Peoples Bank & Trust Co. v. Fidelity & Casualty Co.

57 S.E.2d 809 (1950) 231 N.C. 510

PEOPLES BANK & TRUST CO.
v.
FIDELITY & CASUALTY CO. OF NEW YORK.

No. 97.

Supreme Court of North Carolina.

March 1, 1950.

Thorp & Thorp, Rocky Mount, for plaintiff, appellant.

Battle, Winslow & Merrell, Rocky Mount, for defendant, appellee.

SEAWELL, Justice.

We are advised by counsel that the instant case is one of first impression in this State. Our own examination of the Reports reveals no decision of this Court dealing directly with a similar factual situation.

Two persons bearing the same name, Otha Langley, are concerned in the transactions out of which the litigation grew. Otha Langley of R. F. D. had a fund on deposit and a checking account with the plaintiff bank; Otha Langley of Nash Street had none. The latter, signing his own name, drew checks on the bank from time to time which were paid to him by the bank out of the deposit of the other Otha Langley, thereby drawing the funds of the latter from the bank during a period of over four months and in a total amount of over $4,000.00. The other Langley, the owner, was moderately checking on the deposit meantime.

We need not toy with the abstract question whether a person may commit forgery by signing his own name, since the attendant conditioning circumstances must be given to evoke an intelligent answer.

The determinative question on the evidence presented is whether Otha Langley of Nash Street, signing checks in his own name and fraudulently and knowingly withdrawing from the bank the funds of another of like or similar name, is guilty of forgery. The appellee says, Yes; the appellant says, No. We are inclined to agree with the appellee when it appears that the signature of the withdrawer, although in his own name, was intended to be taken as the act, or the genuine signature of the owner of the fund without whose authority it could not be lawfully withdrawn. See citations, infra.

It is not disputed that the policy does not cover losses which forgery is directly or indirectly effective in producing. Our task is, therefore, to analyze the transactions found in the evidence to see if they may be rectified so as to eliminate altogether the element of forgery as an influence, near or remote, in producing the loss. The appellant contends that this is easily done, since forgery was never at any time present. It sees as the only effective isolate of such refining process the crime of false pretense.

The crime of forgery has been made the subject of statutes in practically all the states in the Union, including our own. This makes it necessary to examine with care decisions cited as authority, many of which observe variations in the common law effected by the local statutes. The North Carolina statute pertinent to the class of forgery here charged, G.S. § 14-119 (see also § 14-120), has been held not to exclude common-law forgery. State v. Hall, 108 N.C. 776, 13 S.E. 189; State v. Lamb, 198 N.C. 423, 152 S.E. 154; Parrish v. Hewitt, 220 N.C. 708, 18 S.E.2d 141. At any rate it does not attempt to define forgery, but merely includes the acts described as within that category. For a definition of forgery as within the statute we must resort to the common law.

Some pertinent definitions of forgery most frequently used by the courts are quoted here for the purpose of analyzing the crime into its essential constitutive parts, upon which emphasis must be placed, rather than upon the incidental or accidental features of its accomplishment,—one of which, in the instant case, is the identity or similarity of names between the alleged forger and the man whose rights are affected.

From the two leading law encyclopedias in common use we take the following:

"Subject to statutory variations, forgery may generally be defined as the false making or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability. * * * The verb ``forge' in law means to make a false instrument in similitude of an instrument by which one person could be obligated to another for the purpose of fraud and deceit; to make or alter with intent to defraud." 37 C.J.S., Forgery, § 1.

"Blackstone's definition of forgery (3 Com. 247) as ``the fraudulent making or alteration of a writing to the prejudice of another man's rights' is frequently quoted by the courts, as is Coke's statement (3 Inst. 169) that ``to forge is metaphorically taken from the smith who beateth upon his anvil and forgeth what fashion or shape he will. The offense is called crimen falsi, and the offender falsarious, and the Latin word, to forge, as falsari, or fabricari, and is properly taken where the act is done in the name of another person.'" 23 Am. Jur., Forgery, Sec. 2. See 23 Am.Jur., Forgery, Sec. 2, and 37 C.J.S., Forgery, § 1; 17 Words and Phrases, Perm.Ed., Forgery, p. 341.

"Forgery, at common law, denotes a false making * * * a making, malo animo, of any written instrument for the purpose of fraud and deceit." 2 East P.C. 852.

