Petitioners Briefo — Gilbert v. United States

IN THE SUPREME COURT OF THE UNITED St##ES— rvs a

OCTOBER TERM, 1961

No. 178

Petitioner,

Usiren Stat P AMERICA,

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

ROR THE NINTH ClLRECUI

PETITIONER'S OPENING BRIEF

Ansert A. Dors

rel Wy Manchéster Avenue

Los Angeles 45, California

Wirix, Rissman, Oxranp & Posxer

rep ORRAND

3 bee

South Spring Street

Los Angeles 12. California

Attorne mys fOr Pi fofiope?

INDiCN

SUBJECT INDEX

PETITIONER'S Opening Brier

Opinions Beiow 2.0...

Grounds on Which the Jurisdietion of This Court

Is Invoked aa page Rabaemenes

Constitutional Provisions and Statute Invoived |

Questions Presented for Review

Statement of the Case... Laidencaenatoesetaanss sae

Summary of Argument ..........00000..............

ARGUMENT:

I—It is not forgery under IS USC 4°85 when

the instrument shows on its face that the

signer does not purport to be signing the

signature of another person but is acting

as agent or trustee 2...

1]—Petitioner was denied due process of law

because he was convicted and the convietion

affirmed in the absence of evidence 0.

CONCLUSION J... ES a el le Bi A araor Rem rn e Are etc Aa

Tapie or AttTHoritics Citep

CASES:

Barron v. State, 12 Ga. App. 542, 77 S.E. 214 .

Colé: vi Arkansas, baa) 2, 196 Gi cic

Commonwealth v. Baldwin, 11 Gray (77 Mass.)

oT. 4k Am: Lee es ee eee Ay col

Cunningham v. United States, 272 F.2d 791...

Dexter Horton National Bank ve United Staty s

Fideliiy & Guarantees Company, 149 Wash.

Sha, ZIG PS Fa 2x = ER Ah Pollen ek hans toes at re:

Page

INDEX

Page

Garner Vv. Lowsiana, —— U.S. ——. 20 U.S. Law

Week 4070 MP2! La Fach eM hea ‘ fae 17

Goucher v. State, W323 Neb. 352, 204 NW, O67 .. 1D

Crreathouse v. United States, 170 F. 2d ri) te os 11

Tinie rnational Finance Corporation ‘'F P, ople’s

Bank of Keyser, 27 F.2d 023, affd. 30 F. 2d

cert. Gen 279 UR ae ; 10

Mallory vy. State, 179 Tenn. 617, 168 SW. 2d yi 16

Morgan vy. State, 77 Ga. App. 164, 48 S.E. 2d 115 13

Offutt, Ex Parte, Okl. Cr. App., 234 Pac, 222 .... 1D

Pasadena Investment Co. y. Peerless Cas. Co.,

132 Cal. App. 2d 328, 282 P, 29d 194. 13

People v. Bendit, 111 Cal. 274, 43 Pae. 901 11-12, 13, 14

People vy. Mann, 75 N.Y. 484, 31 Am. Rep. 482... 1h

Reqina v. White, 2 Car. & K. 404 00 10

Samples v. Milton County Bank, 34 Ga. App. 248,

Set PUM RAO ca cecil crs Oe NO ae 13

Schulte v. State, 41 Okla. Cr. (73, 271 P. 1045 .... 16

Selvidge v. United States, 290 F. 894 12

Simms v. State, 116 Tex. Cr. 97, 32 S.W. 2d 852 .. 16

State v. Kinder, 315 Mo. 1314, 290 SW. eee 14

State v. Lamb, 198 N.C, 423, 152 S.E. ae 15

State v. Taylor, 46 La. Ann. 1322, 16 So. 190 __. 14,15

State v. Wilson, 28 Minn. 52,9 N.W.28 14

Stirone v. United States, 361 U.S, 212 ate ph 9

Torrance National Bank y. Aetna Casualty and

Surety Co., 150 F. Supp. 6838, affd. 251 F. 2d

nang ee at a Aik A a ledpey idle Rie ews ono SE 11,13

Thompson v. Louisville, 362 U.S.199 4, 22

Pung, Ik 1¢, 20 Pek G12 goo er 10

United States v. Bufalino, 285 F. 2d a 17

United States v. Carabasi, 292 F. 20 Wee | & ee Be

United States v. Pechenik, 236 F. 20 S84 22

United States v. United States Gypsum Co., 333

Ee Semen ONO a nok Pd Wai RIN tale 29

West v. Mears, 17 Cal. App. 718, 121 P. 700 ........ 21

Windsor, Charles, 6 Bert & S522... 10

INDEX ill

Page

STATUTES AND RULES:

Calif. Civil Code. Tiss Bema? 20

Calif. Civil Code, 1205 . 20)

Cali. Civil Code, 1216 a |

Calit. Civil Code. 1217 ; ai

Calif. Code of Civil Proeedure. 440 ms 20

Calif. Code of Civil Procedure, SOE : 20

Cali. Government Code, 27287 sepa tee eh Mb a 20

Rule ST0b). Federal Rules of Criminal Pro-

cedure ag ; ai Man Es sane xa are nd ba icon 2

Rule peated fd Riles, Siij Peime Court meer ee pind 2

IS USC 495 ‘ Hine apt, ncn aS, sae oa f

i has thd ace MPO TT Re Res Nene eG an a aretet geet 5

2 he”: F54(4) Neer Ct Seo pee 2

United States Constitution, Filth Amendment. 2

TEXTS:

2 Am. Jur. GSO (Forgery, © 10). eee, 9

St) A ae OO 18 OCRUTY, CS ye Ot en). 9

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

No. 178

IS. Mine Ganneiner,

Petitioner.

