
    The People, Resp’ts, v. William F. Dickie, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Forgery—Filling out blank check—Interest.
    The cashier of a firm was intrusted at all times with a certain number of signed checks which were blank as to the payee. They were to be used to pay certain creditors only, and for no other purpose. When one was used it was replaced by the firm. When money was needed for cash items, the cashier was required to draw a special check payable to “ W. F. Dickie, currency,” and have it signed. At a time when no claim of a special creditor was payable, the cm shier filled out one of the blank checks “Pay to W. F. Dickie, Currency, or Order,” endorsed it in blank and obtained the money for own uses. Held, a forgery, and that the intent was sufficiently made out.
    
      2. Same—Evidence.
    Evidence of a deficiency in general in the accounts of the cashier with the firm is improper upon the question of intent.
    Appeal by the defendant from a judgment of conviction at the general sessions of the peace.
    
      H. B. Glosson, for app’lt; David Welch, for resp’ts.
   Barrett, J.

The defendant was convicted of the crime of forgery in the second degree. The gist of the offense was the unauthorized filling in of a blank check entrusted to him by his .employers. The material facts as testified to by the complainant, Oscar M. Crego, were these:

Dickie was the cashier of the firm of Russell Crego & Son. As such cashier, he had been for two or three years entrusted with twelve checks, signed by the firm and payable to his own order, but undated and blank as to amount. When one or more of these checks was used its place was supplied, so that Dickiealways had twelve such checks on hand for immediate use. These twelve checks were detached from the check hook and were kept by Dickie in the money drawer. Dickie’s authority with regard to the use of these checks was peculiar. He was authorized always to pay the drafts of an agent of the firm at Elgin, Illinois, also those of a party in Chautauqua county. He was also authorized to pay the freight bills of the different transportation companies in this city. For these payments he was authorized to use the checks in question without any special direction from the firm. For all other payments, however, he was limited to a special direction. He was not authorized to use any of these checks for the payment of current expenses or for the purpose of obtaining ■cash for current expenses or for the payment or liquidation of any claims. When money was required for the payment of employees or other cash items, the custom was, when the money in the drawer was insufficient, for Dickie to'draw a special check for the requisite amount, payable to “ W. F. Dickie, currency,” and bring it (still in the check book and attached to the stub) to Mr. Crego to be signed. The custom also was, when any one of the twelve checks was used to pay drafts or other obligations of the firm, for Dickie to date such check, fill in the precise amount of the draft or other obligation, and then endorse it payable to the order of the creditor of the firm.

Upon the 28th of September, 1889, Dickie took one of these twelve checks, dated it, filled it up for $225, inserted the word “ currrency ” after his own name, so that in place of reading “Pay to W. F. Dickie or order,” it read “Pay to W. F. Dickie, currency, or order,” endorsed it in blank and obtained the money therefor at the bank.

The question is, was this a forgery of the check ? The rule had long been well-settled in England that an unauthorized filling up of blanks in checks, notes, acceptances and such like instruments of a commercial character amounts to forgery. In Rex v. Hart, 7 Car. & P., 652, the prisoner was given an acceptance, blank as to amount, with authority to fill it in for £200. He filled it in for £500. This was held to be forgery, and upon the point being reserved the conviction was sustained hy all the English judges. In Reg. v. Bateman, 1 Cox C. C., 186, it was said that where a check is given with a certain limited authority, the agent is confined strictly within the limits of that authority, and that if he fills in the check with a different amount from that authorized, or if after the authority is at an end he fills it witli any amount whatever, it is clearly forgery. The doctrine of Rex v. Hart was followed in Reg. v. Wilson, 2 Car. & Kir., 527. There the prisoner was authorized to fill in the amount due on a bill for £150 and interest, then to get the check cashed and pay the bill. Instead of doing this, he filled in £250 and retained part of the proceeds, claiming that it was due him for salary. This was held to be forgery. Where the authority is general, a different rule prevails. Thus, in Reg. v. Richardson, 2 Foster & Fin., 343, the clerk had authority to draw checks his employer’s not only to the order of the creditors of the firm, but to his own. order, for such sums as he deemed necessary to pay the cash disbursements of the business. Upon one occasion he drew a check to his own order for £11 10s, the proceeds of which he appropriated. He was acquitted of forgery and put on trial for embezzlement, the learned judge observing that the prisoner “ could not. be convicted of forgery, inasmuch as, having a general authority to draw, he did not necessarily exceed his authority when he drew the check; and that the criminal act, if any, was the subsequent, appropriation of it.”