"It is the making or altering of a document with intent to defraud or prejudice another so as to make it appear to be a document made by another." In re Windsor, 10 Cox C.C. 118, 124.

From these definitions we find that the essentials to the completion of the offense are: (a) The falsification of a paper, or the making of a false paper, of legal efficacy "apparently capable of effecting a fraud"; (b) the fraudulent intent. 37 C. J.S., Forgery, § 3. It is to be noted that the falsity of the writing does not necessarily or usually refer to the tenor of the writing or of facts stated in it, but to the want of genuineness in its making,—"Without regard to the truth or falsehood of the statement it contains"; Id. § 5.

In forgeries of the character under consideration the falsity of the paper consists in the falseness of its purported authority, the fraudulent intent that the signature shall pass or be received as the genuine act of the person whose signing, only, could make the paper valid and effectual. The question of intent is dominantly important.

False pretense and forgery are closely akin, both belonging historically to the family of offenses known to the common law as "cheats," and now so classed. False pretense is the heart of forgery,— the essence of its being. The principal difference between the two, historically developed in the common law, is that forgery exclusively pertains to a writing, while false pretense covers fraudulent deceits by parol. Treatment of forgery as a separate offense came from recognition that a fraud perpetrated in altering a writing or in making a false writing tends directly to destroy the security which permanent monuments in writing give to transactions affecting the more important rights of persons privy to them. It became a separate and graver offense; but the gist of forgery still is fraud. Davenport v. Commonwealth, 287 Ky. 505, 154 S.W.2d 552; Leslie v. Kennedy, 249 Mich. 553, 225 N.W. 469; State v. Luff, 198 N.C. 600, 152 S.E. 791; Burdick, Law of Crime, Vol. 2, p. 550, sec. 663.

There is then no logical reason whatever that we can see that would confer immunity from the charge of forgery upon a person who signs his own name to a check with the fraudulent intent that it should be taken as the act of another person of like name, thereby withdrawing to his own use the deposits made by another. While, as stated, that exact situation has not been presented to this Court on any appeal so far as we can find, there is such a consensus of authority on the subject in other states and among learned writers that we must consider the proposition definitely established by the weight of authority as well as logical and sound in principle. 37 C.J.S., Forgery, § 9; 23 Am.Jur., Sec. 9; Thomas v. First National Bank, 101 Miss. 500, 58 So. 478, 39 L.R.A., N.S., 355; Commonwealth v. Foster, 114 Mass. 311, 19 Am.Rep. 353; Barfield v. State, 29 Ga. 127, 74 Am.Dec. 49; International Union Bank v. National Surety Co., 245 N.Y. 368, 157 N.E. 269, 52 A.L.R. 1375; White v. Van Horn, 159 U.S. 3, 15 S.Ct. 1027, 40 L.Ed. 55; 2 Bishop's Criminal Law, Sec. 585; Edwards v. State, 53 Tex.Cr.R. 50, 108 S. W. 673, 126 Am.St.Rep. 767; People v. Rushing, 130 Cal. 449, 62 P. 742, 80 Am. St.Rep. 141; Beattie v. National Bank of Ill., 174 Ill. 571, 51 N.E. 602, 43 A.L.R. 654, 66 Am.St.Rep. 318. Economy of space compels us to make the list selective rather than exhaustive. We think we should add to the foregoing authorities, however, Bank of Sanford v. Marshburn, 229 N.C. 104, 47 S.E.2d 793, which the appellee says, and we think with reason, commits the Court to this view.

It is suggested by the appellant that there is not sufficient similarity between the names of Otha Langley and Otha G. Langley to bring the case within the definitions of forgery, although it may have been false pretense. The authorities seem to be against that position. The evidence shows that the checks were drawn by Langley of Nash Street by signatures sometimes made Otha Langley, and sometimes written Otha G. Langley; but the similarity of the names, certainly when the fraud has been accomplished, has in similar cases been considered sufficient. 37 C.J.S., Forgery, § 13. A similar position with regard to handwriting was taken in the case of State v. Cross and State v. White, 101 N.C. 770, 7 S.E. 715, 722, 9 Am.St.Rep. 53, and rejected by the Court. "This proposition would excuse an act of forgery in every case, even when the fraud had been consumated, when the person upon whom it was practiced was unacquainted with the handwriting of one whose signature it purported to be, and who reposed confidence in the genuineness of the paper. The variation in the writing may be evidence of the absence of an intent to defraud, but not when the intent has been developed in the act of defrauding. * * * Besides the variance was not so marked as to call for such a direction". State v. Chance, 82 Kan. 388, 108 P. 789, 27 L.R.A., N.S., 1003, 20 Ann.Cas. 164; State v. Lane, 80 N.C. 407; State v. Collins, 115 N.C. 716, 20 S.E. 452; State v. Higgins, 60 Minn. 1, 61 N.W. 816, 27 L.R.A. 74, 51 Am.St. Rep. 490.

