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People v. Loew

8 N.Y. Crim. 370 Court Supreme Court—General Term—First Department. English

Delivered by Barrett, J.

Contents

Majority

p. 370
Supreme Court—General Term—First Department.
June, 1892.
PEOPLE v. LOEW.

Headnote

Forgery—Evidence of Authority to Indorse.
Upon a trial for forgery by indorsing the name of the payee of a check, evidence was given by defendant that he had authority so to do from the husband of the payee, who transacted all her business, including the signing of checks and the receipting of bills. The husband having contradicted this testimony, the court refused to allow a witness to testify, on behalf of defendant, that the witness had heard a conversation between defendant and the husband wherein the latter authorized defendant to make the indorsement.—Held, error.
It was also error on such a trial to refuse to permit defendant to show by cross-examination of the payee of the check that the husband had, in addition to the written power of attorney which he held from his wife, the payee, other and verbal authority ■ given at some other time.
Upon such a trial it was also error to refuse to charge the specific proposition, as requested by defendant, “that if the jury believe that Mr. ShulhofE (the husband) directed or told Mr. Loew to sign that check in the name of his wife, and Loew in good faith believed that ShulhofE had the authority, they should find the defendant not guilty.” The point was hardly covered by a general statement of the judge that the jury' “must find affirmatively that, when Loew put the indorsement on the check, he did so for the purpose of cheating and defrauding.”
Appeal by defendant, William N. Loew, from a judgment entered in the court of general sessions of the peace of the city and county of New York, of 26th June,
p. 371
1888, Hon. Hutüs B. Cowing presiding, upon a conviction of defendant of forgery in the second degree.
A portion of the judge’s charge was as follows :
“ Before you can convict the defendant you must find that he falsely and fraudulently forged the name of C. Schulhoff, the payee of this check, on the back of it, and that he did so without having any legal authority and knowing that he had no authority to do so, and that he did it with the intention of cheating and defrauding.
“ Did he intend to cheat and defraud ? The presumption is that when a man falsely and fraudulently forges another man’s name on the check, he intends to cheat and defraud. You have a right to infer, if the evidence justifies you, that he intended to defraud the payee, or you have a right to infer, if the evidence justifies you, that he intended to defraud the bank where the check was made payable; but you must find that he intended to defraud somebody, either the payee or the bank. So far as fraud itself is concerned, if he had no authority to indorse this check, then he had no right to draw this money from the bank. ■ If the bank paid this money on a forged indorsement they could be compelled to pay it over again. Therefore the people claim that the evidence shows that he intended to defraud the bank, but it will be for you to determine whom he intended to defraud.
“If, after examining all the testimony in the case, you have a reasonable doubt whether he indorsed this check with the intention to defraud, or whether or not he indorsed it without having any authorization, you will give him the benefit of the doubt and acquit him. But if you come to the conclusion that without authority he indorsed this check with the payee’s name and did so with the intention of defrauding, then he is guilty. The district attorney claims that the manner of the indorsement is some evidence as to what was his intent. Defendant
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admits that the name ‘ C. Schulhoff ’ on the back of the check and his own name differ in the handwriting; and the people claim that the character of the ink, its color, the shading of the lines and everything goes to show that he indorsed the name of C. Schulhoff in what appears to be a lady’s handwriting, for the purpose of having the bank infer that it was the signature of the payee of this check. But whatever inference should be-drawn from the circumstances, it is a matter for you ta determine. If you have a reasonable doubt as to the guilt of this defendant of the crime charged against him in the indictment, give him the benefit of it and acquit him ; but if, taking the whole evidence together, you believe that he indorsed the payee’s name upon this check falsely and fraudulently and without any authority or right to do so, and did so with the intention of cheating and defrauding, then it is your bounden duty to convict him.”
Mr. Johnson. “ I ask your honor to charge this : that if the jury believe that Mr. Schulhoff directed or told Mr. Loew to sign that check in the name of his wife, and Loew in good faith believed that Schulhoff had the authority, they should find the defendant not guilty.”
The Coubt. “ They must find affirmatively that when he put the indorsement on the check he did so for the purpose of cheating and defrauding.”
Exception.
Mr. Johnson. “ I ask your honor to charge the jury that if they are in doubt whether to believe Loew’s statement that he acted under Schulhoff’s authority and did so in good faith, that they should find a verdict of not guilty.”
The Court. “ Do you claim that there is any evidence in the case that Mr. Schulhoff had any authority to delegate his power ? ”
Mr. Johnson. “ Mr. Loew stated that he believed Mr. Schulhoff had authority.”
p. 373
The Court. “ I will submit the case to the jury: if they come to the conclusion that this defendant acted in good faith and from honest motives, they will acquit him ; but if they come to the conclusion that he acted dishonestly and put this name on the check for the purpose of cheating and defrauding, well knowing that he had no right to do it, then he is undoubtedly guilty of the crime of forgery in the second degree.”
Mr. Johnson. “ I would like it put in this form : If the jury believe that Mr. Loew in good faith believed that he had authority from Mr. Schulhof to sign that check, and that he was authorized to sign that check, they should find him not guilty.”
The Court. “ Except as I have charged I decline to charge.”
Exception.
Albert Bach, for defendant appellant.
De Lancey Nicoll, district attorney ; Henry B. B. Stapler, assisant, for the people, respondents.

