State v. Hauser

• Decision Date: 14 March 1904
• Docket Number: 14,890
• Citation: 36 So. 396,112 La. 313
• Court: Louisiana Supreme Court
• Parties: STATE v. HAUSER

36 So. 396

112 La. 313

STATE v. HAUSER

No. 14,890

Supreme Court of Louisiana

March 14, 1904

Rehearing denied April 11, 1904.

Appeal from Criminal District Court, Parish of Orleans; Joshua G Baker, Judge.

Andrew Hauser was convicted of forgery, and appeals. Affirmed.

Adams &amp Otero, Robert John Maloney, and Thomas Joseph Duggan, for appellant.

Walter Guion, Atty. Gen., and Chandler Clement Luzenberg, Dist Atty., for the State.

NICHOLS, C.J. BREAUX, J., dissents.

OPINION

NICHOLLS, C.J.

Statement of the Case.

Defendant was prosecuted under an indictment on three counts, which charged, first, conspiracy to commit forgery; second, forgery; third, publishing as true a false, forged instrument.

On trial he was acquitted on the first two counts and found guilty as charged on the third.

He was sentenced to suffer imprisonment in the state penitentiary at hard labor for two years, and he appealed.

The third count was as follows:

"And the grand jurors of the state of Louisiana, duly impaneled and sworn in and for the body of the parish of Orleans, in the name and by the authority of the said state, upon their oath further present: That one Andrew Hauser, late of the parish of Orleans, on the tenth day of February, in the year of our Lord one thousand nine hundred and two, with force and arms, in the parish of Orleans aforesaid, and within the jurisdiction of the criminal district court for the parish of Orleans, feloniously did publish as true a certain false, forged, and counterfeited order for the payment of money, known as the bill for telegraphic services of the Western Union Telegraph Company, a corporation having a domicile and doing business in the said parish of Orleans, against the Fruit Dispatch Company, also a corporation having a domicile and doing business in the said parish of Orleans, and which said bill is dated New Orleans, February tenth, one thousand nine hundred and two, and contains and is a descriptive list of telegrams represented to have been sent and received by the said Western Union Telegraph Company, for and on account of the said Fruit Dispatch Company, on the seventh, eighth, ninth, and tenth days of February, one thousand nine hundred and two, and the charges due therefor, and which said bill, when signed and certified as correct by one Clarence Rein, then and there a clerk and employe of the said Fruit Dispatch Company, became and was an order for and upon the said Fruit Dispatch Company to pay to the Western Union Telegraph Company the total amount of money so represented to be due on and by the said bill, and which said bill was, on the tenth day of February, one thousand nine hundred and two, feloniously and fraudulently signed and certified to as correct by the said Clarence Rein, then and there acting as a confederate, and at the instigation of the said Andrew Hauser, the said bill having been falsely made by the said Andrew Hauser, with intent to cheat and defraud, contrary to the form of the statute of the state of Louisiana in such case made and provided, and against the peace and dignity of the same."

Motions for a new trial and in arrest were filed on behalf of defendant and overruled. The grounds assigned for a new trial were:

First. In the third count of the indictment it is sought to charge the said Andrew Hauser, as principal, with having feloniously published as true a certain statement of the claim for tolls of the Western Union Telegraph Company against the Fruit Dispatch Company, described as an "order for the payment of money," but --

(a) It is not set out in the indictment, as required by section 833 of the Revised Statutes of the state for 1876, that Hauser published as true an "order for the payment of money" knowing the same to be false, altered, forged, or counterfeited, or that he did so with intent to injure or defraud.

(b) It is not alleged that the statement described in the indictment was published as true by the said Hauser after it had become, as averred, an "order for the payment of money," by having been signed and certified as correct by Clarence Rein; nor is it averred that after such certification it was published as true by the said Rein, or any other person in collusion with Hauser, either while the latter was present or during his absence; nor was proof thereof made at the trial.

