State v. Grider
| Decision Date | 24 May 1955 |
| Docket Number | No. 2652,2652 |
| Parties | The STATE of Wyoming, Plaintiff and Respondent v. Ernest E. GRIDER, Defendant and Appellant. |
| Court | Wyoming Supreme Court |
Dick Westra, Riverton, W. A. Muir, Rock Springs, for appellant.
Howard B. Black, Atty. Gen., Paul T. Liamos, Jr., Deputy Atty. Gen., James L. Hettinger, and Robert A. McKay, Asst. Attys. Gen., for respondent.
The defendant, Ernest E. Grider, was convicted of forgery and sentenced to the penitentiary for a period of five to seven years. The county and prosecuting attorney of Fremont county, Wyoming, filed an information against the defendant on October 21, 1953. This information was quashed and an amended information was filed on October 22, 1953, which leaving out the caption and affidavit attached thereto is as follows, to-wit:
'Ernest E. Grider, * * * being a person, did wilfully, and maliciously, and unlawfully, and feloniously, cause to be attempted to be passed, and cause to be uttered, and published, and passed, and attempted to pass, and did utter, and publish, and pass, as true and genuine, a certain promissory note, for the payment of money, and property, which said promissory note, together with all endorsements thereon, is in words and figures as follows, to-wit:
Promissory
Note
2200584-1-15
$2864.37
For Value Received, the undersigned as principals, jointly and severally promise to pay to Noble Lumber Co., or order, the sum of Two Thousand Eight Hundred Sixty Four 37/100 Dollars, ($2864.37) in 2 consecutive annual installments of $1432.19 each (except that the final installment shall be the difference between the amount of this note and the sum of the preceding installments), the first to become due and payable May 15, 1952, balance of installments to be paid on the same date of each month thereafter, with interest on principal after maturing of entire balance as herein provided at the highest lawful contract rate, and 15% of the principal and interest of this note, or, at the option of the holder, a reasonable sum as attorney's fees if placed in the hands of an attorney for collection after maturity. If any installment is not paid when due, the entire balance of this note shall become due and payable at the option of the holder. Authorized FHA 'late charges' (5cents per $1, maximum $5) are payable on any installment more than 15 days in arrears. The makers, endorsers and guarantors of this note waive presentment for payment, protest, notice of protest, demand for payment, notice of non-payment, and declaration of acceleration of payment. If permitted by law, each maker, endorser (except without recourse) and guarantor of this note hereby authorizes any attorney, prothonotary or clerk of court of any court of record to appear in such court, in term time or vacation, at any time after maturity of this note, and waive a jury trial and confess judgment without process in favor of the holder of this note for such amount as may appear to be unpaid thereon, together with costs and attorney's fees, and waive and release all errors which may intervene on any such proceedings and consent to immediate execution upon such judgment, hereby ratifying and affirming all that may be done by virtue hereof. Insofar as permitted by law, each maker, endorser and guarantor of this note expressly waives all right to claim exemption allowed by the Constitution and laws of this or any other state.
which said promissory note being a false, and forged promissory note, for the payment of money, and property, the said Ernest E. Grider knowing the same to be false, and forged, with intent to prejudice, and to damage, and to defraud a person, to-wit: The person of Noble Lumber Company, a Wyoming Corporation, a body corporate, and so did, Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.'
A motion to quash the amended information and a demurrer were filed and were overruled. The defendant pleaded not guilty. The case was tried commencing on December 14, 1953.
The defendant was a contractor contracting to erect buildings or additions thereto. And on a number of occasions, as it seems, caused the parties for whom he did his work to obtain a loan from the Federal Housing Administration--in this case Allied Building Credits, Inc. He had in his employ one Marion C. Jensen who was to contact people who might wish to have a building or an addition thereto constructed. On May 13, 1951, the defendant and Jensen, who lived at Riverton, Wyoming, went to see one Leonard Kosmiski who resided at or near Kinnear, Wyoming, some miles out of Riverton. They saw Kosmiski and talked with him about having an addition made to his house. Kosmiski testified that he refused to have the defendant do any construction work for him or to furnish any materials; that he did not sign any of the papers and note hereinafter mentioned; and did not authorize anyone to attach his signature thereto. It appears that, in order to obtain a loan from the Federal Housing Administration, a number of papers are to be executed, namely:
1. An application addressed to the Federal Housing Administration for the loan. (In this case the Allied Building Credits, Inc.)
