State v. Brown

Decision Date10 June 1909
Docket Number1998
Citation102 P. 641,36 Utah 46
CourtUtah Supreme Court
PartiesSTATE OF UTAH, Respondent, v. ARTHUR BROWN, Appellant

APPEAL from District Court, Third District; Hon. George G Armstrong, Judge.

Defendant was convicted of forgery and appealed.

REVERSED AND NEW TRIAL GRANTED.

Powers & Marioneaux for appellant.

A. R Barnes, Attorney-General, for the State.

RESPONDENT'S AUTHORITIES.

It was sufficient for the state to prove a de facto corporation. This is undoubtedly the law. (People v. Hughes, 29 Cal. 257; People v. Ah Sam, 31 Cal. 645; People v. Barrie, 49 Cal. 342; State v. Thompson, 23 Kan. 338, 33 Am. Rep. 165; U. S. v. Amedy, 11 Wheat 392; Reed v. State, 15 Ohio Rep. 217; State v. Pittam [Wash.], 72 P. 1042.) The fact that the company was incorporated became material only as a matter of description, and that it was not an element of the crime. The case is widely different where a suit is pending in which the legal existence of the corporation may be made an issue. (U. S. v. Amedy, supra; People v. Ah Sam, supra.)

FRICK, J., STRAUP, C. J., and McCARTY, concur.

OPINION

FRICK, J.

The appellant was charged, tried, and convicted of the crime of forging and uttering as genuine a certain check. The case was before this court at a former term, and the judgment of conviction for the same offense was reversed. (State v. Brown, 33 Utah 109, 93 P. 52.)

The first assignment relates to the same error for which the case was reversed on the former appeal, namely, that the trial court erred in permitting the corporate existence of the Utah Apex Mining Company to be proved by admitting evidence that said company was generally reputed to be a corporation. It is insisted that the evidence in this regard was insufficient because it was not shown that said company was reputed to be a corporation in Salt Lake county, where the alleged crime was committed. We are of the opinion that the ruling of the court and the evidence with respect to the corporate existence of said company were within the rule laid down in our former opinion in this case, and hence this assignment must be overruled.

It is also contended that the court erred in admitting in evidence the articles of incorporation of the Utah Apex Mining Company, upon the ground that the said articles were not authenticated as required by our statute. In answer to this it must suffice to say that there was no dispute with respect to the corporate existence of said company. The corporate existence was not assailed in a direct proceeding, and all the state was required to do was to show that the Utah Apex Mining Company was a corporation de facto; that is, that it was reputed to be such. Although we should concede that the court erred in admitting the articles of incorporation for the reason contended for by appellant, yet in view that the evidence that the Utah Apex Mining Company was a corporation de facto was undisputed, and was in accordance with our statute and in all respects sufficient to authorize the jury to find that said company was a corporation de facto, the appellant was not prejudiced by the admission of the articles in evidence. The record does not present a case where the jury might have been misled by alleged incompetent evidence to the prejudice of the complaining party, and hence this assignment must likewise be overruled.

Another assignment is that the undisputed evidence shows that the defendant was insane when the alleged offense was committed, and hence was legally incapacitated to commit a crime. In view of the whole evidence and the somewhat peculiar circumstances of this case this assignment presents the only serious question in the case. We have given it much consideration, and are free to confess that we have had some difficulty in arriving at a satisfactory solution of the problems involved. At the trial the defendant made no attempt to deny or explain the acts charged as constituting the offense, but relied solely upon the defense of insanity, while the state relied entirely upon proof of the acts charged, without in any way attempting to rebut or explain the evidence of insanity submitted on behalf of the defendant.

