HUPP v. UNION PAC. R. CO. (Supreme Court of Nebraska, 1916. 99 Neb. 654, 157 N. W. 343, L. R. A. 1916E, 247.) Action by Rachel Hupp against the Union Pacific Railroad Company. From a judgment for the defendant, plaintiff appeals. PARRIOTT, C. June 12, 1907, one Henry F. Meyers assigned his salary, not yet earned, as an employé of the defendant, to the plaintiff in the sum of $68 to secure the payment of a promissory note. November 7, 1907, Meyers was declared a bankrupt. The indebtedness in question was listed in the bankrupt proceedings, and said Meyers was duly discharged in said bankrupt proceedings on the 24th day of February, 1908. On the 29th day of April, 1908, the plaintiff notified the defendant of said assignment, and on the 20th day of May, 1908, demanded payment thereof of the defendant. It is admitted by the defendant that, at the time of said demand, the defendant was indebted to the said Henry F. Meyers in the sum of $68. Before the commencement of this action, the said Henry F. Meyers obtained a judgment against the defendant for the amount that was alleged to have been assigned to the plaintiff, and in said action the defendant answered, alleging that the money in question was claimed under the assignment to Rachel Hupp. Said judgment and costs were paid by defendant. At the conclusion of the introduction of evidence, both parties asked for an instructed verdict, whereupon the court entered judgment for the defendant. The principal question presented herein is whether or not the debt, alleged to be due plaintiff, by reason of the assignment from Meyers, was discharged in the bankrupt proceedings. The wages in question were earned after the adjudication in bankruptcy of said Meyers. The employé had a legal right to assign his future wages, and the assignment created a lien upon the wages earned up to the time of the bankrupt proceeding; but the plaintiff seeks to enforce the lien against the wages earned after such proceeding. Under the rule laid down by the weight of authority, the plaintiff's debt was discharged in bankruptcy. The assignment created no lien upon the wages of the employé until such wages were really earned, and, the debt having been discharged before the wages were earned, it follows that at the time of the commencement of this action the plaintiff had no right to recover against the defendant by reason of such assignment. The above proposition is fully sustained by the decision in the following cases: In re West (D. C.) 128 F. 205; Leitch v. Northern P. R. Co., 95 Minn. 35, 103 N. W. 704, 5 Ann. Cas. 63; In re Home Discount Co. (D. C.) 147 F. 538; In re Lineberry (D. C.) 183 F. 338. The judgment of the trial court should therefore be affirmed. PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed, and this opinion is adopted by and made the opinion of the court. Affirmed. Chapter I. Forgery. II. III. PART VIII CRIMES1 Obtaining Money or Property under False Pretenses. (Supreme Court of Louisiana, 1919. 145 La. 514, 82 So. 686.) * * MONROE, C. J. * The essential elements of the charge of forgery (including falsely altering with the intent to defraud) are: (1) A writing in such form as to be apparently of some legal efficacy; (2) an evil intent of the sort deemed in law fraudulent; and (3) a false making or altering of such instrument. Bishop on Criminal Procedure, verbo "Forgery." Or, according to Dr. Wharton: “To sustain an indictment for forgery, it is generally necessary that the instrument alleged to be forged should be one which would expose a particular person to legal process"-though apparent legal sufficiency is enough, it not being required that such suit should have in it the elements of ultimate legal success. Wharton's Cr. Law (9th Ed.) vol. 1, pp. 616,617. HARMON v. OLD DETROIT NAT. BANK. (Supreme Court of Michigan, 1908. 153 Mich. 73, 116 N. W. 617, 17 L. R. A. [N. S.] 514, 126 Am. St. Rep. 467.) A voucher warrant having been issued by a railroad company to a coal company in Columbus, Ohio, in payment for a coal bill, one of the railroad company's trusted employés sent the papers to Chicago, where the name and address of the payee on the voucher was changed to that of a Chicago coal company, and, the altered papers being returned to the office of the railroad's auditor of disbursements, a new warrant was issued, payable to the Chicago concern. This warrant 1 Crimes not having an intimate connection with business are not included in this work. was signed and mailed to the Chicago payee, and was later cashed by a Denver bank and forwarded to a bank in Chicago, which forwarded it to a bank, which collected the same from defendant, the drawee bank, after a guaranty of prior indorsements had been made thereon; defendant taking no precautions to ascertain the identity of the payee before paying the check. The question was raised whether the indorsement of the name of