(c) It is not averred in the indictment that the Fruit Dispatch Company was at all indebted to the Western Union Telegraph Company, or to Hauser or Rein, or any other person or corporation, in any amount, or that there was the least obligation on the part of the said Fruit Dispatch Company to pay any sum whatever; nor was proof thereof made at the trial.

(d) Even if, as averred in said indictment, Clarence Rein on the 10th of February, 1902, signed and certified the statement alleged to have been published as true, and did this at the instigation of Hauser, still, since it is not charged, nor was it shown at the trial, that Hauser was present during the time, at the end of February, when the said statement so signed and certified by Rein was presented to H. L. Mitchell, cashier at New Orleans for the Fruit Dispatch Company, therefore the said Hauser could not be legally convicted on the third count of said indictment as a principal.

(e) The evidence in the case, without exception, all tends to prove that the only paper "published" by Hauser was the statement referred to in the indictment before it had received the signature and certification of Rein, which, it is averred, converted it into an "order for the payment of money," and that at the time it was so "published" to Rein no crime could have been committed which is set out in the pending prosecution, for the reason that delivery to a confederate is not in law the publishing as true of a false instrument, and because, further, even the actual publication of an instrument which it is conceded had not yet acquired the character and purport of an order for the payment of money was not triable under the indictment.

(f) The said Hauser by the verdict of the jury was adjudged to have neither conspired, combined, agreed, nor confederated with the said Rein to forge the statement hereinbefore described into "an order for the payment of money," nor in collusion with the said Rein committed the forgery itself. This being so, it was impossible for Hauser to have been guilty of knowingly publishing the order as true, with intent to injure or defraud.

Second. The said verdict is in point of law against the charge of the court, in that the proof by which it was sought to support the averment that the statement alleged to have been falsely made and published as true by the said Hauser, containing a descriptive list of telegrams represented to have been sent and received by the Western Union Telegraph Company for and on account of the Fruit Dispatch Company, when signed and certified as correct by the said Clarence Rein, became and was an order on the said Fruit Dispatch Company to pay to the said Western Union Telegraph Company the total amount of money so represented to be due on and by the said bill, established that the said certification and indorsement of correctness alleged to have been thus made by the said Clarence Rein did not render it the duty of the Fruit Dispatch Company to pay the claim; for, according to the evidence heard, not only was the said signature and certification on the said statement insufficient in fact, but it was, moreover, indispensably necessary that a voucher for the amount of the claim, signed by H. L. Mitchell, cashier at New Orleans of the said Fruit Dispatch Company, should be forwarded, together with the statement, to the New York office, and, unless such voucher accompanied the statement, no payment would have been made.

A verdict of "guilty on the third count," under the testimony elicited upon this point, was, therefore, in utter and flagrant disregard of the specific instruction delivered by the court, at the instance of the jury, upon their return to be further charged, which was in these words: "If by presentation of this account, certified to be correct, it became the duty of the Fruit Dispatch Company to pay that bill, and that indorsement proved the correctness, it might be regarded as an order for the payment of money. If that was not sufficient, but it was necessary to have a voucher, then it would not be an order for the payment of money."

Third. The statement, which is alleged in the indictment to have become and been an order for the payment of money when signed and certified as correct by the said Rein, was shown by the production of the statement itself to be simply paragraphed "O. K.," and there is no averment, as in law there must be, setting out that the letters "O. K.," on the said statement, over the signature of the said Rein, implied that he certified the same to be correct.

Fourth. The specific complaint in respect to the forgery is substantially that Hauser, as the collector of the Western Union Telegraph Company, entered false charges against the Fruit Dispatch Company, in a certain statement which it was his duty to make, thus creating an original record which is not true, and that in the same way Rein made an original entry, over his own signature, certifying to the correctness of the account. To do this is not forgery, and, where there is no forgery, there can be no publishing of a forgery as true.

Fifth. When, during the course of the trial objection was interposed on behalf of defendant to the introduction in evidence of the statement described in the indictment, and heretofore referred to herein, for the reason that the same was not an "order for the payment of money," and because, further, the original record created by Hauser...