People v. Dickie

The def endant was convicted of the crime of forgery in the second degree. The gist of the offense was the unauthorized filling in of a blank check entrusted to him by his employers. The material facts as testified to by the complainant, Oscar M. Crego, were these:

Dickie was the cashier of the firm of Russell Crego & Son. 'As such cashier, he had been for two or three years entrusted with twelve checks, signed by the firm and payable to his own order, but undated and blank as to amount. When one or more of these checks was used its place was supplied, so that Dickie always had twelve such checks on hand for immediate use. These twelve checks were detached from the check book and were kept by Dickie.in the money drawer. Dickie’s authority with regard to the use of these checks was peculiar. He was authorized always to pay the drafts of an agent of the firm at Elgin, Illinois, also those of a'party in Chautauqua county. He was also authorized to pay the freight bills of the different transportation companies in this city. For these payments he was authorized to use the checks in question without any special direction from the firm. For all other payments, however, he was limited to a special direction. He was not authorized to use any of these checks for the payment of current expenses or for the purpose of obtaining cash for current expenses or for •the payment or liquidation of any claims. When money was required for the payment of employees or other cash items, the custom was, when the money in the drawer was insufficient, for Dickie to.draw a special check for the requisite amount, payable to “W. F. Dickie, currency,” and bring it (still in the check book and attached to the stub) to Mr. Crego to be signed. The custom also was, when any one of the twelve checks was used to .pay drafts or other obligations of the firm, for Dickie to date such check, fill in the precise amount of the draft or other obligation, and then endorse it payable to the order of the creditor ‘of the firm.

The question is, was this a forgery of the cheek? The rule had long been well-settled in England that an unauthorized filling up of blanks in checks, notes, acceptances and such like instruments of a commercial character amounts to forgery. In Rex v. Hart, 7 Car. & P. 652, the prisoner was given an acceptance, blank as to amount, with authority to fill it up for £200. He filled it up for £500. This was held to be forgery, and upon the point being reversed the conviction was sustained by all the English judges. In Reg. v. Bateman, 1 Cox C. C. 186, it was said that where a check is given with a certain limited authority, the agent is confined strictly within the limits of that authority, and that if he fills in the check with a diff erent amount from that authorized, or if after the authority is at an end he fills it with any amount whatever, it is clearly forgery. The doctrine of Rex v. Hart was followed in Reg. v. Wilson, 2 Car. & Kir. 527. There the prisoner was authorized to fill in the amount due on a bill for £150 and interest, then to get the check cashed and pay the bill. Instead of doing this he filled in £250 and retained part of the proceeds, claiming that it was due him for salary. This was held to be forgery. Where the authority is general, a different rule prevails. Thus, in Beg. v. Bichardson, 2 Foster & Fin. 313, the clerk had authority to draw checks upon his employer’s bank, not only to the order of the creditors of the firm, but to his own order, for such sums as he deemed necessary to pay the cash disbursements of the business. Upon one occasion he drew a check to his own- order for £11 10s, the proceeds of which he appropriated. He was acquitted of forgery and put on trial for embezzlement, the learned judge observing that the prisoner “could not he convicted of forgery, inasmuch as, having a general authority to draw, he did not necessarily exceed his authority when he drew the check; and that the criminal act, if any, was the subsequent appropriation of it.”

In the very able brief which Mr. Cl-oss-on submits in behalf of the defendant he makes this claim:

“It is not necessary to argue that forgery can only be committed with a pen, or some similar instrument; and that, unless the prosecution can point to some writing on this check and say that that particular writing in some way added to or altered the legal effect of .this check, and that the words or figures so written were words or figures Dickie’s pen had no right to put there, Dickie did not forge the check, whatever he did with the proceeds.”

