State v. Gorham , 93 Utah 274 ( 1937 )

I dissent. I think the judgment should be reversed and the cause remanded, with directions to grant a new trial. There are four points upon which I must disagree with my associates. I state my position on these matters as follows: (1) The trial court was in error in denying defendant's motion to dismiss the first count before any evidence was received. (2) The statement by the state's attorney, and challenged by defendant's counsel, was misconduct. (3) This action, on the record as made by the state, is not a forgery or violation of section 103-24-1, R.S. 1933, but, if committed, is a violation of section 103-24-7, R.S. 1933, to wit, a fictitious instrument. (4) The court's instructions to the jury were erroneous. I will notice them in their order.

(1) The information was in two counts: Forging a bank draft and uttering a forged instrument. Defendant has been tried twice. On the first trial he was found guilty only on the second count, that of uttering a forged instrument. It is elemental that where there is more than one count in an information, a conviction on one count only is in law an acquittal on the other count or counts. 16 C.J. 1107; Jolly v. United States, 170 U.S. 402,18 S. Ct. 624, 42 L. Ed. 1085; Bigcraft v. People,30 Colo. 298, 70 P. 417; State v. Patterson, 116 Mo. 505, 22 S.W. 696;Tandy v. State, 94 Wis. 498, 69 N.W. 160; People v.Dowling, 84 N.Y. 478; Betts v. State, 60 Tex.Crim. R.,133 S.W. 251. Defendant, therefore, having been acquitted on the first count, could not again be tried upon that count. When this court reversed the judgment rendered on the first trial, the cause was remanded for retrial on the only count remaining upon which defendant could be tried, to wit, the second count. This seems to be conceded by Mr. Justice HANSON, but he argues that since defendant was again acquitted on the first count he cannot be heard to complain that he was again tried on that count.

Such argument does not answer defendant's challenge. When the trial court refused to dismiss the first count and permitted the state to offer evidence thereon, argue it to the jury, and the court itself submitted to the jury the question of guilt or innocence, it broadened the field of evidence to be submitted to the jury; it permitted the state to offer evidence of and argue defendant's guilt upon another offense, for which he was not properly on trial, and the court itself emphasized and called attention to such other offense by submitting the same in instructions to the jury. We cannot say that such action was not harmful and prejudicial. It permits the state to paint defendant as an habitual criminal or law-breaker; to prejudice the jury to convict him of some crime on general principles. 8 R.C.L. 198; 16 C.J. 586. Such ruling and the procedure allowed after the ruling were prejudicial error.

(2) The question of improper conduct on the part of the state's counsel arises from the following situation: In the cross-examination of one of the state's witnesses, counsel for defendant sought to elicit from the witness certain facts which counsel deemed material and important. The prosecution objected to the question, and the following colloquy took place:

Counsel for defendant: "Do you want me to state my theory before the jury?" Prosecutor: "I don't think it necessary." Counsel for defendant: "I want to advise the court of my theory." Prosecutor: "Let the defendant tell the theory later on."

Defendant's counsel then moved for a mistrial, assigning the statement of counsel for the state as misconduct. The motion was denied with the statement that defendant was not obligated to take the witness stand, and, therefore the jury should disregard the statement of the district attorney with regard to that. I am not prepared at this time to say that the remark was such misconduct as to require us, at this stage, to reverse the judgment. But the remark of state's counsel was highly improper. It was ill-becoming an attorney of repute, and should not be indulged in or permitted in any court. Such comments and interjections by counsel, repartees and "back snapping" between counsel are far too common and frequent in the trial of cases. They tend to lessen the esteem in which both the courts and the profession are held, and savor of a vaudeville or sideshow, more than a court of justice. If counsel will not refrain from such things, and practice according to the highest standards, it is the duty of the trial court to see that counsel refrain from bickerings, caustic comments to each other, insinuations, and innuendoes, and deport themselves as counsel should, zealous in the interest of their clients, but fair to the opposing party, honest with the court, and be gentlemen at all times. And counsel should never, without proper rebuke, be permitted to interject by comment to counsel or witness, or under the guise of argument to the court, matters which he could not conscientiously urge as proper evidence to be considered in the cause. The comment of the court in denying the motion for mistrial, that "defendant was not required to take the witness stand," probably emphasized the vice in the remark by state's counsel, "Let the defendant tell the theory later on," and called attention to the fact that the meaning of the statement that counsel should not be making his statement to the court, but that defendant should be the only proper mouthpiece for the defense. On such occasions, the court should promptly strike the statement from the record, reprimand counsel for making such interruptions and interjections, with a warning that repetitions would lead to mistrial.

