People v. Graham — 6 Park. Crim. Rep. 135

Majority

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Superior Court of Buffalo. March General Term,

1868.

Masten, Clinton and Verplanck, Justices.

The People v. James Graham.

Headnote

Forgery may be committed, under the statute, as well by making a material alteration, erasure, insertion or addition to a true instrument, although only in a letter or figure, as by the entire false making of an instrument.

Where the agent of a foreign insurance company called “ The Traveler's Insurance Company,” held in his hands policies of insurance executed by the officers of the company, and which, by the terms thereof, insured the owner from date against personal injuries caused by accident, and which such agent was authorized to issue and give validity to, by stamping upon the face of the policy, in a blank left for that purpose, the words “ Gen'l R. R. Ticket office, J. Graham, Buffalo,” together with the date of the issue and such agent, on the láth day of November, 1866, with the intention to defraud such company, stamped on one of the policies in his hands the words, “ Gen’l R. R. ticket office, November 13,1866, J. Graham, Buffalo,” and delivered it to one Warner, for the purpose of having it enforced against said company as having been issued to one Hunt, who had been killed on a railroad on said 13th day of November, 1866, it was held that such agent was guilty of forgery.

Where, in an indictment for forgery,- it was averred that the instrument altered purported to be the act of another, to wit, of'“ The Traveler’s Insurance Company, of Hartford, Connecticut,” and that the intent was to defraud “ The Traveler’s Insurance Company, of Hartford, Connecticut, which was then and there a corporation duly organized,” &e., with no other averment of £he name of the corporation, it was held to be a sufficient description of the corporation named “ The Traveler’s Insurance Company,” and that the other words, viz: “of Hartford, Connecticut,” were to be taken not to be a part of the corporate name, but only a description of the place where the corporation, was located.

This case came before the general term, under the thirty-fifth section of the act authorizing the Superior Court at general term to review upon the indictment and a bill of exceptions the decisions of the trial term. (Laws 1854, p. 96; Laws 1857, p. 752.) ■ The indictment contained four counts.

The first count charged the prisoner with having, at the

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city of Buffalo, forged a certain instrument purporting to be the act of another, to wit, of the Travelers’ Insurance Company of Hartford, Connecticut, which said forged instrumend is in the words and figures following, to wit:

And that the prisoner forged said instrument “ with intent to defraud the Traveler’s Insurance Company, of Hartford, Connecticut, aforesaid, which was then and there a corporation duly organized and existing under and by virtue of the laws of State of Connecticut,” &c.

The third count charged the prisoner with having uttered as true, at the city of Buffalo, a certain false, forged and counterfeited instrument, purporting to be the act of an

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other, to wit, of the Traveler’s Insurance Company, then and there being a corporation organized under the laws of the State of Connecticut, which said false, forged and counterfeited instrument is in the same words and figures as the instrument which is in the first count of this indictment set forth, with the intent then and there to injure and defraud the Traveler’s Insurance Company aforesaid, he, the said James Graham, then and there knowing the said instrument to be false, forged and counterfeited,” &c.

The second count charged the prisoner with having forged the said instrument, and the fourth count charged the prisoner with having uttered the same with intent to defraud “ The Eailway Passenger’s Assurance Company.”

Upon the trial it appeared that there was at Hartford, in the State of Connecticut, a corporation created by the laws of said State, under the name of the Traveler’s Insurance Company, for the purpose of insuring persons against the accidental loss of life or personal injury sustained while traveling by public conveyance; that the prisoner was the agent of said corporation at the city of Buffalo, to issue policies, and for that purpose was entrusted with policies in the form of the instrument set out in the indictment, complete in every respect but the date; that when the prisoner issued policies he stamped upon the face of them, in a blank left for that purpose, “ Gen’l E. E. Ticket office, J. Graham, Buffalo,” together with the date of their issue; that, on the 13th day of November, 1866, one Thomas C. Hunt, in company with one Warner, took passage at Buffalo, on the Lake Shore railroad, for the west, and in the afternoon of that day an accident, near Erie, happened to the train in which they were traveling, by which the said Hunt was killed; that on the next day (November 14) the said Warner returned to Buffalo with the corpse of said Hunt; that the prisoner, conspiring with said Warner to defraud the said Traveler's Insurance Company, stamped upon one of said blank policies,

