People v. Wiman ( 1895 )

O’BRIEN, J. (concurring).

It is conceded that the defendant had the right to sign checks in the name of R. GL Dun & Co. Whether such right was conferred upon him by express or implied authority, or by virtue of his status as a partner in the firm, seems to me immaterial, so far as it affects the crime with which the defendant stands charged. He was not called upon to answer for having made the check, but for having, with intent to defraud, indorsed the name of Bullinger upon the back thereof. If, therefore, he had made the check to Bullinger’s order, having originally intended to deliver it to him, and subsequently, having changed his mind, he indorsed the check with intent to defraud, he would be as guilty of the crime of forgery as though he had made the check with the original intention of having it payable to the order of Bullinger, without intending to deliver it to him, but to indorse the latter’s name thereon, and thus fraudulently obtain the money represented by the check. In other words, by the act of indorsing the name of Bullinger with criminal intent, he would be guilty of forgery, whether he had or had not been guilty of any independent or separate fraud in signing the check. The evidence shows beyond dispute that without authority he indorsed the name of Bullinger thereon; and whether he was guilty or not of an independent fraud in signing the check could not lessen his guilt, if established, of having, with intent to defraud, forged the name of Bullinger. The intent with which the act was done was an essential ingredient of the crime, and, being a question of fact, and not of law, it was necessary that, under proper instructions, it should be submitted to the jury, to whom the solution of the question of fact belonged. It was important to the rights of the defendant that this question should be clearly presented to the jury, and where, as in the case at bar, this" was not done, it cannot be regarded as a harmless error. I concur, therefore, inothe result reached by the presiding justice, that the judgment of conviction should be reversed, and the defendant have a new trial.