State v. Alexander

• Decision Date: 09 May 1925
• Docket Number: 5668.
• Citation: 236 P. 542,73 Mont. 329
• Parties: STATE v. ALEXANDER et al.
• Court: Montana Supreme Court

236 P. 542

73 Mont. 329

STATE v. ALEXANDER et al.

No. 5668.

Supreme Court of Montana

May 9, 1925

Appeal from District Court, Wheatland County; Wm. L. Ford, Judge.

J. G Alexander and Logan Fowell were indicted for forgery. From a judgment dismissing the information on sustaining a general demurrer, the State appeals. Affirmed.

L. A Foot, Atty. Gen., I. W. Choate, Asst. Atty. Gen., and L. R Daems, of Harlowton, for the State.

W. C. Husband, of Harlowton, N. R. Barncord, of Judith Gap, and J. P. Alexander, of Brookings, S. D., for respondents.

HOLLOWAY J.

On February 23, 1924, an information was filed in the district court of Wheatland county, in which the attempt was made to charge J. G. Alexander and Logan Fowell with the crime of forgery. The trial court sustained a general demurrer, entered a judgment dismissing the information, and the state appealed.

The writing, the subject of the alleged forgery, is designated a traveler's check, and it is charged that the Security State Bank of Judith Gap, Mont., had in its possession a number of these checks which it held in trust for the Bankers' Trust Company of New York City with authority to sell them and under agreement to remit the selling price to the trust company; that Alexander was vice president of the bank, and Fowell was assistant cashier; that each had authority to sign the checks for the bank and to deliver them to purchasers, but only upon receiving for each check so sold the full amount for which it was made payable, which amount was to be remitted to the trust company at once; that on December 10, 1923, the bank was insolvent, and Alexander and Fowell knew that it was insolvent, but nevertheless on that day they made out one of these checks for $20 to Chas. W. Franks, and delivered the instrument to Franks without receiving the full face value or any consideration whatever, and without remitting the amount to the trust company, and well knowing that any draft which the bank might issue in payment of the check would not be paid. It is alleged that Franks thereafter countersigned the check, and it was presented to and paid by the trust company, and that Alexander and Fowell acted willfully and feloniously with the intent to defraud the trust company. From these allegations and a copy of the instrument, which is contained in the information, it appears that when delivered to the bank by the trust company these checks were in skeleton form with appropriate blank spaces for the date, amount, name of the purchaser, and name of the selling bank, and that, when these blanks in one of the checks were filled, it became an accepted bill of exchange which the trust company was bound to pay.

The only question for determination is: Does the information charge forgery? So far as material now, section 11355, Revised Codes, provides:

"Every person who, with intent to defraud another, falsely makes, alters, forges, or counterfeits * * * any * * * bill of exchange * * * is guilty of forgery."

The Attorney General concedes that the three essential elements of the crime involved here are: (1) A false making of an instrument in writing; (2) a fraudulent intent, and (3) a writing which, if genuine, might apparently be of legal efficacy or the foundation of legal liability, and this is the view entertained by the authorities generally. 2 Bishop's Criminal Law, § 523; 26 C.J. 897; State v. Evans, 15 Mont. 539, 39 P. 850, 28 L. R. A. 127, 48 Am. St. Rep. 701; In re Farrell, 36 Mont. 254, 92 P. 785. We may eliminate from our consideration the second and third elements for it is apparent that a fraudulent intent is pleaded sufficiently, and that the instrument, if genuine, imposed legal liability upon the trust company. Our inquiry is, then, narrowed to the single question: Does the information charge that the instrument was falsely made?

The "making" in this instance consisted in writing in the date, the amount, and the name of the bank as drawer, and permitting Franks to write in his name as purchaser. It is alleged that Alexander and Fowell were authorized to do every one of these acts and, having done them, were authorized to deliver the check, but only upon condition that the bank receive the full amount for which the check was issued, and that the amount be remitted immediately to the trust company. Remitting to the trust company was manifestly a condition subsequent, and the allegation that the bank did not remit reflects only upon the question of intent. It is not involved in the solution of the question before us.

While conceding that the date of this check is the correct date, that the amount is the amount for which the bank was authorized to issue a check, that Franks is a real, not a fictitious, person, that these defendants were authorized to sign the name of the bank as drawer of one of these checks, and that the name signed to the check in question is the genuine signature of the bank, the Attorney General nevertheless insists that it is possible for a person to commit forgery under such circumstances, and the following texts are quoted in support of the contention: "A person may be guilty of forgery in making a false writing in his own name" (1 Brill's Criminal Law, § 558), and "an agent for some purposes may commit forgery by making or signing an instrument in disobedience to his instructions or in the improper exercise of his authority" (26 C.J. 898).

In support of the text, Brill cites United States v. Long (C. C.) 30 F. 678; Commonwealth v. Brewer, 113 Ky. 217, 67 S.W. 994; Moore v. Commonwealth, 92 Ky 630, 18 S.W. 833; and Commonwealth v. Wilson, 89 Ky. 157, 12 S.W. 264, 25 Am. St. Rep. 528. The facts of the first case were that John A. Long secured possession of a letter addressed to John G. Long, which contained a money order payable to John G. Long, and that ...