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in his hands as above stated, the words “Gen’l E. E. Ticket office, Nov. 13, 1866, J. Graham, Buffalo,” and delivered such policy to said Warner; that such policy was so stamped and delivered by the prisoner to said Warner in the city of Buffalo, on the 14th day of November, 1866, after said Warner had brought the corpse of said Hunt to Buffalo, and was dated back and delivered as aforesaid, that it might be enforced against the insurance company as a policy which had been duly issued to said Hunt before his death, insuring him against the accidental loss of life while traveling by public conveyance.

When the prosecution rested, and again when the proofs were closed, the prisoner’s counsel asked the court to-charge the jury to find a verdict of not guilty upon the indictment, upon the following grounds:

1. The prosecution had failed to prove that the prisoner had committed the forgery, as charged, in the indictment, or any forgery.

2, That the prosecution had failed to prove that there was any such corporation as “The Traveler’s Insurance Company, of Hartford, Connecticut.”

But .the court refused to charge as requested, and instructed the jury that the prisoner was guilty of forgery if he stamped the ticket on the 14th day of November, 1866, with the date of the 13th day of November, 1866, with intent to injure and defraud the said insurance company, and thereupon issued the same. To which refusals to charge, and to which charge and to each of them, the prisoner separately excepted.

J. Cook and A. P. Laning, for prisoner.

Lyman K. Bass (District Attorney), for people.

The questions presented for our consideration by the prisoner’s exceptions are:

First. Was the insertion by the prisoner, under the circumstances stated in the bill, of the words “ Gen’l JR. JR.

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Ticket office, Nov. 13, 1866, J. Graham,, Buffalo,” into the blank policy ticket, with intent to defraud, forgery within the statute?

Second. Is there a misnomer in the indictment of the corporation, which it is alleged the prisoner intended to defraud?

1. The statute enacts that “ every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall be, or shall purport to be created, increased, discharged or diminished, or by which any rights or property whatever shall be or purport to be transferred, conveyed, discharged, diminished, or in any manner affected, sháll be guilty of forgery.” (2 R. S., 673.)

Forgery may be committed under this statute either by entirely false making an instrument described by the statute, or by making a material alteration, erasure or insertion in, or addition to, a true instrument, although but in a letter or figure, or by misapplying a genuine signature as by writing over it in whole or in part an instrument for which it was never intended.

It is said in Bacon's Abridgment (title “Forgery." A), that “ the notion of forgery doth not so much consist in the counterfeiting of a man’s hand and seal, which may often be done innocently, but in the endeavoring to give appearance of truth to a mere deceit and falsity; and either to impose that upon the world as the solemn act of another which he is not privy to, or at least to make a man’s own act appear to have been done at a time when it was not done, and by force of such a falsity to give it an operation which in truth and justice it ought not to have.”

The putting into the policy ticket the words “ Nov. 13, 1866,” as its date, was the making of a material addition to the instrument. • By the terms of the instrument its date is made material, for it provides that “ This ticket will be

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good for three days, commencing at 12, noon, on day of date.” The day written in the instrument as the day of its date raises the presumption, at least as between the parties to it, that such day is the true date of the instrument and of its delivery, and is therefore material.

. It is quite plain that the alteration of the date of a promissory note or of a bill of exchange, payable a certain length of time after date, would be an alteration of the terms thereof in a material particular. It would either hasten or protract the day of payment. It is well settled that the alteration, malo animo, of the date of such instrument is forgery. (Master v. Miller, 4 T. R., 320; affirmed on error, 2 H. Black R., 140; Powell v. Divett, 15 East R., 29; Hinfore v. Bromley, 6 East R., 309; Chitty on Bills, 204; U. S. Bank v. Russell, 3 Yeates, 391 ; Miller v. Gilleland, 19 Penn, R., 119; Byles on Bills, 253; Rex v. Atkinson, 7 C. & P., 669; 32 E. C. L., 679; Coke's 3 Institute, 169.)

I am of the opinion that the whole matter that the prisoner stamped into the blank ticket was material as giving the appearance to the ticket of having ■ been regularly issued, and of being of binding force.

