State v. Berko

• Decision Date: 26 June 1962
• Docket Number: No. A--315 and A--339,A--315 and A--339
• Citation: 183 A.2d 118,75 N.J.Super. 283
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Robert BERKO, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Robert GUDGER, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 283

75 N.J.Super. 283

183 A.2d 118

STATE of New Jersey, Plaintiff-Respondent, v. Robert BERKO, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Robert GUDGER, Defendant-Appellant.

No. A--315 and A--339.

Superior Court of New Jersey Appellate Division.

Argued May 28, 1962.

Decided June 26, 1962.

Herman J. Ziegler, East Orange, for appellant Robert Berko.

A. Donald McKenzie, Union, for appellant Robert Gudger (McKenzie & Hehl, Union, attorneys, A. Donald McKenzie, Union, of counsel and on the brief).

Solomon Lautman, Asst. Prosecutor, for respondent (Vincent P. Keuper, Monmouth County Prosecutor, attorney; Solomon Lautman, Asbury Park, of counsel and on the brief).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FREUND, J.A.D.

Defendants Robert Kerko and Robert Gudger were indicted on two counts for uttering 'false, forged and counterfeited' checks on July 30, 1960, in violation of N.J.S. 2A:109--1, N.J.S.A., and aiding and abetting each other in do doing, N.J.S. 2A:85--14, N.J.S.A. They were found guilty after a jury trial and sentenced to a term of two to four years at State Prison on each count, the sentences to run concurrently. They appealed their convictions.

The essential facts developed on the State's case came from four witnesses. Defendants did not testify, nor did they offer testimony of any witnesses.

Dorothy Cizon, a secretary in the Bayway office of the National State Bank in Elizabeth, N.J., testified that she interviewed both defendants when they came to the bank on Friday, July 15, 1960, at 2:25 P.M., to open a checking account. She prepared a new account memo from information given to her by defendants. The memo discloses the account was to be in the name of National Fire Alarm Rental Service (National) of 112 E. 2nd Avenue, Roselle, N.J. It identified James Noonan of 28 Schley Street, Newark, N.J. as president of National, and Gudger as its secretary. The account was opened with a check for $100 drawn on a Maplewood, N.J. bank. Because the account was opened late in the day, that check was not processed until the following Monday, July 18. On July 26 the check for the initial deposit was returned for insufficient funds, leaving the account without a balance.

Miss Cizon testified that Gudger represented himself as being Noonan and signed the signature identification card with Noonan's name. The defendants completed a corporate resolution in her presence with the signatures of Noonan and Gudger affixed as president and secretary of the corporation, respectively, and certified as their 'authentic official signatures.' (How the resolution could have been completed in this fashion--with Gudger's and 'Noonan's' signatures- --in the presence of a presumably responsible bank employee is not explained.) The bank prepared a checkbook for the use of National. Printed on the face of the checks were National's name, its address, telephone number, and the word 'payroll.' The checkbook was held at the bank, where it presumably arrived between July 25 and 28. Miss Cizon was unable to state the exact date when the checkbook was 'picked up.'

Mary Steinberger, an employee in the credit department of Mortgomery Ward in Eatontown, N.J., was the next witness. She testified that on Saturday, July 2, 1960, Gudger came to her with a check made to his order, signed by Berko, and asked if he could have it cashed. She took the check and Gudger's driver's license to Mr. McKenzie, the operating manager of the store, who refused to approve cashing it 'because it was a second party check and * * * identification of the signing party was necessary.' Gudger then told her the check had been signed by his 'boss' who was out in the main part of the store. He left and soon returned with Berko. Defendants were then taken to McKenzie's office.

The following Saturday, July 9, defendants again came to Mrs. Steinberger, this time with two checks to be cashed, and she sent them to McKenzie. She disclaimed knowledge as to wheter the checks on either of these dates were cashed.

Defendants returned to the Montgomery Ward store the next Saturday, July 16. McKenzie was on vacation, and Mrs. Steinberger took their checks and identification to Mr. McGee, the auditor, who approved them. Although her testimony is unclear as to what occurred on the following Saturday, July 23, it would appear that defendants may have again cashed checks in her presence that day.

Finally, on Saturday, July 30, defendants brought two National payroll checks to her. These are the alleged forged instruments. Being satisfied with the previous identification of defendants, she approved the checks for payment. Gudger's check was to his order for $129.01; the other check was to the order of Berko for $127.03. Photographic copies of these checks, marked as exhibits, show that they were signed by 'James Noonan,' and the amounts payable were filled in by a check writing machine.

