State v. Coyle , 41 Wis. 267 ( 1876 )

Ooim, J.

A number of exceptions were taken during the trial to the rulings of the court admitting or excluding evidence; and these exceptions have been argued by counsel on both sides. We suppose, however, that our consideration must be confined to the questions involved in the motion in arrest of judgment, as those are the only ones the circuit court has reported for our decision. And those questions, it will be seen, relate principally to the sufficiency of the information. The information is framed upon sec. 1, ch. 166, R. S. By that section, the false making, alteration, forging or counterfeiting of any bill of exchange, or order for money or other property, with a fraudulent intent, constitutes forgery. The instrument set out in the information, on its face, is an order directed to a bank to pay the bearer a sum of money in current funds. This is the plain, natural meaning of the instrument. It is said that the check was not payable in money; but was an order for a chattel, without naming it. We do not think this would be the understanding or construction of such an instrument addressed to a bank whose business was receiving and paying out money. (See Elliot’s Case, 1 Leach’s Crown Cas., 176; The State v. Dourden, 2 Dev., 443; Evans v. The State, 8 Ohio St., 196; Carberry v. The State, 11 id., 410.) The check is for the payment of money, or the payment of current funds which pass as money between banks, or between a bank and its customers. The words “ personal property,” as used in the statute, “ include money, goods, chattels, things in action and evidences of debt.” Subd. 14, sec. 3, ch. 5, R. S. If the order was for the payment or delivery of things in action or evidences of debt, it would come within the statute. But a person receiving the order would naturally expect, and would have the right to assume, that it was payable in money, or in bank bills which pass for money. The order or check certainly, on its face, professes to be drawn by one who has funds in the bank, which he can control. Under the circumstances, we have no doubt that the false making of such an order, with fraudulent intent, constitutes the crime of forgery under the statute.

It is said that the order does not direct the payment of any particular sum of money, but is indefinite and incomplete. It certainly calls for the payment of fifty dollars. The attorney general argues that the word “ hundred ” should be supplied in the body of the instrument; that the figures 150.00 preceded by the $ mark, in the margin, authorize and warrant the insertion of that word. "We have some donbt about the correctness of this position; hut it is unnecessary to dwell upon it, as the crime is complete as the order now stands. At least the check calls for the payment of fifty dollars, the woi’d “one ” being rejected as surplusage.

A still further objection is, that the check, as drawn, would not deceive any one, nor could an action be sustained upon it. This objection has been sufficiently answered by what has been already said on the other points. It seems to us that the check, if genuine, would create a liability. For it is an order upon the hank for the payment of fifty dollars, at least. In Commonwealth v. White and another, 11 Cush., 4-81, it is held that “ a person may be convicted of forging a check on a bank, although the counterfeit does not so much resemble the genuine check of the drawer as to be likely to deceive the officers of the bank on which it is drawn.” It seems to us that this cheek was apparently a valid obligation, and had a tendency to defraud.

The case must be certified to the circuit court with these answers to the questions reported, and with the direction that that court proceed in accordance with our decision.

By the Cowrt. — It is so ordered.