United States v. Sonnenberg, 9149

• Decision Date: 18 December 1946
• Docket Number: No. 9149,9150.,9149
• Citation: 158 F.2d 911
• Parties: UNITED STATES v. SONNENBERG et al.
• Court: U.S. Court of Appeals — Third Circuit

158 F.2d 911 (1946)

UNITED STATES v. SONNENBERG et al.

Nos. 9149, 9150.

Circuit Court of Appeals, Third Circuit.

Argued November 19, 1946.

Decided December 18, 1946.

Thomas D. McBride, of Philadelphia, Pa. (Samuel P. Orlando, of Camden, N. J., on the brief), for appellants.

Grover C. Richman, Jr., Asst. U. S. Atty., of Camden, N. J. (Edgar H. Rossbach, of Newark, N. J., U. S. Atty., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN, and KALODNER, Circuit Judges.

GOODRICH, Circuit Judge.

The defendants, who are husband and wife, were convicted in the District Court for the District of New Jersey, of the crime of forgery as described in Section 29 of the Criminal Code of the United States, under the Section headed "Making, forging, counterfeiting, or altering deeds or powers of attorney; transmitting such papers." 18 U.S.C.A. § 73. Alleging that the evidence produced against them, taken in the most favorable light for the prosecution, does not warrant their conviction, they appeal to this Court and ask for judgment of acquittal as provided for in Federal Rules of Criminal Procedure for the District Courts of the United States, Rule 29, 18 U.S.C.A. following section 687.

The facts which present the legal problem involved are as follows: The defendants owned and operated a drug store in Camden, New Jersey. They paid to holders of Series E War Savings Bonds, which the holders had not kept for the sixty day period prior to the time they could be redeemed, amounts less than the redemption value. At the time defendants advanced the money the then holder of the bond made manual delivery thereof to the defendants and signed his name upon the attached "Request for Payment" form. The defendants then added their own business address underneath the name of the payee. They held the bonds until the sixty day period had expired and then presented them through the Federal Reserve Bank for redemption. The large number of bonds coming into the Federal Reserve for redemption and bearing the defendants' address caused the officers in that institution to direct that the checks to the various payees, for the redemption figure, be held in the Camden Post Office and a notice sent to the payees requiring a personal call and signed receipt before delivery of the envelopes containing the checks would be made. In the cases here involved one of the defendants, Joseph Sonnenberg, took three payees with him to the Post Office in Camden. The payee then stepped to the window, asked for the letter being held for him, received it, signed the pink receipt slip and gave it back to the Post Office employee. He immediately, in each instance, then handed the window envelope containing the check, unopened, to the defendant and received from the defendant $1.00 "for his trouble". The defendant then endorsed the name of the payee on the back of the check and deposited it in his bank for collection in the regular way.

It clearly appears from the testimony of the Government witnesses, who were the payees in the bonds involved in the transactions, that they intended the sale of those bonds to the defendants at the time the money was first paid by the defendants to them. In no case was there any statement in express words on the part of the payees giving either of the defendants authorization to sign the payees' names on the back of the checks. One other fact, however, in connection with this endorsement should be mentioned. At the time of the purchase of the bond by the defendants, the defendant, Lena Sonnenberg, procured from each of the sellers his name and address written by him upon a slip of paper. Over this signature she subsequently wrote in the words: "I give Mrs. Sonnenberg permission to sign my check received for bond # stating the exact number for each specific bond." Stripped of the inevitable decorative verbiage which accompanies every attempt to develop a story from witnesses not gifted with the ability of precise articulation the above statement comprises the sum total of the relevant facts.

Does the above set of facts make a case on which the defendants may be convicted for violation of Section 29 of the Criminal Code? The portion of that Section relevant to the question can be stated as follows: "Whoever shall * * * forge * * * or willingly aid, or assist in the * * * forging * * * of any * * * order, * * * or other writing, for the purpose of obtaining or receiving * * * from the United States, * * * any sum of money; * * * shall be fined not more than $1,000 and imprisoned not more than ten years."¹ The Supreme Court has said that this language announcing a statutory forgery imports an intent to defraud the United States.² The indictment in this case charges a forgery with intent to defraud the United States by the act of the defendant, Joseph Sonnenberg, in writing the name of the payee on the back of the checks received from the various payees in the instances described above "without the express authority and consent of the said payee."

To this the defendants make two answers. One of them is the fact that authority was given in express words when Lena Sonnenberg filled in the authorization described above on the sheets of paper containing the signatures of the payees after the latter gave Mrs. Sonnenberg the sheets with their respective names and addresses written upon them. We think that this argument is not well taken. It is true that by the terms of the Negotiable Instruments Law, which is in force in every State in this country, a holder of an incomplete negotiable instrument has authority prima facie to fill up the blanks.³ But that authority is only prima facie authority even in case of a document which purports to be a negotiable instrument. Furthermore, the rule does not apply to one who simply puts his name on a blank sheet of paper. In such an instance there is no presumption that the parties have anything to do with negotiable instruments, authorization to fill up blanks, or anything of the kind. It is quite clear that if one without authority writes in a negotiable instrument over another's signature on a blank sheet of paper that the one whose name appears is not bound thereby even if the document should get into the hands of a bona fide purchaser.⁴ There is nothing here in the evidence to show that any actual authorization was given. On the contrary these payees testified that Mrs. Sonnenberg requested their names and addresses for the mere purpose of identification and location if necessary. We do not find, therefore, in the papers filled in by Mrs. Sonnenberg the necessary authority for the Sonnenbergs, or either of them, to endorse the Government checks issued to the payees of the bonds.

But authority to do an act for another which will bind that other does not necessarily come from express words on the part of the person to be bound. Authorization may come as a necessary implication from the facts. The defendants argue here that they did have this authority from the facts of the transactions relating to the sale of the bonds and to the subsequent manual delivery of the checks issued in payment therefor to the defendant, Joseph Sonnenberg. This argument has substance. As already stated, the evidence is undisputed that these bondholders made an unconditional sale to the defendants of whatever rights they had in the bonds. It is true that the bonds were not...