But it is said the prisoner was at the time the agent of the insurance company, and that his offense was at most a fraudulent use of a contract fully executed and entrusted to him. His agency was to effect insurance on living persons against accidental loss of life or personal injury while traveling by public conveyance, and to that end to fill up the blank policy tickets entrusted to him. He had no authority to do what the jury have found he did do. He acted mala fide and beyond what he knew to be the scope of his authority. With intent to defraud his principal he stamped the policy ticket with a false date, and issued it, that it might be enforced as a policy upon a person who he knew had been accidentally killed while traveling by public conveyance.

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The case of R. v. Wilson (2 Carr & Kirwan [61 E. C. L.], 527), decided in 1847, was this: Mr. Nicholl gave to the prisoner, who was his clerk, a blank check on his bankers, with directions to ascertain the amount and expenses thereon of a certain bill for which Mr. Ificholl was bound; to fill up the check with that amount, get the money from the bank and take up the bill. The amount of the bill and expenses thereon was £156. The prisoner filled up the check for £250, obtained that amount thereon from the bank, and retained it for salary, which he claimed to be due to ' him from his employer, and immediately gave notice by letter to his employer of what he had done. The prisoner was convicted of forgery. The fifteen judges sustained the conviction, and held that it was clearly forgery, even if the prisoner believed that £250 were due to him, or even if it were really due to him.

- In R. v. Hart (7 Carr & P. [32 E. C. L.], 672), decided in 1836, it was held that if a person having the blank acceptance of another, be authorized to write on it a bill ■ of exchange for a certain limited amount, and write on it a bill of exchange for a larger amount, with intent to defraud, it is forgery.

In R. v. Bateman (1 Cox’s Criminal Cases, 186), it was ruled that if a person to whom a blank check is delivered fill it up with a different amount, or for a different purpose than that which • his authority warranted, or if, after the authority is at an end, he fill it up with any amount, with intent to defraud, it is clearly forgery. (Vanduzer v. Howe, 21 N. Y. R., 531.)

2. Misnomer. “ The name of incorporation,” says Sir Edward Coke, “is a proper name, or name of baptism; and, therefore, when a private founder gives his college or hospital a name, he does it only as a god-father, and by that same name the King baptizes the corporation.”

It is said in Angel <& Ames on Corporations {page 77"),

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upon authority, that though the name of a corporate body is compared to the Christian name of a natural person, yet the comparison is not in all. respects perfectly correct. A Christian name consists in general but of a single word in which the alteration or omission of a single letter may make a material alteration in the name.

The name of a corporation frequently consists of several descriptive words, and the transposition of them, or an interpolation or omission of some of them may make no essential difference in their sense.

The first count of the indictment does not aver the corporate name of the insurance company to be “The Traveler’s Insurance Company, of Hartford, Connecticut.” It avers that the instrument purported to be the act of another, to wit: of “The Traveler’s Insurance Company, of Hartford, Connecticut,” and that the intent was to defraud “The Traveler^ Insurance Company, of Hartford, Connecticut, which was then and there a corporation duly organized,” &c.

It describes the artificial person whose act it purported to be, and whom it was intended to defraud by its corporate name, with the addition of the place in which it is created. To describe a natural person by his full name, with the addition of his place of residence, would certainly be unobjectionable.

To aver that the instrument purported to be the act of and was made with the intent to defraud John Doe, of Hartford, Connecticut, would lead to no embarrassment, or be the ground of any reasonable objection. I am unable to see any reasonable ground of objection to thus describing an artificial person.

I am of the opinion that none of the exceptions are well taken.

I have thus far considered the case under the first count.

In the third count, which charges the prisoner with having uttered, &c., the corporation is described by its

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corporate name, without the addition of the name of the place at which it is created. It is not claimed that there is a misnomer of the corporation in that count. I think the delivery of the policy tickets by the prisoner to Warner, at the city of Buffalo, was an uttering at that place within the statute. It does not appear that it was objected upon the trial that it was not.

But I do not deem it necessary to decide whether the delivery to Warner, at Buffalo, was an uttering, for I am clearly of the opinion that the conviction must be sus- . tained if the first count were the only count in the indictment. Conviction affirmed.