State v. Segar

• Decision Date: 22 July 1921
• Citation: 96 Conn. 428,114 A. 389
• Court: Connecticut Supreme Court
• Parties: STATE v. SEGAR.

114 A. 389

96 Conn. 428

STATE v. SEGAR.

Supreme Court of Errors of Connecticut.

July 22, 1921

Appeal from Superior Court, Middlesex County; Howard J. Curtis Judge.

Information against William H. Segar for uttering and publishing certain forged instruments, to wit, bank checks. The accused was found guilty and sentenced to imprisonment by the court, from which judgment the defendant appealed. Error.

The post litem motam rule does not apply to contradictory statements made out of court and offered for the purpose simply of attacking the credit of the witness, but applies merely in those cases in which by a modification of the hearsay rule certain kinds of hearsay may be introduced as evidential of the truth of facts stated, as in cases of pedigree, ancient rights, common fame, dying declarations and others.

William A. King and Samuel B. Harvey, both of Willimantic, for appellant.

Arnon A. Alling, of New Haven, Sp. State's Atty., for the State.

GAGER J.

The accused, Segar, was tried and convicted in the criminal superior court for Middlesex county upon an information in 10 counts charging him with uttering or publishing 10 checks for differing amounts, to each of which the name of George T Cavanagh was falsely signed. All of the checks were of the ordinary form of bank checks, and were drawn on the Easthampton Bank & Trust Company, located in Easthampton, in Middlesex county, and the information alleged that such uttering or publishing was done at Easthampton, in Middlesex county, with the intent to defraud the Bank & Trust Company.

Section 6628 of the Statutes provides in part that-

" Every person charged with any offense shall be tried in the county wherein it shall have been committed, except when it is otherwise provided."

There is no special provision relating to the offense of uttering or publishing forged instruments.

The first ground of appeal is that upon the admitted facts the superior court for Middlesex county had no jurisdiction over the offense charged, but that the superior court for Windham county alone had jurisdiction. The question is presented to us through the refusal of the court to charge as requested and through the charge of the court as given. There was no dispute upon the essential facts with reference to the uttering which are clearly stated in the charge as given. There is no substantial difference between the charge requested and the charge as given as to the facts to be found. The court charged as follows, to wit:

" There is, I understand, no controversy that the accused cashed the checks, Exhibits 1 to 10, inclusive, in Willimantic, and that they came, in due course, through other banks to the Easthampton Bank & Trust Company, in this county, and were there paid. If you find that it [the state] proved that the accused used these checks at Willimantic in exchange for cash or goods with the intent that they should, in due course, be presented to the Easthampton Bank & Trust Company for payment, and that they were so presented, such facts would constitute an uttering by the accused of such checks as true within this county. The accused, as I recall, does not dispute these facts."

For certainty we state the request to charge, as follows:

" If the jury find that the checks set forth in the information were offered by the accused in Windham county to any person and accepted by such person in payment for goods or money obtained from such person to whom the checks were so offered and by whom they were so accepted, and further find that the checks passed into the hands of such persons who accepted such checks and indorsed the same, and that such persons thereupon indorsed such checks and deposited them in a bank in Windham country to their own credit, and that the accused no longer had any control over the further disposition of said checks, then the offense of uttering said checks was committed in Windham county by the accused, and the superior court in and for Middlesex county has no jurisdiction over said offense, or in the subject-matter thereof."