The evidence against the defendant tended to establish the following facts: On May 21, 1906, at the time the alleged was committed, the defendant was in the employ of the Utah Apex Mining Company as bookkeeper and purchasing agent. He had been so employed by Mr. W. C. Orem, the general manager of said company, for about four months prior to said date. Mr. Orem was business manager or superintendent of several other mining corporations, and the defendant also assisted Mr. Orem with respect to the business affairs of such other corporations. On the 20th day of May, 1906, the defendant purchased from a certain stock broker certain stocks, the purchase price of which amounted to $ 9562.50, and paid therefor by giving his personal check to the broker. On the day following the broker spoke to the defendant about the matter in the street, and informed him that the bank refused to honor the check for want of funds. The defendant said that he had omitted to deposit funds, but would do so at once, and that the matter was all right. In order to make the deposit defendant went to Mr. Orem's office, and drew a check for $ 6125 and signed the check "Utah Apex Mining Company, by W. C. Orem, Manager," and also made another check for $ 3437.50, and signed the name of the Butler-Liberal Com. Mining Co. thereto. These checks were forthwith deposited by the defendant, and the bank thereupon paid his check to the broker. On the same afternoon Mr. Orem was telephoned to by a certain bank with respect to the Butler-Liberal Company's check. The bank, it seems, doubted its genuineness. Mr. Orem called defendant's attention to the check, and defendant said he knew nothing concerning such a check. Whether defendant's attention was at that time directed to the Utah Apex Mining Company's check is not clear, but Mr. Orem, on looking over the checkbooks later in the day, discovered the stub for the $ 6125 check, across which the word "void" was written in red ink. Mr. Orem also found another stub in the Utah Apex Mining Company's checkbook similarly marked, which was drawn for $ 5000. In addition to this last check he found a fourth one, but the amount is not given. All the checks were in the handwriting of the defendant. It will be observed that the sum of the first two checks amounted to the exact amount for which the defendant's personal check was given as the purchase price of the stock, namely, $ 9562.50. It is not made clear whether defendant passed, or attempted to pass, the two checks last above mentioned. The discovery that the checks were forgeries followed almost immediately after they had been uttered. When the defendant's attention was directed to the check stubs marked "void," his explanation appears not to have been satisfactory to Mr. Orem. Defendant, some time in the afternoon, left Mr. Orem's office, and, before his bank closed, also drew $ 1000 in bills of large denominations; and in the evening he was arrested at the railroad station, intending, as he said, to go to Los Angeles. At the time of his arrest he had on his person about $ 970, presumably a part of the $ 1000 he had drawn from the bank in the afternoon. It also appeared that the defendant had no authority to sign checks, either by himself or by signing Mr. Orem's name thereto; that Mr. Orem was the only person authorized to sign checks, and that the signatures of Mr. Orem to the checks in question were traced or simulated. It is apparent from the evidence that it was not very difficult for an experienced person to detect the forgeries by a careful inspection of the checks themselves.

The foregoing substantially covers the evidence offered by the state. As already indicated, the defendant made no effort either to deny or explain the acts charged against him, but relied wholly on the defense of insanity, in support of which the record discloses the following facts:

Defendant, at the time the alleged offense was committed, was upwards of thirty years of age. He had lived in Salt Lake City for many years, and was well known. He had been employed in responsible positions in banks, and otherwise, for many years, and had always lived at home with his parents and brother and sisters. The testimony is all to the effect that for a period of years before the alleged offense he was more than ordinarily alert in business affairs, and was a very competent business man. The testimony, however, shows that some of his ancestors were insane. His father's grandmother died in an insane asylum in England, and one of his father's grandfathers committed suicide while insane. One of the father's sisters was also insane at one time, and the father himself was afflicted for a number of years with some mental malady. For about two years prior to the alleged offense the defendant exhibited marked signs of mental disturbance or breakdown. It is not practical to set forth even a small part of the testimony of the many witnesses who testified with respect to defendant's mental aberrations. We will therefore content ourselves by giving but a mere outline of what we deem the most salient features of the testimony.

Some time prior to the alleged offense, and during the Russo-Japanese War, the defendant conceived the opinion that the Japanese people were the strongest nation on the face of the earth, and that this was due to the fact that they consumed rice as the principal part of their diet. He therefore, insisted that his mother and sisters must prepare rice for him, and he would eat but little else. He also seemed imbued with the idea that he knew why some men, and especially the Jews, became...

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