In that case, however, the distinction is observed, in the statement of facts, that the clerk was not bound always to draw the checks in favor of a particular creditor, but had authority to draw generally and pay the creditor with cash. In the case at bar the jury were authorized to credit Mr. Crego’s testimony, and to find thereon that Dickie had no authority to draw generally and to pay the creditor with the proceeds of the check so drawn, but that his-authority was strictly limited to drawing in favor of each particular creditor for his particular bill. That is, to pay each creditor only by check and to fill in such check only the amount of such creditor’s bill. There was in reality no general authority. It is-true the special authority was not limited to one creditor or to one-specified amount. But there is no distinction in the principle-upon which deviations from specific authority are held to be forgeries. The special authority here extended over several subjects, but each subject stood-by itself and the limitation as to eac-h was clear and well-defined. There was no authority, either gen era! or special, which authorized Dickie, for any purpose whatever, to fill in any one of these twelve checks with a single dollar except to pay the draft or bill of some one of the specified persons or corporations; none, certainly, to fill in a single dollar for his om purposes

In the very able brief which Mr. Closson submits in behalf of the defendant he makes this claim:

“ It is not necessary to argue that forgery can only be committed with a pen, or some similar instrument; and that,. unless the-prosecution can point to some writing on this check and say that, that particular writing in some way added to or altered the legal effect of the check, and that the words or figures so written -were-words or figures Dickie’s pen had no right to put there, Dickie did. not forge the check, whatever he did with the proceeds.”

We agree with this view of the case, but we think the prosecution had a right to go to the jury upon the proposition that the-words “ two hundred and twenty-five dollars ” were words which Dickie’s pen had no right to put in this particular check. There-was no draft or bill before him for that amount at the time he inserted those words. Their insertion was wholly outside of the-authority conferred. Even if a draft from the Illinois agent for $200 had been before him, his authority was limited to that specific sum, and if he had inserted $225 with a view to misappropriating the surplus, he would have been guilty of forgery. ^ Is-he any the less guilty if he inserts the $225 without any bill being: before him and appropriates the whole amount ? There was no general authority as to amount any more than there was as to individuals. The amount was limited to the face of each draft or bill presented, neither more nor less. And the general authority to pay drafts or bills of these particular persons was limited to payment in one particular way, and in that only, namely, by filling in one of the twelve checks the exact amount called for, and delivering such check properly endorsed to the creditor. Thus the authority conferred was the same, in substance, as a special authority to pay each of several persons a varying but liquidated amount, and to so pay it in a manner involving a purely clerical act. To fill in one of these checks, therefore, without regard either to the individuals covered by the authority, or the amount of their claims; in other words, to fill in an arbitrary sum, having no relation whatever to the authority conferred, was a forgery, if done “ with intent to defraud; ” and the insertion of the word il currency,” the blank endorsement, and the drawing of the mane)'f at the bank, were evidences of such intent to defraud.