(3) This brings me to the most serious point in the record. The defendant was charged with and convicted of uttering a forged instrument, a violation of section 103-24-1, R.S. 1933. I think the evidence shows that if any crime was committed it was that of uttering a fictitious instrument, a violation of section 103-24-7, R.S. 1933. Under the former section, forgery, so far as material here, is defined:

"Every person who, with intent to defraud another, falsely makes, alters, forges or counterfeits any * * * check, draft, bill of exchange * * * or counterfeits or forges the seal or handwriting of another * * * or utters, publishes or passes, * * * as true or genuine any of the above-named false, altered, forged or counterfeited matters, * * * knowing the same to be false, altered, forged orcounterfeited, was intent to prejudice, damage or defraud any person; * * * is guilty of forgery." (Italics supplied.)

The penalty is 1 to 20 years in the state prison. Section 103-24-4. This foregoing section, standing alone, may be broad enough in its terms to cover the facts as shown by the state's evidence in the case at bar. But we have another statute, a special section, or specific statute, section 103-24-7, which reads:

"Every person who makes, passes, utters or publishes, with intention to defraud any other person * * * any fictitious bill, note or check, purporting to be the bill, note, check or other instrument in writing for the payment of money or property of some bank, * * * or individual when in fact there is no suchbank * * * or individual in existence, knowing the * * * check orinstrument * * * to be fictitious, is punishable by imprisonment * * * for not less than one nor more than ten years." (Italics supplied.)

As pointed out by Mr. Justice HANSON, our statute was taken from California, and it has there been held that a conviction of forgery could not be sustained where the facts disclosed a fictitious name had been used. People v. Elliot, 90 Cal. 586,27 P. 433. And that where the name used on the check was not that of a living person, the instrument was fictitious, and a prosecution should be had under the section governing fictitious instruments. This, too, where the penalty under the two sections was the same. People v. Eppinger, 105 Cal. 36, 38 P. 538,People v. Terrill, 133 Cal. 120, 65 P. 303. In this state the penalties under the two sections are different, so it becomes of more moment and significance that the proceeding be under the right section. This, too, is conceded by Mr. Justice HANSON, but he seeks to avoid the rule by invoking the doctrine of idem sonans.

I do not think the doctrine of idem sonans has any relationship to the issues here involved. The state itself proved, much of the evidence over defendant's objection, that the instrument was a fictitious one; that there was no person in existence whose name was signed to the draft, the test of a fictitious instrument. It is argued in the prevailing opinion that if the maker of the draft intended to use the name of "Samuel E. Bringhurst" but wrote "Sam L. Bringhurt," it would constitute a forgery of the name of Samuel E. Bringhurst. Such a position is untenable. It makes a mere intent a crime, where the overt act does not show the intent and does not carry out the intent. It also makes the intent of one man a crime on the part of another. In the first trial, and again on the second trial, defendant was acquitted on a charge of making the instrument, of writing it. Yet it is argued that the intent of the writer of the instrument to use one name, but actually using another name, carries over to make a crime of that intent on the part of another who merely passes or utters the instrument, without any evidence that he knew anything about the intent of the person who wrote the instrument, to use any other name than that written. In the third place, the conclusion follows from such doctrine that because the name used was fictitious the jury may infer that some one not on trial, who wrote the instrument, intended to use some other name than that written, merely from the fact that the name is fictitious, and this in spite of the statute. To quote the language of Mr. Justice HANSON, in his opinion, "the prosecuting officer must therefore initially consider whether the instrument involved will prove to be fictitious or not" and bring his action accordingly.

Let us look briefly at the evidence. The evidence in the record tending to connect the name on the draft "Sam L. Bringhurt" with "Samuel E. Bringhurst" of Murray, was not the words or statement of defendant but the deductions and conclusions of the state's witnesses. Arthur Knight testified:

"Q. Relate the conversation you overheard? A. Discussing the check and Mr. Gorham said that Sam, in relation to this Sam Bringhurst whose name was on the check, that he was in the automobile business in Murray and that he was in the bishopric of one of the wards in Murray."

