State v. Smith.

• Decision Date: 11 January 1927
• Docket Number: No. 3063.,3063.
• Citation: 252 P. 1003,32 N.M. 191
• Parties: STATEv.SMITH.
• Court: New Mexico Supreme Court

32 N.M. 191

252 P. 1003

STATE

v.SMITH.

No. 3063.

Supreme Court of New Mexico.

Jan. 11, 1927.

Syllabus by the Court.

An indictment for forgery of a promissory note set forth in hæc verba, including the signature “A.,” need not allege that it purports to be A.'s signature.

An indictment for forgery, alleging, in the language of the statute, that the act was unlawfully, falsely, and feloniously done, sufficiently excludes authorization by the person whose act it purports to be.

Evidence examined, and held sufficient to withstand motion to direct verdict.

Error to refuse tendered instructions, correctly stating the law, not covered in the general charge, except in the abstract, and applying the law to defendant's theory of the facts which there is evidence to support.

Another forgery by the defendant is competent as bearing on intent to defraud, where he claims that the false instrument he is charged with making was the result of mistake. Evidence examined as to such other false instrument, and defendant held sufficiently connected with it to admit of its reception.

Where state seeks to prove forgery by circumstantial evidence, including the fact that others having opportunity did not do it, a defense witness, testifying on cross-examination that he cannot state whether the handwriting is that of one of the others having opportunity, may be impeached by showing that on a former occasion he had stated it was not the handwriting of such other person.

General intent to injure or defraud is sufficient for conviction of forgery, and intent to injure or defraud a particular person need not be alleged nor proved.

While the fact that no one was injured or defrauded is not a defense in forgery, the jury should be permitted to consider the fact as bearing on intent.

That the defendant, as vice president, indorsed the bank's name on a forged note, of which the bank was payee, and rediscounted it or used it as collateral, is a circumstance to be considered by the jury, with others, if any, and given such weight as the jury may think it entitled to.

Additional Syllabus by Editorial Staff.

Crime of “forgery” consists in making false instrument with intent to defraud.

Appeal from District Court, Quay County; Hatch, Judge.

Ben Smith was convicted of forgery, and he appeals. Reversed and remanded, with direction.

Witness testifying on cross-examination he could not state whether handwriting was that of other than defendant having opportunity to sign note may be impeached by showing contrary statement on former occasion.

G. L. Reese, of Roswell, Hall & McGhee, of Clovis, Geo. L. Reese, Jr., of Roswell, and J. L. Briscoe, of Tucumcari, for appellant.

J. W. Armstrong, Atty. Gen., and J. N. Bujac, Asst. Atty. Gen., for the State.

WATSON, J.

Ben Smith was convicted of the forgery of a promissory note in the sum of $393.70, dated January 5, 1924, payable two months after date to Security State Bank of Portales, of which Smith was vice president and active manager, and purporting to bear the signature of Jap Post. This instrument was introduced in evidence as Exhibit 2, and will be hereinafter referred to in that manner.

From the testimony of Jap Post, the prosecuting witness, the jury might have believed: That Post had executed to the bank, and it held, four notes, namely: A $50 note, dated August 11, 1923, due in three months; a $102.50 note dated August 13, 1923, due in three months; a $40.50 note, dated October 8, 1923, due in one month; and a $41.00 note, dated December 29, 1923, due in one month. That from time to time, as these notes matured, Post was notified thereof by the bank, and told appellant that he would pay as soon as he could and would renew the notes if that was desired, and that appellant replied, “That is all right, Jap.” That about 10 days prior to March 3, 1923, Post called at the bank and inquired of appellant about his notes, and was told by appellant that they were in the Federal Reserve Bank and would be back about the first of March. That on March 3 he called at the bank and told appellant that he was ready to settle his notes, and asked if they had been returned. That appellant said: “I don't know, Jap; I will go see.” That appellant and Post went together to the note case, from which appellant raised certain papers to such an extent that Post was enabled to see Exhibit 2, appellant saying, “Jap, your notes are not here; here are the stubs,” dropping the papers back into the note case. That Post then left the bank and waited outside until he saw appellant leave, when he returned to the bank and inquired of C. R. Young, an employee of the bank, about the notes. That Young proceeded to the note case and took therefrom the papers which appellant referred to as “stubs,” which included Exhibit 2, folded and attached to which were the genuine notes above mentioned, which were introduced in evidence together as Exhibit 1, and another note introduced as Exhibit 3 for $194.35, dated December 11, 1923, payable one month after date to said bank and purporting to bear the signature of Post, but which Post denied having signed. That Post thereupon denied having signed Exhibits 2 and 3. That during the ensuing discussion appellant returned to the bank, whereupon Young said to him, “Jap's denying two of these notes.” That appellant insisted that Post had signed them, and, upon Post's again denying the signatures, said, “The books will show,” went to the books, and, after inspecting them, said that Exhibit 3 was to take care of three little notes, said something about Exhibit 2, and then turned to Young and said: “Those are not Jap's notes; go ahead and settle with him.” That thereupon Young and Post effected a settlement by Post giving to the bank his note for some $251 and receiving from Young the six notes which have been described. That some time after the closing of the bank, which occurred on March 31, 1924, appellant came out to Post's place of business, situated some miles from Portales, and said that he had heard that Post had been claiming that his name had been forged to some notes, and that he had come out to see about it. That he had a record of the transaction, and that if he could see the notes he could make an explanation of it. That Post refused to let him see the notes, and that appellant showed him no record, simply explaining that it was a mistake.