The indictment charged the defendant with the crime of forgery in the second degree, in that on the 14th day of June, 1887, at the city of New York, he feloniously forged the name of C. Schulhoff on the back of a check for $1750 on the National Shoe and Leather Bank; 0. Schulhoff being the payee of the check, and the defendant having received the check as her attorney, in settlement of certain claims against an insurance company. Upon the trial, 0. Schulhoff, who was Mrs. Olara Schulhoff, and the wife of one Bichard L. Schulhoff, testified that she never authorized Loew to put her name on the back of the check, and that she never received any of its proceeds. She admitted that her husband acted for her in all business transactions, signing checks and receipting bills, and that in no instance did she sign her

p. 374
name. The defense was that the check was indorsed by the authority of the husband, and Loew testified to such authority. This, again, was denied by Mr. Schulhoff, and the question of veracity was fairly submitted to the jury. The difficulty, however, is that the learned court ruled out evidence which was competent upon this latter issue. If it was competent to show authority from the husband, and proper to permit its denial, it was equally competent to corroborate either side on that head. Yet, after permitting Mr. Schulhoff to testify that he never knew of the existence of the' check at the time it was indorsed and collected,—never, in fact, spoke to Loew about it, and consequently never authorized its indorsement,—the learned court refused to permit Loew to prove by a witness named David Eeiss that he (Eeiss) heard a conversation between Schulhoff and Loew, in the latter’s office, in which it was “ understood and agreed that Loew should receive the money arising .from the settlement of the insurance, and that, when he received the check, he [Lóew] might indorse it in Schulhoff’s wife’s name.” Clearly this was error, and as the issue of the husband’s authority was submitted to the jury the error must have prejudiced the defendant. We think, too, the circumstances of the case were such that this issue was material, and that, if Mr. Schulhoff actually did authorize Loew to indorse Ms wife’s name upon the check, he either had authority to permit this, or at least such apparent authority as to warrant the court in submitting the bonafides of the act to the jury.

The defendant was not guilty if he had fair ground to consider that he had authority to indorse the check, and upon that head he had a right to show the circumstances under which the act was done. It was error, also, to hold the defendant to the strict terms of the written power of attorney which Mrs. Schulhoff gave to her husband. She might have given her husband other and verbal authority at any time, and the defendant

p. 375
should have been permitted to cross-examine her as to any such verbal authority, or as to any previous declarations which she may have made with regard thereto. It was error to exclude this cross-examination upon the ground of the existence of a written authority.

It was also error to decline to charge, as requested, “ that if the jury believe that Mr. Schulhoff directed or told Mr. Loew to sign that check in the name of his wife, and Loew in good faith believed that Schulhoff had the authority, they should find the defendant not guilty.” We think the proposition was correct, and that the defendant had a right to its submission in this concrete form. The point was hardly covered by a general statement that the jury “ must find affirmatively that, when Loew put the indorsement on the check, he did so for the purpose of cheating and defrauding.” This statement was made in response to the request to charge the specific proposition, and the jury may well have inferred that the intent to cheat and defraud was sufficient even if Loew in good faith believed that Mr. Schulhoff had authority to direct him to indorse the check in Mrs. Schulhoff’s name, and in fact did so direct him. Tho judgment should be reversed, and a new trial granted.

Van Brunt, P.J., and O’Brien, J., concur.