Of course, none of this is a direct statement of defendant, and I find it impossible to tell what is meant for the substance of the conversation and what parts are the witness's explanatory interpolations. Then, in answer to a question as to conversations as to the standing of Bringhurst in the community, the witness stated.

"A. It was stated at that time that we thought he was doing a good job down there in the automobile business; he was generally admired and known by the boys that were there in the group." (Italics supplied.)

This is clearly not Gorham's statement. Ralph Brandley, the man who gave out the cash for the draft, testified:

"Mr. Gorham handed Mr. Pearson this particular check, and I remember Mr. Pearson taking it in his hand, and he says, ``Well, this is Sam Bringhurst at Murray. I know him very well' and as I remember it Mr. Gorham agreed that it was the Mr. Bringhurst, and Mr. Gorham also said that he was an official, or a bishop, or held an office in the Mormon Church, and Mr. Pearson said he knew Mr. Bringhurst very, very well and he admired him for the way he done business."

On redirect he was asked:

"Q. Who was the first person you heard mention the name of Bringhurst at Murray? A. Well, the first person I heard say it was Mr. Pearson, and then Mr. Gorham said — they discussed him and Mr. Gorham said, ``Yes,' he thought he was a successful business man in Murray."

L.M. Pearson, who had the conversation with defendant, testified:

"It is hard for me to remember what that conversation was. I recall that we talked about automobiles, and about his Buick, and about his Chrysler and business conditions, and we talked about the gentleman, Mr. Samuel L. Bringhurst * * * who was in the automobile business. Well, I don't recall exactly the conversation at the time. I recall this, however, that Samuel L. Bringhurst's check was tendered to me, what I thought was his check, by Mr. Gorham." (Italics supplied.)

And on cross-examination:

"Well, he presented me with a check and I did not scrutinize the check at all, I was doing business with Mr. Gorham and I felt that the check was fine and dandy. As a matter of fact I accepted it and o'kayed it. * * *"

At the former trial in 1933, the witness testified:

"Q. Did you have any conversation with regard to the maker of the check at that time? A. Well, I don't remember about that, I don't know as we talked about that at all. We talked about the Buick, and we talked about his Chrysler and we talked about automobile business in general, but I don't particularly remember at this time whether we talked about Mr. Bringhurst or not. After the check was cashed we talked about that, Mr. Black."

I have gone over the record with a fine tooth comb and have here set forth all the evidence in the record, just as it appears in the reporter's transcript, about the conversation or representations about the check or its maker. The outstanding fact from all this evidence is that it was not the defendant who stated and represented the draft to be that of Samuel E. Bringhurst of Murray, but Mr. Pearson, who looked at the check, stated it was Bringhurst's check; that he knew Bringhurst and the check was O.K. The fact that defendant did not contradict the statement and acquiesced in the statements of the others present is of small significance, especially in view of the fact that a jury has twice found that defendant did not make or write the draft.

But the state was not content with showing that the signature was not that of Bringhurst. It assumed the burden, often over defendant's objection, of showing that the draft was, in fact, a fictitious instrument rather than a forged instrument. It called to the witness stand the auditor of the bank on which the draft was drawn and proved by him that there was not, and had never been, an account in that bank in the name of "Sam L. Bringhurt" or in the name of "Samuel E. Bringhurst" or "Samuel L. Bringhurst." This was offered and received over the objection of the defendant. Such evidence was wholly immaterial and irrelevant on any issue under the charge for uttering a forged instrument, for there the issue is the bona fides of the signature. But such evidence is proper and essential, and is by itself and alone prima facie evidence that the instrument is fictitious. People v. Eppinger, 105 Cal. 36,38 P. 538; 3 Greenleaf on Evid., § 108; Rex v. Backler, 5 Car. P. 118; Rex v. Brannan, 6 Car. P. 326. The state also put into the record evidence that there was no man around Murray, or known, or to be found in Salt Lake county, by the name of Sam L. Bringhurst. This also was received over defendant's objection as immaterial and irrelevant. On the issue of uttering an instrument with a forged signature, such objection was well taken, but on an issue as to whether the instrument was fictitious, the evidence was very material and cogent, as going to prove there was in fact no such person as Sam L. Bringhurst in existence. Only upon that theory was the evidence pertinent.People v. Sharp, 53 Mich. 523, 19 N.W. 168; State v.Hahn, 38 La. Ann. 169. It is evident, therefore, that the evidence shows that the instrument was not one with a forged signature but was a fictitious instrument, and, if an offense, was a violation of section 103-24-7, R.S. 1933, and should not be prosecuted under section 103-24-1. This will further appear from my discussion of the fourth point.