We note here that the checks presented on the Saturday before July 30 were personal and not corporate checks, in amounts of less than $100. Mrs. Steinberger testified that to her knowledge these checks had not been dishonored.

Joseph E. Freda, assistant cashier at the same office as Miss Cizon, corroborated her testimony that National's account was opened on July 18 with the $100 deposit. The bank statement shows that on July 26 $100 was charged against the account, thereby reducing National's balance to zero. The bank records disclose that on August 1 a deposit of $530 was credited to National's account. On August 3 there were presented for payment 13 checks varying in amounts between $126 and $129. The bank paid four checks, while nine were returned for insufficient funds. A nominal balance remained in the account and was later appropriated by the bank for service charges.

Freda's testimony was that National's account had been closed automatically on July 26 when there was a zero balance. The fact remains, however, that the $530 check was accepted for deposit, under the same account number and without formally reopening the account. Moreover, it was not until August 3 that the bank's tellers were instructed not to accept any further deposits on National's account.

The last witness was Philip Delano, a police officer of Millburn, N.J. His testimony did not directly relate to the two checks.

Defendants presented no evidence or witnesses. Neither the prosecution nor the defense offered any proof as to Noonan's whereabouts.

The full text of the forgery statute under which defendants were convicted reads as follows:

'Any person who, with intent to prejudice, injure, damage or defraud any other person:

a. Falsely makes, alters, forges or counterfeits any record or other authentic matter of a public nature or character, or any printed or written instrument or indorsement, acceptance, transfer or assignment thereof; or

b. Utters or publishes as true, any such false, altered, forged or counterfeited matter, knowing the same to be false, altered, forged or counterfeited--

Is guilty of a high misdemeanor.' N.J.S. 2A:109--1, N.J.S.A.

It follows that, whatever may have been defendants' intent or knowledge in negotiating the two checks at Montgomery Ward on July 30, they could not be convicted of violating N.J.S. 2A:109--1, N.J.S.A., unless, in the words of the indictments, the checks were 'false, forged and counterfeited.'

Forgery has generally been defined as the 'false making or materially altering, with intent to defraud, of any writing, which, If genuine, might apparently be of legal efficacy, or the foundation of legal liability.' Hubsch v. United States, 256 F.2d 820, 823 (5 Cir. 1958); 23 Am. Jur., Forgery (1939), § 2, p. 676. Forgery 'may be committed in any writing, which, If genuine, would operate as the foundation of another's liability or the evidence of his right.' 3 Underhill, Criminal Evidence (5th ed. 1957), § 770, p. 1769. In Rohr v. State, 60 N.J.L. 576, 579, 38 A. 673 (E. & A. 1897), the court considered the antecedent of N.J.S. 2A:109--1, N.J.S.A., and, in examining the statutory phrase 'to falsely make, alter, forge, or counterfeit,' noted that 'falsely' as used in the statute implies that the paper or writing is 'not genuine, fictitious, not a true writing.' (Emphasis added).

Forgery has also been said to have a 'broad' as well as a 'narrow' definition with respect to the use of a fictitious or assumed name. The broad definition applies in a majority of jurisdictions, where it is settled that forgery may be committed by executing, or procuring to be executed, a written instrument in a fictitious or assumed name with intent to defraud. Annotation, 'Forgery: use of fictitious or assumed name,' 49 A.L.R.2d 852 (1956) (cases supporting this rule are cited at pp. 856--863). The broad definition has been adopted by New Jersey. State v. Ruggiero, 43 N.J.Super. 156, 159, 128 A.2d 7 (App.Div.1956), affirmed 25 N.J. 292, 135 A.2d 859 (1957); 2 A.L.R.2d Supplemental Service (1960), p. 3192. The narrow definition states that forgery is committed when one, with intent to defraud, falsely makes or alters an instrument in writing so as to make it appear that such an instrument is that of one other than the person actually making it. Green v. State, 76 So.2d 645, 49 A.L.R.2d 847, 850 (Fla.Sup.Ct.1954); Annotation,49 A.L.R.2d supra, at p. 863 for cases supporting this rule.

Clearly, these authorities dispel the possibility that Berko or Gudger were forgers within the meaning of the statute if the two checks were in fact genuine, although the instruments were worthless. This conclusion is supported by Goucher v. State, 113 Neb. 352, 204 N.W. 967, 41 A.L.R. 227 (Sup.Ct.1925), where the court, interpreting a statute similar to N.J.S. 2A:109--1, N.J.S.A., stated:

'The genuine...