The general holding is that when designed and used as an instrument of fraud the act is forgery, although the names are not identical, but merely idem sonans; and the use of a recurrent middle letter not in the simulated signature is not a fatal variance. White v. Van Horn, supra. The contention must be rejected.

We have already referred to the fact that the combination of circumstances making this kind of forgery opportune must be rare. And we might add here as peculiarly applicable to the instant case, the observation in Commonwealth v. Foster, supra, as follows: "The question of forgery does not depend upon the presence upon the note itself of the indicia of falsity. If extrinsic circumstances are such as to facilitate the accomplishment of the cheat without the aid of any device in the note itself, the preparation of a note, with intent to take advantage of those circumstances, and use it falsely, is making a false instrument."

As we have stated, the question of intent is dominantly important; and we think the controversy narrows down to the evidence tying Langley with the forgery. Outstanding items of this evidence are as follows:

It may be inferred that he discovered the existence of the account in the name of the other Otha Langley at the time the first check drawn by him was cashed, under the circumstances accompanying it, and found that his signature would pass the test at the teller's window. He promptly took advantage of this circumstance, and inquiring what "my" balance was,—knowing he had none—expressed no surprise at the amount given. Although he deposited nothing he knew the deposits grew from time to time in the name of Otha Langley. He himself had never deposited a cent there, and could not assume that he was the beneficiary of some anonymous friend, nor was he depending on an unlawful overdraft or an extension of credit by the bank. The assault was made upon a specific account, which the evidence discloses he hawked from the beginning of the transactions, inquiring with every withdrawal what "my" balance was. He requested that his bank statements be sent to a new address—his residence on Nash Street,—inferribly to put off the day of discovery, which he succeeded in doing for over four months, or until the real owner of the deposits became anxious to know why he had not received his statements, and discovered that his account had been milked almost as fast as he had replenished it, and that he had nothing. It may be inferred that the paid checks in evidence representing the modest and thrifty withdrawals of the rural Otha Langley, along with the spurious checks drawn by himself, went to Otha Langley at 822 Nash Street, giving him specific information of the identity of his namesake as the depositor.

We are only summarizing a few of the facts which the evidence tends to show and the legitimate inferences they engender, as an appellate judicial duty, apart from any intimation as to their ultimate truth. They constitute evidence of forgery.

We are not concerned here with the niceties which might be observed by the solicitor in choosing the subject of prosecution, —whether false pretense or forgery. We are convinced that if the culpable Langley had been tried and convicted of either offense the State would be estopped under the principle of former jeopardy of trying him again upon the other, since either crime must be predicated upon the same transactions. State v. Bell, 205 N.C. 225, 171 S.E. 50. And we may observe, too, in that connection, that in a long series of transactions occurring during the four months Langley of Nash Street dealt with the account of Langley of R. F. D., forgery may have been aided by parol false pretense. Under a policy which expressly rejects liability for any loss effected directly or indirectly by forgery it makes no difference which was the crime and which the adulterant.

The policy only covers the listed losses, not loss in general, and a clause which in plain terms rejects, in what must be considered the body of the instrument, loss which is effected directly or indirectly by forgery, is not an exception from a general coverage, leaving the burden on the defendant to bring itself within it.

It appears from the evidence that loss by forgery was deleted from the instrument, because such a coverage would have to be paid for by a higher premium, in language which does not constitute a prima facie covering.

We observe that each litigant requested a peremptory instruction to the jury in its own favor. The request of the plaintiff was denied and that of the defendant granted. The instruction was given in the formula frequently approved by this Court, leaving to the jury to pass on the weight of the evidence, or, in other words, its truth, as related to the issue, and the law to the court; and plaintiff's objection to that phase of the case cannot be sustained.

Other objections and exceptions not specifically mentioned herein have been carefully examined and do not, in our opinion, justify interfering with the verdict or judgment.

We find no error.

No error.

BARNHILL, J., took no part in the consideration or decision of this case.