State v. Phillips

• Decision Date: 08 January 1954
• Docket Number: No. 9260,9260
• Citation: 127 Mont. 381,264 P.2d 1009
• Parties: STATE v. PHILLIPS.
• Court: Montana Supreme Court

Page 1009

264 P.2d 1009

127 Mont. 381

STATE v. PHILLIPS.

No. 9260.

Supreme Court of Montana.

Argued June 1, 1953.

Decided Oct. 6, 1953.

Dissenting Opinions Oct. 23, 1953.

As amended on Denial of Rehearings Dec. 29, 1953 and Jan. 8, 1954.

Lloyd J. Skedd, Ralph J. Anderson, Helena, argued the case orally for appellant.

Arnold H. Olsen, Atty. Gen., Vera Jean Heckathorn, Asst. Atty. Gen., William H. Coldiron, Sp. Asst. Atty. Gen., Michael G. Chilton, Co. Atty., Helena, for respondent. William H. Coldiron, Sp. Asst. Atty. Gen., argued the case orally.

ANGSTMAN, Justice.

Defendant was convicted of the crime of forgery. His motion for new trial was denied and he has appealed from the judgment and from th order denying a new trial.

The information charged that defendant uttered, published and passed as true and genuine a state warrant for gasoline tax refund, made out to and indorsed 'Paul Karst,' knowing the indorsement of the said 'Paul Karst' to be false and forged. Defendant questions the sufficiency of the information.

The statute charged to have been violated is R.C.M.1947, § 94-2001, reading: 'Every person who, with intent to defraud another, falsely makes, alters, forges, or counterfeits any charter, letters patent, deed, lease, indenture, writing obligatory, will, testament, codicil, annuity, covenant, bankbill or note, postnote, check, draft, bill of exchange, contract, promissory note, duebill for the payment of money, receipt for money or property, passage-ticket, power-of-attorney, or any certificate of any share, right, or interest in the stock of any corporation or association, or any auditor's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money or the delivery of goods or chattels of any kind, or for the delivery of any instrument in writing or acquittance, release or receipt for money or goods, or any acquittance, release, or discharge for any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or assurance of money, certificates of shares of stock, goods, chattels, or other property whatever, or any letter-of-attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien or convey any goods, chattels, lands or tenements, or other estate, real or peraonal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order, or assignment of any bond, writing obligatory, or promissory note for money or other property, or cunterfeits or forges the seal or handwriting of another on any official certificate, or utters, publishes, or passes or attempts to pass 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 who, with intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of any court, or the return of any officer to any process of any court, is guilty of forgery.'

It will be noted that the first part of the statute names many different documents that may be forged but when the statute speaks of indorsements it names only a part of the instruments and omits auditors' warrants, and hence, defendant contends that the statute when treating of the passing of an instrument containing a false indorsement does not cover the passing or uttering of an auditor's warrant containing a false and forged indorsement.

Defendant's contention in this respect cannot be sustained. The statute, so far as it prohibits the passing of instruments containing forged indorsements, covers among other instruments 'orders.' The indorsement of the warrant in question here amounted to the indorsement of an order within the meaning of the statute. State v. Barkuloo, 18 Wash. 52, 50 P. 577; State v. Woods, 112 La. 617, 36 So. 626; Board of Shawnee County Com'rs v. Carter, 2 Kan. 115; Protest of St. Louis-San Francisco Ry. Co., 157 Okl. 131, 11 P.2d 189; People v. Jones, 12 Cal.App. 129, 106 P. 724.

Defendant likewise contends that the warrant is non-negotiable and therefore its indorsement cannot be forgery because it does not affect legal rights. But the statute expressly treats of non-negotiable instruments as well as negotiable instruments. It names promissory notes for property and the assignment of any bond, neither of which are negotiable instruments. R.C.M.1947, § 55-201. The fact, if such it be, that the warrant in question is non-negotiable does not affect the question before us as to whether one who passes it when containing a known forged indorsement is guilty of forgery. Ex parte Solway, 82 Mont. 89, 265 P. 21.