2. A contract entered into between the person whose house or addition is to be constructed and a contractor.
3. A cash down payment certificate.
4. A completion certificate.
5. A note.
The forms used in the case at bar, as evidently in other cases, were printed with only some blanks to be filled in. On May 14, 1951, the defendant and Jensen met at the Teton Hotel in Riverton, Wyoming, and according to the testimony of Jensen, the defendant at that time filled in the blanks on the various papers above mentioned, except the note and part of the completion certificate, and asked Jensen to sign Kosmiski's name to these papers. Jensen testified Grider stated that it was all right with Mr. Kosmiski. 'He told me, when he asked me to do this, that Mr. Kosmiski--it was all right with him, and if he did not do any work that he would take care of the loan himself and pay this loan back in the event that Mr. Kosmiski could not see his way clear to go ahead with the job.' Jensen further stated that while Kosmiski had told him and Grider that they might use his name to see whether or not Kosmiski could get a loan, he did not testify that he, Jensen, had authority to sign Kosmiski's name to any documents. He further testified that he signed the various papers, consisting of an application for a loan, a contract purporting to be between defendant (in the name of U. S. Construction Company) and Kosmiski, the certificate showing the down payment, the certificate showing completion of the work, and the promissory note in question, all at the request of the defendant who thereupon took possession thereof. The application for a loan, the contract, and the certificate for the down payment are dated May 14, 1951. The completion certificate and the note are dated May 18, 1951. The defendant took these various documents to the Noble Lumber Company at Riverton, Wyoming. The blanks in the note were filled in by Fallbeck, manager of the lumber company, and he testified that this was done at the request of the defendant, the note being dated May 18, 1951, for the sum of $2,864.37, and payable in two installments, the first being due on May 15, 1952. Pursuant to this transaction, the Noble Lumber Company gave the defendant a check in the sum of $1,600.04 and also gave him lumber to the value of about $900. The check was cashed by the defendant. The lumber was put in a warehouse but consumed on various other works undertaken by the defendant. No work was ever done for Kosmiski and no material was ever furnished him by defendant. The Noble Lumber Company sent this note to the Federal Housing Administration (the Allied Building Credits, Inc.), and it received thereon the sum of $2,500, which it subsequently repaid.
Defendant admitted using the money and the lumber which was turned over to him by the Noble Lumber Company. He testified that Kosmiski gave Jensen permission to sign his name to the papers and that he asked Jensen as to whether or not he would sign Kosmiski's name to the papers; and that Jense said he would prefer to have Kosmiski sign them; that on May 14, 1951, Jensen told him, the defendant, that Kosmiski had actually signed the papers himself and that he, the defendant, caused the loan to be finally executed on the strength of the statement made to him by Jensen. He further stated that he saw Kosmiski on or about May 17, 1951; that at that time Kosmiski asked him to hold up the deal; that thereafter he called the lumber company and was then told it was too late, as the note had already been sent in; that he did not definitely know that Kosmiski had not signed the documents until about December 1, 1951, when Kosmiski told him that he had not signed them.
The defendant herein was charged with violation of the provision of Section 9-1002, W.C.S.1945, which, among other things provides that: 'Every person who shall falsely make, alter, forge or counterfeit any * * * writing obligatory, or promissory note for money, or other property, or shall counterfeit or forge the seal or hand writing of another, with intent to damage or defraud any person or persons, body politic or corporate, * * *; or shall utter, publish, pass or attempt to pass as true and genuine, or cause to be uttered, published, passed, or attempted to be passed, 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, altered, forged or counterfeited,) with intent to prejudice, damage or defraud any person or...
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