the fictitious payee was forgery. Judgment for defendant, the bank. * GRANT, C. J. * *If the payee named in the paid warrant was a fictitious person, the indorsement in the name of such fictitious party is in effect a forgery. * * * If the G. E. Fairbanks Coal Company and G. E. Fairbanks, treasurer, were fictitious parties, the indorsement was a forgery. If they were real parties, the indorsement by any other without authority would be a forged indorsement, and would not excuse defendant's payment. It was incumbent upon it to show the existence or nonexistence of such a payee, and that the Denver bank took the proper means to identify the payee. It failed to sustain this burden, and therefore the verdict and judgment are set aside, and a new trial ordered. UNITED STATES v. LONG. (Circuit Court of the United States, Southern District of Georgia, 1887. 30 F. 678.) Indictment for forging signature on money order. SPEER, J. (charging jury). A useful, and indeed an essential, branch of the postal service of the government is the transmission of funds by means of "money orders." The law provides that, to promote public convenience, and to insure greater security in the transfer of money through the mails, the Postmaster General may establish and maintain, under such rules and regulations as he may deem expedient, a uniform money order system at all suitable post offices. A money order is an order for a specified sum of money, not less than one cent nor greater than fifty dollars, made out at a money order office, on a blank form prescribed by law and the post office, and payable at some other money order office. The person who purchases the money order is known as the remitter, and the person to whom it is payable as the payee. A money order is issued along with what is termed in the postal service a letter of advice. This is a letter or notice, partly printed and partly written, bearing the same number and date as its corresponding money order, and is issued to the paying postmaster, for the purpose of informing the latter as to the name and residence of the remitter and the payee of the order. It is used to assist the paying postmaster in the identification of the payee of the order. You will have in evidence a specimen of the papers, and you already understand their nature. To protect the integrity of its money orders, the following statute has been enacted by the government: "Any person who shall, with intent to defraud, forge * * * * any order in imitation of or purporting to be a money order issued by the Post Office Department, or any of its postmasters or agents, or any material signature or indorsement thereon; any person who shall, with intent to defraud, pass, utter, or publish * * as true any such false, forged or altered money order, know ing the same, or any signature or indorsement thereon, to be false, * * * shall be punished by a fine of not more than five thousand dollars, or by imprisonment at hard labor for not less than two years, and not more than five years." And the accused is charged by indictment with the violation of this law. There are two counts in the indictment: The first charging the forgery of a material signature, that of John G. Long, the payee of the order, and the other charging that the prisoner, with intent to defraud, passed the forged money order, knowing the same to be forged. The prisoner pleads not guilty, and thus is formed the issue which you are trying. You will attend, gentlemen, to the instructions of law which I will now give you. * Forgery is defined by Sir William Blackstone to be the fraudulent making or alteration of a writing, to the prejudice of another man's right. 4 Comm. 247. In order to find the intent to defraud a particular person, it is not necessary that there should be evidence to show that the accused had that particular person in contemplation at the time of the forgery. It is sufficient if the forgery would have the effect of defrauding him. * In the case of a paper, like this, if there is sufficient proof that the paper has been forged, and the question is, Who did the forgery? a strong presumption necessarily arises against the party in whose favor the forgery is made, or who has the possession of it, and seeks to derive benefit from it. One may be guilty of forgery if he fraudulently signs his name, although it is identical with that of the person who should have signed. Thus, if a bill of exchange is payable to A. B., or order, and it comes to the hand of a person named A. B., who is not the payee, and who fraudu lently indorses it for the purpose of obtaining the money, this is a forgery. To apply to this case: If this money order had been payable to John A. Long, and it came by mistake of the mails or otherwise to the hands of the prisoner, John A. Long, who, knowing it was not intended for him, but for another John A. Long, indorsed it, or signed