It is likewise contended that the indorsement affects no legal rights and therefore cannot amount to forgery. It is not necessary, however, that the forged instrument should create civil liability before it can be held to be forgery. People v. Brown, 101 Cal.App.2d 740, 226 P.2d 647; State v. Longo, 132 N.J.L. 515, 41 A.2d 317; Milton v. United States, 71 App.D.C. 394, 110 F.2d 556.

The next contention of defendant is that there is not sufficient evidence to corroborate that of accomplices to warrant a conviction.

The story revealed by the accomplice Tomlinson was this: Tomlinson, an employee of defendant at his bar in Helena, went to Three Forks and there rented a post office box numbered 310 under the name of Paul Karst pursuant to a plan of operation proposed by defendant for 'making a little extra money, good money;' in accordance with the plan of operations Tomlinson procured some invoice books and placed them in a locked drawer at defendant's place of business; Tomlinson said the plan was to 'run phony claims through;' defendant gave him the invoices later and the witness prepared a false claim for gasoline tax refund in the sum of $319.50 in the name of Paul Karst and sent it through the mail to the state board of equalization; a warrant was issued in payment of the claim and mailed to Paul Karst, Box 310, Three Forks; the warrant was picked up by Tomlinson from post office box 310 at Three Forks; Tomlinson showed it to defendant at his place of business in Helena; defendant asked Tomlinson to indorse the name of Paul Karst on the warrant but he refused to do so and defendant then said in substance, get Buster Lake to sign it; Tomlinson did not know Buster Lake so defendant asked Joe LaValley to call Buster Lake to the bar and to tell him that Tomlinson would buy him a drink; this was done and Lake agreed to and did indorse the name of Paul Karst on the warrant; Tomlinson handed the warrant to defendant the next day and defendant put it in his pocket. Defendant presented the warrant to the Montana Power Company in payment of his bills receiving the difference of $39 in cash.

Defendant relies upon R.C.M.1947, § 94-7220, reading: 'A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.'

In State v. Cobb, 76 Mont. 89, 245 P. 265, 266, the court enumerated the rules deducible from prior decisions as to what evidence is necessary to corroborate that of an accomplice as follows:

'(a) The corroborating evidence may be supplied by the defendant or his witnesses.

'(b) It need not be direct evidence--it may be circumstantial.

'(c) It need not extend to every fact to which the accomplice testifies.

'(d) It need not be sufficient to justify a conviction or to establish a prima facie case of guilt.

'(e) It need not be sufficient to connect the defendant with the commission of the crime; it is sufficient if it tends to do so.

'(f) Whether the corroborating evidence tends to connect the defendant with the commission of the offense is a question of law, but the weight of the evidence--its efficacy to fortify the testimony of the accomplice and render his story trustworthy--is a matter for the consideration of the jury.'

In considering the sufficiency of corroboration the evidence offered by defendant himself may be considered. State v. Bolton, 65 Mont. 74, 212 P. 504; State v. Jones, 95 Mont. 317, 26 P.2d 341; State v. Yegen, 86 Mont. 251, 283 P. 210; State v. Cobb, 76 Mont. 89, 245 P. 265.

Defendant admitted that he uttered and passed the state warrant in question and received the $39 in change.

On the question of how the warrant came to be indorsed and defendant's knowledge thereof, Tomlinson's explanation is corroborated by the witness Joe LaValley who testified that he goes into defendant's bar quite frequently; that he was there on November 29, 1950, and saw George LaFontaine and Buster Lake there at that time; that he was talking with Buster Lake and George LaFontaine came in and said, 'you guys want a drink,' and they stepped up to the bar and had a drink on George LaFontaine. Defendant was present tending bar on this occasion. Also Tomlinson was present. The witness LaValley testified:

'Q. Did John Phillips call you over to the bar when you were in there the 29th day of November, 1950? A. Yes.

'Q. What did he ask you to do, if anything? A. He tole me to call Lake over. He said, 'He will buy him a drink.'

'Q. Who was the man supposed to buy him a drink? A. That was Ted.

'Q. Tomlinson? A. Yes.

'Q. Did you summon Buster Lake, for him to come over where Ted Tomlinson was at the bar? A. I said, I just called him, I said, 'Lake, there is a drink here for you.'

'Q. On this occasion did Mr. Tomlinson buy you a drink? A. Yes, he bought me a drink.

'Q. Do...