(4) The court's instructions to the jury were confusing, contradictory, and erroneous as statements of law. Instruction No. 3 tells the jury that to find the instrument was a forged instrument (without which finding there could be no conviction under the information), they must find that the name "Sam L. Bringhurt," as signed to the draft, was intended to be and meant for the signature of "Samuel E. Bringhurst." And, of course, unless such fact were found the instrument could not be a forged instrument upon which a conviction would lie. No other definition of forgery was given. No instruction was given as to whether defendant was authorized to sign the draft for "Bringhurst." But in instructions numbered 7 and 8, the jury are told that they must find that the defendant was not authorized to execute the draft by "Sam. L. Bringhurt." The jury are thus told that to find the instrument was forged, they must find that Sam L. Bringhurt, whose name appeared on the draft, was not a real person, was a fiction, intended for one Samuel E. Bringhurst; and then told that they must find that defendant did not have authority, not from Bringhurst, but from this fictitious, non-existent person, Sam L. Bringhurt, to sign his, Bringhurt's, fictitious name to the draft.

The instructions as a whole do not properly instruct the jury on any essential matter in the case. They consist merely of a copy of the information and the usual stock instructions. Instruction No. 1 is just a copy of the information; No. 2, just a statement of plea and burden of proof; Nos. 3, 5, 6, and 7 by their express terms apply only to the first count, and since defendant in the former trial had been acquitted on that count, that count was not properly involved in this trial, and the instructions thereon were outside the record and should not have been given at all. Commencing with instruction No. 9, to the end of the charge, they are simply standard stock instructions. This leaves only instructions Nos. 4 and 8 pertaining to the issues in the cause. I set them out in haec verba:

No. 4. "You are further instructed that in order to find the defendant guilty of the crime of forgery as charged in the second count of the information the burden is upon the State to prove to your satisfaction beyond a reasonable doubt

"1. That the defendant, C. Gorham, on the 31st day of December, 1932, at the County of Salt Lake, State of Utah, did wilfully pass as genuine and true to and upon the Goodrich Silvertown Incorporated, a corporation, a certain writing on paper purporting to be a bank draft;

"2. That said writing on paper was the writing described and the tenor whereof is set out in the second count of the information;

"3. That said writing on paper purporting to be a bank draft was a forged instrument;

"4. That he passed the same to and upon the Goodrich Silvertown Incorporated, a corporation, as a genuine and true bank draft;

"5. That he passed the same upon the aforesaid Goodrich Silvertown Incorporated, a corporation, with intent to defraud the said Goodrich Silvertown Incorporated, a corporation.

"You are further instructed that in order to find the defendant guilty of the crime of forgery as charged in the second count of the information it is not enough that one or more of the elements of said crime hereinbefore enumerated be proved to your satisfaction beyond a reasonable doubt short of all of them, but in order to convict the defendant on said second count of the information it will be necessary that you find to your satisfaction and beyond a reasonable doubt each and every one of the essential elements of said charge hereinbefore enumerated."

No. 8. "You are instructed that before you can find the defendant guilty under the second count alleged in the information, you must first find that ``Exhibit A' is a forged instrument and was not drawn, made or executed by or with the consent of Sam L. Bringhurt; and that you further find that the defendant, at the time he presented said instrument to the Goodrich Silvertown Inc. knew that said instrument was a forged instrument, and that he then and there intended to defraud the said Goodrich Silvertown Inc. by the presentation of said instrument, and if any of said elements are lacking, your verdict on said count must be not guilty."