Exhibits 2 and 3 showed, by the indorsements which they bore, identified and explained, that they had been either discounted or used as collateral at the Federal Reserve Bank. Above the Federal Reserve indorsement on Exhibit 2, there was indorsed “Security State Bank, Portales, New Mexico, by Ben Smith, Vice Pres.,” and, on Exhibit 3, “Security State Bank, Portales, New Mexico, by M. B. Jones, Cashier.” The state further showed by opinion evidence that Exhibits 2 and 3 were made by the same hand, but not by the same hand that made the four notes constituting Exhibit 1, and that the signatures on Exhibits 2 and 3 were an attempt to imitate those on Exhibit 1. J. M. Honea, Jr., C. R. Young, employees, and M. B. Jones, cashier of the bank, testified that they did not write the signatures on Exhibit 2.

Appellant denied having made Exhibit 2 or 3, or having written Post's purported signature thereto. Witnesses familiar with appellant's handwriting gave their opinion that the purported signatures to Exhibits 2 and 3 were not in his hand. C. R. Young testified that on January 5, 1924, he was in the employ of the bank and in direct charge of the note case, under the general supervision of the appellant, and that among his duties was the making up of offerings of rediscounts to the Federal Reserve Bank; that these offerings consisted usually of a number of notes, and that it was the custom to get them together and prepare the bank's indorsement on the typewriter, except for the signature of appellant, as vice president, or of Mr. Jones, as cashier, one of them merely signing his name and returning the notes to him; that on that day, in making up such offering, he discovered that three of the genuine Post notes were past-due and not available for rediscount; that, knowing the custom of the bank to keep on hand notes signed in blank by borrowers, to be used by the bank for renewing paper and under other circumstances, he went to the file where such were kept and found a blank note, apparently signed by Jap Post; that Exhibit 3 was with the three notes mentioned, and failing to notice that the same was evidently a renewal of said three, he filled out the blank for an amount equal to the sum of said three notes, of Exhibit 3, and of the accrued interest thereon, the paper thus produced being Exhibit 2.

This is perhaps a sufficient statement of the evidence in the case to permit consideration of the points raised.

[1] Objections are made, first, to the sufficiency of the indictment. It is urged that it is insufficient, in that it fails to allege that the signature on Exhibit 2 purports to be that of Jap Post. The alleged false instrument having been set forth in full, we think there is no merit in this contention. Edwards v. State, 53 Tex. Cr. R. 50, 108 S. W. 675, 126 Am. St. Rep. 767, is quite different. In that case additional allegations were necessary because it chanced that the defendant and the person whose signature he forged bore the same name.

[2] It is also urged that the indictment should have alleged that the note was made without Post's authority. The indictment follows the language of the statute. Code 1915, § 1590. The allegation that the act was unlawfully, falsely, and feloniously done, sufficiently excludes authorization, just as, in State v. Probert, 19 N. M. 13, 140 P. 1108, an allegation of fraudulent embezzlement and conversion included, by necessary intendment, an intent to defraud. Generally as to the sufficiency of an indictment following the language of the statute, see State v. Alva, 18 N. M. 143, 134 P. 209; ...