the receipt for it, with the fraudulent purpose to get the money on it, he would be guilty of forgery. Much more, then, would he be guilty if he fraudulently signed the name of John G. Long. This fraudulent purpose may be sufficiently proven by his acts; and if the facts are sufficient to put him on notice of the fact that the money order was intended for another, and not for him, then the consequence of his act is to defraud the other; and one is presumed to intend the consequences of his own acts. If the accused falsely represented himself to be the payee of the money order, it is a circumstance tending to impeach his good faith, and such representation may be as well effected by acts as by words. Thus, if he presented himself before the paying official, and, presenting the order, signed it as if he were the person for whom it was intended, he would as well defraud as by declaring that he in truth was the payee. While the guilty knowledge of the accused must be clearly shown to the satisfaction of the jury, it is not absolutely necessary that there be positive evidence, provided it is clearly shown from the facts and circumstances of the case. Nevertheless it must be satisfactory to the jury. If the prosecution relies on the confession alone, the prisoner is entitled to the full effect of that portion of the confession which goes in his favor; but, if there is other evidence upon which the prosecution can with justice insist upon a conviction, the jury may, if they think proper, convict, notwithstanding the confession alone would be insufficient. In other words, if the prosecution uses the declaration of the prisoner, the whole of it must be taken together. One part cannot be selected, and the other left; and if there be no other evidence incompatible with it, the entire declaration of the prisoner must be taken as true. But if, after the whole of the statement of the prisoner is in evidence, the prosecution is in a situation to contradict any part of it, it is at liberty to do so, and then the statement of the prisoner, and all the other evidence, must be left to the jury for their consideration, precisely as in any other case, when one part of the evidence is contradictory to another. Roscoe, Crim. Ev. 55. * * * I will now, gentlemen of the jury, sum up the facts in evidence for your assistance. It is in proof that on the 24th of November, 1885, Mr. Dewhurst, postmaster at St. Augustine, issued this money order for Annie Benide, for $5.50; John G. Long, the mayor of St. Augustine, who was then in Savannah, being the payee. The usual letter of advice was issued, and reached the postmaster at Savannah. With the money order was inclosed a letter, directed to Mr. Long, reminding him of the promise he had made to assist Annie Benide's daughter, who was, it seems, then in jail in Savannah, and requesting him to appropriate the money for the benefit of the latter. There was also inclosed this written order: "St. Augustine, Fla. "Mr. Samuel Osbon-Dear Sir: You will oblidge me, Mrs. Bendee, by giving Mr. Long that $17 I sent, he going to look out for my daughter for me. Mrs. Bendee.' Indorsed: "Samuel Osbon, 76 South Broad St., Savannah, Ga., in care Dr. Dunkin." John G. Long was requested also to collect this order, and appropriate the proceeds for the benefit of Annie Benide's daughter. John G. Long never received the letter or its inclosure. It was delivered at the house of John A. Long, the accused, and to the wife of the accused. She thereafter delivered it to her husband, and he kept the letter by him for some time-three weeks or a month-and then turned the written order over to one Pennington, and the accused himself presented the money order to Mr. Black, the assistant money order clerk, and collected the money on it. The name of John A. Long, changed to John G. Long, is signed to the receipt on the money order. I charge you, gentlemen, that the signature to a receipt on a money order is a material signature, in the meaning of the law. John A. Long testifies that he signed the receipt in his own name. He did not, he says, put the G. there. Mr. Black, the money order clerk, testifies that he remembers the person who presented the money order; but he is not able to identify Long as that person. Long testifies that he was the person who presented it; and Mr. Black testifies that he said to that person, "The letter of advice directs the money to be paid to John G. Long, and I cannot pay it to you unless you change the signature from John A. to John G.," and that the person who presented the order then made the change in his presence, and stated to Black that he was the person to whom it belonged. Now, on this evidence, with the rest of the evidence, you must say on your oaths whether the accused fraudulently wrote the signature, John G. Long, with the intent to defraud John G. Long, and did he BAU.& DIL.B.L.-55 |