There is no definition of what constitutes a forged instrument; no gauge by which the jury may determine whether it was forged; no way for them to know what was meant by a forged instrument, unless we find it in instruction No. 8 in the statement that it "was not drawn, made, or executed by or with the consent of Sam L. Bringhurt." Such a statement recognizes the existence of a man named Sam L. Bringhurt. It recognizes that it was his name on the draft and intended for his signature. But no effort was made to show that Sam L. Bringhurt had not signed the instrument himself; and no effort to show he had not authorized it; no evidence given it was not his signature. Bear in mind also that the jury twice found that defendant did not write the instrument. The case, therefore, under this instruction comes squarely within the rule laid down by this court on the first appeal, and should be reversed for the same reason. State v.Gorham, 87 Utah 86, 48 P.2d 447.

And if we consider all the instructions given, even those as to the first count, as applying or to be considered in connection with the second count, the matter gets worse. Because, in instruction No. 3, the court tells the jury that before they can find the instrument was forged, they must find "that the name Sam. L. Bringhurt as signed to said draft and the name Samuel E. Bringhurst represent the same person, and that in signing the name of Sam L. Bringhurt to said draft, the defendant, C. Gorham, thereby intended to sign the name of Samuel E. Bringhurst," and then in instruction No. 8 they are told that it is not a forged instrument unless it was made and drawn without the consent, not of Bringhurst, but of one Sam L. Bringhurt. But independent of instruction No. 8, the instruction numbered 3 is erroneous and does not make a forged instrument under section 103-24-1, but makes a fictitious instrument under section 103-24-7. A similar instruction in form and substance was before the Supreme Court of California in People v. Elliot, supra, and I quote from that able opinion. Bear in mind that our statute was taken from California, and her section 470 is our section 103-24-1, and her section 476 is our section 103-24-7. I quote:

"The court gave the jury the following instruction: ``If you find from the evidence beyond a reasonable doubt that at the time and place alleged, with the intent alleged, defendant did feloniously make, utter, and pass as genuine the check in question; that he intended to sign thereto the name of the firm of Rice McKee, and by mistake signed the name of "A.E. Rice Co." believing that to be the correct name, and uttered the same as the genuine check of said firm; and that said Southern California National Bank is a corporation as alleged; and that said check is false and unauthorized, — then you should find the defendant guilty, notwithstanding the mistake in the name of said firm.' Without going into a technical analysis of this instruction, as to whether or not it fully answers the requirements of the law in other respects, let us see if it be true that in the words of the instruction the defendant is guilty of forgery, ``if, intending to sign the name of the firm of Rice McKee to the check, by mistake he signed the name of A.E. Rice Co., believing that to be the correct name.' Where a note, bill, check, etc., is the subject of a forgery, it must be proven that the instrument was not signed by the person by whom it purports to be signed, or that such person did not exist at the time; or, in other words, is a fictitious person. In this case, as we have already seen, the proof is lacking in both of these essential respects. Considered in the light of the foregoing instruction of the court, there is no such firm in existence as ``A.E. Rice Co.;' therefore, the check is fictitious, and the prosecution should have been had under section 476, heretofore cited. The law appears to recognize a distinction between forged instruments purporting to have the signature of a person in existence, and those where the signature is purely and entirely fictitious. Indeed, at common law, at one time, it was not forgery to sign the name of a fictitious person to an instrument. Section 470 of the Penal Code is quite broad in its terms, and, in the absence of said section 476, it might probably be construed broad enough to include fictitious instruments as referred to in said section; but, the legislative mind having been directed specially to that class of instruments with reference to the offense of forgery, it would seem the act of making or passing a fictitious check could only be prosecuted when brought within the requirements and conditions of that section. Considered in the light of the instruction, the signature is of a copartnership not in existence, which, ipso facto, makes the instrument a fictitious check; and the fact, if it be a fact, that defendant intended to sign the name of an existing firm to the check appears to be entirely immaterial. He is being prosecuted, and necessarily so, for an offense actually committed, and not for an offense he may have intended to commit. The law does not recognize a man's intentions as a crime, however corrupt and criminal those intentions may be. His intentions simply form the light by which we read and weigh his acts. This is in no sense a question of idem sonans, but the defendant appears to have been prosecuted upon the theory that the signature of the existing firm ``Rice McKee,' for the purposes of this case, was attached to the check."

It follows, therefore, in my opinion, that the judgment should be reversed, and the cause remanded to the district court of Salt Lake county, with directions to grant a new trial.