The principle of the English cases seems to have been general^ followed in this country. Wharton Criminal Law (8th ed.), §§ 671, 672; People, v. Graham, 6 Park., 135; Wilson v. Commissioners., 70 Ill., 46; State v. Maxwell, 47 Iowa, 454; Biles v. Com., 32 Pa. State, 529; State v. Kroeger, 47 Mo., 552; State v. Flanders. 38 N. H., 324. The only cases where a doubt is expressed as to the rule are Putnam v. Sullivan, 4 Mass., 45, and Van Duzer v. Howe, 21 N. Y., 531. These, however, were civil actions upon paper which was fraudulently used, or in which the blank amount was fraudulently increased beyond the sum authorized. They were properly decided upon the estoppel principle, and the doubts which were expressed upon the point in question proceeded upon the mistaken idea that if the paper was forged in the sense of the criminal law, it would be illogical in a civil action to hold the persons who signed it But there is nothing incongruous between a definition of forgery upon which the guilty agent may be punished criminally, and a civil rule that, notwithstanding the forgery, one who signed the paper in blank, entrusted it to such guilty agent and conferred upon the latter the power of defrauding the innocent, shall suffer rather than the victim. We think, therefore, that the appellant’s main proposition is untenable, and if the case stood upon that alone, we should feel constrained to affirm the judgment.

But we think there was error prejudicial to the defendant in permitting Mr. Orego upon his evidence in chief to testify to the discovery of shortage in Dickie’s accounts generally to the amount of about $2,775. This was doubtless admitted upon the question of fraudulent intent, but it had no just bearing upon that question. It simply tended to show that Dickie was a faithless cashier and that for an indefinite period he had been robbing his employers. But under this indictment the fraudulent intent was confined to the particular forgery charged, and that depended not at all upon Dickie’s past misconduct in other matters, but largely upon the purpose with which he obtained the $225 in question.

The methods resorted to by Dickie to procure those $225, the insertion of the word “ currency ” in the check, the fact that no-entry of it appeared in the check book or M the cash book, that, it was not used in whole or in part for the business, that it was-not accounted for in the cash entries of the day when the money was obtained, and his flight almost immediately after the transaction, were all admissible upon the question of intent." But past larcenies by means of false entries, or fraudulent misappropriation of other moneys entrusted to his keeping, were surely not admissible. The proof was not even of offenses of the same nature committed at the same time tending to show a general purpose to-misappropriate the employer’s moneys by similar means. Indeed,, this particular check seems to have been the only one which Dickie used contrary to his instruction. For the following question was put to Mr. Crego and the following answer given :

“ Q. The question of the juror is, taking the check book and adding together all the checks and comparing them with the-vouchers, including those that have not been returned, how does-your bank account stand ? A. There was a difference of this-check of $225, and that only."’

Other points are made by the appellant which we need not. consider. But as the case will probably be tried again, we ought to say that the observation made by the learned judge to the defendant with regard to a certain book was one which was likely . to affect the minds of the jury. The observation was as follows r.

“You know that you kept that book; you know perfectly well what you kept it for; you know perfectly well what it represents,, probably not absolutely and definitely; you could give such information if you meant to; there is no doubt in my mind.”

This was in effect a judicial expression against the candor of the defendant, which, in a balanced case, might turn the scale-against him. Standing alone, and in view of all the facts in this case, we do not think it would be sufficient to justify the granting of a new trial, but it would certainly have been better had the observation been turned' into a question and the defendant, asked why, if he kept the book and was necessarily familiar with its contents, he could not give the information called for.

Upon the point secondly considered, however, the conviction- and judgment should be reversed and a new trial granted.

It seems to me, from an examination of this record, that the-defendant was convicted really because of a larceny, although indicted for forgery, and, as there must be a new trial, it may not. be without profit to consider one point in the case. I think that the defendant’s story that he had authority to fill out the check in question, and that it is not true that the only authority to fill out these checks was to pay the bills of two consignees and those óf transportation companies, is very strongly supported by the fact that the check for $100 has never appeared, and doesnot appear to have ever been used, and that the check for $225 in question was really filled out for the purposes testified to by the defendant. The complaint admits that the necessary disbursements paid by the defendant on that day were greater than the amount of the-$100 check, and the only money that he had to pay them with, so far as appears by the evidence, was the proceeds of the $225 check. It is true it is stated that the defendant had access to the money drawer, but there is no evidence that on this day it contained one cent of money. It is not by any means a clear case, and the story of the complainant is, to say the least, in some of its. aspects, somewhat extraordinary.

Andrews, J., concurs; Van Brunt, P. J., concurs in result.  