We agree with this view of the case, but we think the prosecution had a right to go to the jury upon the proposition that the words “two hundred and twenty-five dollars” were words which Dickie’s pen had no right to put in this particular check. There was no draft or bill before him for that amount at the time 'he inserted those words. Their insertion was wholly outside

The principle of the English cases seems to have been generally followed in this country. Wharton Criminal Law, (8th ed.),. §§ 671, 672; People v. Graham, 6 Park. 135; Wilson v. Commissioners, 70 Ill. 46 ; State v. Maxwell, 47 Iowa, 454 ; Biles v. Com., 32 Pa. State, 529; State v. Kroeger, 47 Mo. 552 ; State v. Flanders, 38 N. H. 324 . The only cases where a doubt is expressed a.s to the rule are Putnam v. Sullivan, 4 Mass. 45 ; and Van Duzer v. Howe, 21 N. Y. 531 . These, however, were civil actions upon paper which was fraudulently used, or in which the blank amount was fraudulently increased beyond the sum authorized. They were properly decided upon the estoppel principle, and the doubts which were expressed upon the point in question proceeded upon the mistaken idea that if the paper was forged in the sense of the criminal law, it would be illogical in a civil action to hold the persons who signed it. But there is nothing

But we think there was error prejudicial to the defendant in permitting Mr. Crego upon his evidence in chief to testify to the discovery of shortage in Dickie’s accounts generally to the amount of about $2,775. This was doubtless admitted upon the question of fraudulent intent, but it had no just bearing upon that question. It simply tended to show that Dickie was a faithless cashier and that for an indefinite period he had been robbing his employers. But under this indictment the fraudulent intent was confined to the particular forgery charged, and that depended not at all upon Dickie’s past misconduct in other matters, but largely upon the purpose with which he obtained the $225 in question.

1 The methods resorted to by Dickie to procure those $225, the insertion of the word “currency” in the check, the fact that no entry of it appeared in the check book or in the cash book, that it was not used in whole or in part for the business, that it was not accounted for in the cash entries of the day when the money ¡was obtained, and his flight almost immediately after the transaction, were all admissible upon the question of intent. But past larcenies by means of false entries, or fraudulent misappropriation of other moneys entrusted to his keeping, were surely not admissible. The proof was not even of offenses of the same nature committed at the same time tending to show a general purpose to misappropriate the employer’s moneys by similar means. Indeed, this particular check seems to have been the only one which Dickie used contrary to his instruction. For the following question was put to Mr. Crego and the following answer given:

“Q. The question of the juror is, taking the check book and adding together all the checks and comparing them with the vouchers, including those that have not been returned, how does'

Other points are made by the appellant which we need not ■consider. But as the ease will probably be tried again we ought to say that the observation made by the learied judge to the defendant with regard to a certain book was one which was -likely to affect the minds of the jury. The observation was as follows:

“You know that you kept that book; you know perfectly well what yon kept it for; you know perfectly well what it represents, probably not absolutely and definitely; you could give such information if you meant to; there is no doubt in my mind.”

This was in effect a judicial expression against the candor of the defendant, which, in a balanced case, might turn the scale against him. Standing alone, and in view of all the facts in this case, we do not think it would be sufficient to justify the granting of a new trial, but it would certainly have been better had the observation been turned into a question and the defendant asked why, if he kept the book and was necessarily familiar with its contents, he could not give the information called for.

Upon the point secondly considered, however, the conviction and judgment should be reversed and a new trial granted.

It seem to me, from an examination of this record, that the defendant was convicted really because of a larceny, although indicted for forgery, and, as there must be a new trial, it may not be without profit to consider one point in the case. I think that the defendant’s story that he had authority to fill out the ■check in question, and that it is not true that the only authority to' fill out those checks wia-s to pay the bills of two consignees and those of transportation companies, is very strongly supported by the fact that the check for $100 has never appeared, and does not appear to have ever been used, and that the check for $225 in question was realy filled out for the purposes testified to by the defendant. The complaint admits that the necessary disbursements paid by the defendant on that day were greater than the amount of the $100 check, and the only money that he had to pay them with, so far as appears by the evidence, was the proceeds of the $225 check. It is true it

ANDREWS, J., concurs; VAN BRUNT, P. J., concurs in result.