State v. Wheeler

• Decision Date: 16 December 1890
• Citation: 20 Or. 192,25 P. 394
• Parties: STATE v. WHEELER.
• Court: Oregon Supreme Court

25 P. 394

20 Or. 192

STATE v. WHEELER.

Supreme Court of Oregon

December 16, 1890

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

(Syllabus by the Court.)

The execution of a promissory note in the name of a fictitious person, or under an assumed name, with an intent to defraud is forgery.

L Baker, for appellant.

T.A. Stephens, Dist.Atty., for the State.

BEAN J.

The defendant was indicted, tried, and convicted of the crime of forgery, from which judgment he appeals. The indictment charges that on June 28, 1890, the defendant made and forged a promissory note for $85.50, payable to John P Fidock, or order, due 30 days after date, by then and there signing the name of John Williams to said note, with an intent to defraud and injure J.T. Milner. At the trial in the court below, after the evidence for the state was closed defendant's counsel moved the court that the jury be instructed to render a verdict of not guilty, upon the ground that the evidence failed to prove the crime charged. The refusal of the court to give the instructions is the only error claimed on this appeal. An examination of this question renders it necessary to briefly state the evidence as given on the trial, which was as follows: On June 28, 1890, the defendant called at the office of J.T. Milner, in the city of Portland, and represented to Mr. Milner that his name was John Williams, and applied for a loan of $85.50, offering to secure the same by a chattel mortgage on a team of horses. He drove the team up in front of the office, and Mr. Milner looked at them, and agreed to make the loan. The note was drawn up by Milner, and the defendant signed the name of John Williams thereto, and Milner paid him the $85.50 in money. When the note became due, the defendant did not call to pay it, and Milner wrote two letters to John Williams, calling on him to pay the note, one of which he directed to Albina. A Mr. John Williams, of Albina, responded to the letter sent him, but denied ever signing the note. That no part of the note has been paid, nor has defendant ever called at Milner's office, where the note was to be paid. That defendant was a stranger to Milner, and he supposed his true name was John Williams, and would not have made the loan had he known otherwise. That defendant's true name is Edward Wheeler, as stated in the indictment, and not John Williams. The inquiry here is whether, under this state of facts, the defendant was properly convicted of the crime of forgery. "Forgery" is defined by Blackstone to be "the fraudulent making or alteration of a writing to the prejudice of another's rights." 4 Bl.Comm. 247. WILLES, J., in Reg. v. Epps, 4 Fost & F. 81, says: " 'Forgery' consists in drawing an instrument in such a manner as to represent fraudulently that it is a true and genuine document really in existence as it appears on the face of it, when in fact there is no such genuine document really in existence as it appears on the face of it to be." In State v. Wooderd, 20 Iowa, 541, DILLON, J., says: "The making or alteration of any writing with a fraudulent intent, whereby another may be prejudiced, is forgery." Mr. Bishop says: " 'Forgery' is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." 2 Bish.Crim.Law, § 523. Section 1808, Hill's Code, provides that "if any person shall, with intent to injure or defraud any one, falsely make, alter, forge, or counterfeit *** any bill of exchange, promissory note, or evidence of debt, *** shall be punished in the penitentiary not less than 2 nor more than 20 years." From the definitions of "forgery" as above stated, as well as from the statute, it will be seen that the essential elements of the crime are (1) a false making of some instrument in writing; (2) a fraudulent intent; (3) an instrument apparently capable of effecting a fraud. That the first and third ingredients above stated appear in this case cannot be doubted. The note executed by defendant under the name of John Williams is certainly a false note. It is not what it purports on its face to be; is false, not genuine; fictitious, not a true writing. The falsity of the note consists in its purporting to be the note of some party other than the one actually making the signature. It purports to be a note of one John Williams, while the signature was made by the defendant, and, although the defendant represented that his name was John Williams, if he assumed that name for the purpose of defrauding, and under such a name executed the promissory note in this case with an intent to defraud Milner, such an act would constitute forgery. 2 Bish.Crim.Law, § 583. The law is well settled that the signing of a fictitious name to an instrument with a fraudulent intent constitutes forgery. 8 Amer. & Eng.Enc.Law, 457, and note; People v. Brown, 72 N.Y. 571; State v. Hahn, 38 La.Ann. 169; Luttrell v. State, 1 S.W.Rep. 886; 2 Whart.Crim.Law, § 1424; 2 Russ. Crimes, 733. As was said in Com. v. Costello, 120 Mass. 370: "The essential element of forgery consists in the intent when making the signature, or procuring it to be made, to pass it off fraudulently as the signature of another party than the one who actually makes it. If this intent thus to personate another exists, the instrument is still a forgery, even if the name affixed is actually the same name with that borne by the party who signs it. So there may be forgery by the use of a fictitious name, as well as by the use of a person's own...