Was the use of these checks by the accused as stated at Willimantic in Windham county an uttering or publishing in Middlesex county, as the court informed the jury? The offense charged was not forgery, but uttering or publishing the forged instruments. The place of the forgery is for present purposes therefore immaterial; for the crime charged is solely the uttering or publishing of the forged check. To utter is to offer. Bishop's Statutory Crimes, § 306, says that in forgery " it means to offer by some overt act, as one who offers a forged instrument intending it shall be received as good utters it whether accepted or not." To the same effect is the definition in Bouvier's Law Dictionary, in the Standard Dictionary, and in others. See, also, Clark's Criminal Law, § 414. The facts in this case are so simple and conclusive that no refinements of definition or of analysis are required. From the finding it appears that on or about the dates mentioned in the information the defendant offered the checks in the town and county of Windham to sundry persons in said town with whom he had been transacting business; that said checks were severally accepted by the persons to whom offered in the town of Windham, and the defendant received for each of said checks money or goods to the amount of the face thereof; that each of said checks was indorsed by the defendant, delivered to the person to whom indorsed in Windham, and deposited by the indorsee in his bank in Windham, and the persons receiving said checks received from said bank money or credit to the amount of the face of the check so indorsed; that said bank or banks in the regular course of the banking business thereupon forwarded said checks to their respective banking correspondents and in due course each of said checks reached said Easthampton Bank & Trust Company at Easthampton, in the County of Middlesex, and each of said checks was there honored and paid by said Easthampton Bank & Trust Company, and the paying bank believed at the time that the maker's signature, " George T. Cavanagh," was the genuine handwriting of George T. Cavanagh. This is only a more extended statement in the finding of what the court condensed in its charge to the jury. It is too plain for discussion that this conduct was, within any accepted definition, an uttering or publishing, and even more, for it was a successful offer resulting in an actual delivery of the forged instruments to others for cash and goods whereby the accused lost all power and control over the forged documents and sent them on their way for collection through other banks in the usual course of business. Indeed, it is not directly claimed by the state that the utterance and publication were not complete in Windham county, but it says any other rule than to lay the offense in Middlesex county, as done by the trial court, would invite failure in the criminal law. We do not see exactly how this would result. This very case could as easily have been tried in Windham county as in Middlesex. It is desirable that the jurisdiction of criminal offenses be made distinct and certain. For offenses against the United States this is provided for by the Sixth Amendment, which requires that the trial shall be " by an impartial jury of the state and district wherein the crime shall have been committed." Our provision is by the statute above quoted. In this case all the facts constituting the utterance clearly happened in Windham county.

The state supports its claim by reference to a class of cases in which the use of the mail or an innocent messenger is necessary to make an utterance. In re Palliser, 136 U.S. 256, 10 Sup.Ct. 1034, 34 L.Ed. 514, is one of these cases. Palliser in New York addressed a letter to a postmaster in Connecticut, construed to be a bribe for the sale of postage stamps. It was held that, whether an offense was committed in New York, where the letter was mailed, or not, an offense was committed in Connecticut, and that the District Court of Connecticut had jurisdiction. In State v. Hudson, 13 Mont. 112, 32 P. 413, 19 L.R.A. 775, also a mail case, the accused was tried and convicted in Gallatin county. The proof was that in Gallatin county the accused mailed a letter to the Singer Manufacturing Company in Silver Bow county containing a forged instrument by which it was intended to defraud the Singer Company, and this letter was received by the Singer Company at Butte, in Silver Bow county. The judgment was reversed because the instrument was uttered in Silver Bow county, where the letter was received. The opinion in the Hudson Case was based upon the opinion of Judge Cowen in People v. Rathbum, a case very frequently cited, and found in 21 Wend. (N. Y.) 509. This again was a mail case, where, after an elaborate examination of the authorities, it was held that the venue was in the county where the letter containing the forged instrument was received, and not in the county where it was mailed. The case of Norris v. State, 25 Ohio.St. 217, 18 Am.Rep. 291, and State v. Lichliter, 95 Mo. 402, 8 S.W. 720, are both mail transactions, and jurisdiction was held to be where the letters were received. These and other cases of similar import are all based upon the theory that to constitute an uttering or publishing there must be an offering or negotiation, that this requires two parties, a party acting and one acted upon, and that in the case of a mailing or an innocent agent there can be no such offer or negotiation until the forgery has reached the person proposed to be acted upon, and it is there and then only that the uttering and publishing becomes a completed act, and that the offense is committed. See the rather elaborate discussion in ...