liability of parties.

How could the writing of the name of Charles Lee on the back of this warrant defraud the Pascagoula National Bank? The bank knew the force and value of the warrant; knew that it was unnecessary for Mr. Lee's name to appear on the back of the warrant, and knew that the writing of his name thereon would not add to the force or legal liability of the paper, but undertook, indeed knew, that with the warrant in its hands, it could go to the treasurer of the county and demand the payment thereof without reference to Lee's name, and without reference to Saucier's name, and that the county treasurer would be compelled under the law to pay the same at once if there was sufficient funds in the county treasury to pay all warrants registered against the county; otherwise that it would be the duty of the treasurer to pay it in the order of its registration. There was no possible way by which the bank could be defrauded, and if it were impossible to defraud the bank by the manner in which the paper was to be handled, then the appellant could not be convicted of an intent to defraud. He could not be convicted of defrauding because it was impossible under the circumstances to defraud, and therefore he could not be convicted of the intent. We submit that the paper is not one upon which forgery can be predicated, and that therefore, on these grounds, the demurrer should have been sustained. 2 Bishop's Criminal Law, sections 570 and 573.

The writing of the name of Charles Lee on the back of this warrant was, to say the most of it, a mere harmless alteration, and is not therefore forgery.

Denny & Denny, for appellant.

In France v. State, 83 Miss. 281, 35 So. 313, it is declared that "to authorize an indictment for forgery, the instrument must either appear on its face to be, or be in fact, one which, if true, would possess some legal validity; or, in other words, must be legally capable of effecting a fraud."

We respectfully insist that the sixth and seventh grounds of demurrer are well taken. The warrant, as set out in the indictment, was payable to Chas. Lee, or bearer, but there is no allegation that its transfer could be effected only by indorsement, or that indorsement thereof by Chas. Lee was essential to its transfer or negotiability. That such allegation was necessary is evident in view of what all the courts have held in reference to immaterial alterations of or additions to instruments of writing on which a charge of forgery is based. If such indorsement was not necessary to a valid transfer of the warrant, then the writing of the name of Chas. Lee on the back of it by the party selling it to appellant was not a forgery, because of the immateriality of such indorsement, as such, if genuine, would neither add to or take from the validity of the warrant, and consequently, such act could not be a forgery; nor could the act of appellant in presenting the warrant and collecting the face value thereof be held to be uttering a forgery. The warrant payable to Chas. Lee, or bearer, was transferable by mere delivery; the holder, appellant here, claimed and held title thereto as bearer, and the indorsement of Chas. Lee was not essential to enable the bearer to collect or bring suit upon the warrant. The only effect an indorsement of such paper could have would be to render him liable to a subsequent bearer or holder. The circumstance of making the warrant payable to Chas. Lee, or bearer, did not compel the holder to show an indorsement by Lee, since it was payable in the alternative, and not to Lee absolutely. It was transferable by mere delivery. This theory or rule of law is supported by Tillman et al. v. Ailles, 5 S. & M. 373. Again in Hathcock et al. v. Owen et al., 44 Miss. 799, it is held that a note "payable to B. F. Owen, or bearer," is negotiable by delivery. A transfer in that mode is an order to the makers to pay the holder, and invests the holder thus acquiring the possession with the complete legal title. Again in Hart v. Taylor, 70 Miss. 655, 12 So. 553, quoting with approval Craig v. Vicksburg, 31 Miss. 216, it is held that bonds, or other sealed instruments, as well as bills, notes, etc., are transferable, when made payable to bearer, by mere delivery. So, under such authority, we assert with positiveness, that the name of Chas. Lee on the back of said warrant did not, in any manner, affect the warrant of title thereto, or negotiability thereof. Besides, it is a matter of common knowledge and universal practice, that such warrants are transferable, or collected, without indorsement. There is no statutory requirement of such indorsement, and no rule or custom therefor. It, therefore, necessarily follows that the unauthorized writing of the name of Chas. Lee on the back of the warrant by some unknown holder thereof, and the uttering of it by appellant could not be the subject of forgery, or of the crime of uttering a forgery. This is true for the reason that such, if genuine, would have been of no legal efficacy. It is simply a harmless act and one that could not materially affect the warrant, or its negotiability. Indorsements of such character, to be the subject of forgery, must be of something which, if genuine, would be of legal efficacy. The legal liability and the benefit, or property therein was in no sense altered, but remained unchanged. It was a nullity and a harmless addition to the warrant. Such is the doctrine declared in 2 Bish. Cr. Law, sections 570-573. In Cyc. 1379, is the statement: "The third element of forgery is that the writing shall possess some apparent legal efficacy, because otherwise it would have no tendency to defraud; or, in other words, the writing must be one which, if genuine, might injure another. This proposition is so obvious that the mere statement thereof proves it." So, here, if the indorsement was not essential to negotiability of the warrant, it could not affect anyone injuriously, because it was payable to bearer and subject to transfer by delivery without indorsement.

The law of forgery, and uttering a forgery, which we are here awkwardly endeavoring to elucidate and apply to the case at bar, is laid down with extraordinary force and clearness in Wilson v. State, 85 Miss. 687, 38 So. 46, where in a draft for "two and 50-100 dollars" as written out in the body of it, and in the corner thereof the figures $ 2.50/100, Wilson put the figure "1" before the figure "2" in the corner, making those immaterial figures $ 12.50 instead of $ 2.50, and undertook to negotiate it as $ 12.50, the court held: "This was not a forgery, because it was an immaterial part of the paper, and because it could not possibly have injured anybody. In order to constitute the crime, there must not only be the intent to commit it, but also an act of alteration done to a material part, so that injury might result." And inasmuch as forgery could not be predicated of such immaterial act, the court further held that a conviction of an attempt to commit forgery could not be sustained. And we submit that, on the same ground of reasoning, the appellant here could not be lawfully convicted of forgery, or of uttering a forgery.

The case of Cox v. State, 66 Miss. 14, 5 So. 618, where Cox changed the date of...