—vV.—

Unirep Srares of Anteriea.

ON WRIT OF CERTIONARL TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITIONER'S OPENING BRIEF

Opinions Below

Trial in the District Court was by jury.

The opinion of the court below (RR. 10S) and on petition

for rehearing (R. 127) are reported at 201 F.2d 586 and

097, respectively.

Grounds on Which the Jurisdiction of

This Court Is Invoked

The judgment of the Court of Appeals was filed and

entered on March 30, 1961 (RL 126).

Timely filed petition for rehearing was denied on May

19, 1961 (R. 129).

The petition for writ of certiorari was filed on June 10),

1961, June 1S being a Sunday.

»

Certiorari was granted on October 9, 1961.

This Court has jurisdiction to review the Judgiment in

question by writ of certiorari under 28 USC 12541). Rule

22(2) of this Court and Rule 37¢(b), Federal Rules of Crim.

inal Procedure.

Constitutional Provisions and Statute Involved

The Fifth Amendment to the Constitution provides in

pertinent part:

“No person shall be... deprived of life, liberty or

property, without due process of law; ...”

< )

18 USC 495 (62 Stat. 711):

“Whoever falsely makes, alters, forges, or counter-

feits any deed, power of attorney, order, certificate,

receipt, contract, or other writing, for the purpose of

obtaining or receiving, or of enabling any other person,

either directly or indirectly, to obtain or receive from

the United States or any officers or agents thereof, any

sum of money; or

“Whoever utters or publishes as true any such false,

forged, altered, or counterfeited writing, with intent to

defraud the United States, knowing the same to be

false, altered, forged, or counterfeited: or

“Whoever transmits to, or presents at any office or

officer of the United Statcs, any such writing in sup-

port of, or in relation to, any account or claim. with,

intent to defraud the United States, knowing the same

to be false, altered, forged, or counterfeited—

“Shall be fined not more than $1,000 or imprisoned

not more than ten years, or both.”

©”

Questions Presented for Keview

1. Ts it a denial of due process of law for one te be con-

victed of forgery of government refund cheeks and that

conviction affirmed on a theory that the cheeks were re-

ceived by the defendant as a part of the filing of fraudulent

income tax returns when there was no charge or evidence

that the income tax returns were fraudulent and where the

income tax returns were not introduced in evidence at all

and in face of the fact that the payvees of the eheeks had

signed a written power of attorney which gave the defendant

in hace verba the right to endorse and collect the checks ?

2. Is it forgery within the Incaning of 18 USC 495 when

the endorsement of the check shows on its face that the

signer does not purport to be signing the signature of the

payees but rather that he is signing their names by himseif

as trustee?

Statement of the Case

The indictment (R. 1-16) was in 35 counts, some of which

(1 through 11 [R. 1-7] and 23 through 35 [R. 11-16))

charged violation of 26 USC 7206(2), others (12 through

17 [R. 7-9} and 21 and 22 [R. 11}) charged violation of

18 USC 495 and still others (18 through 20 [R. 9-10])

charged violation of 18 USC 1001. The jury found peti-

tioner not guilty on counts 1, 2, 3 and 35 (R. 21-22 and

guilty on counts 4 through 34 (ibid.). The court below

reversed and remanded as to counts 4 through 20 and 23

through 34 (R. 126) and affirmed as to counts 21 and 22

(thid.). Only the judgment as to counts 21 and 22 are

involved in the writ before this Court.

4

Counts 21 and 22 (R. 11) charge that “(o)n or about

June 2, 1998, ... the defendant R. Milo Gilbert knowing!y

and wilfully’ forged on (two) United States Treasury

check{s) ... in the amount(s) of ($848.11 and $556.04.

respectively) the endorsement(s) and signature(s) of the

payees, Daniel Hl. and Chalrene (sic) R. Bartfield, for the

purpose of obtaining and receiving said amount(s) from

the United States, its officers and agents.”

Thisgalled into play only the first paragraph of 18 USC

499 and only that portion thereof which proseribes forgery.

The Government's entire case on Counts 21 and 22, in-

cluding cross-examination, covers but twelve and one-half

pages of the 1172 pages of Reporter's Transcript. It ap-

pears in the printed record from pages 41 through 50. It

consists of the testimony of Mr. Daniel Bartfield (R. 41-46),

Mrs. Charlene Bartlield (R. 46-49) and two exhibits, Nos.

31 and 32 (R. 50, 88, 87). During Mr. Bartfield’s eross-

examination, defendant's Exhibit M (R. 106-107) was like

wise admitted into evidence (R. 44).

Exhibits 31 (R. 50, 83) and 32 (R. 50, 87) are the two

cheeks in question. They show on their front sides that they

are made payable to

“DANIEL H & CHARLENE R BARTFIELD

“e/o R MILO GILBERT”?

* There was no allegation of falsity as seemingly required by 18

USC 495.

* As distinguished from “mak(ing), alter(ing) or counter-

feit(ing)”. And compare Counts 15, 16 and 17 which charge under

the third paragraph of section 495 (R. 89),

* On Exhibit 32, Charlene is spelled Chalrene, and Milo is spelled

Mile.

5

and on their reverse sides thet Chey are endorsed

“Daniel HL Barttield

“Charlene R Barttield

*R Milo Gilbert. Trustce” *

exhibit MOR. 44. 106-107) i. a special power of attorney

admittedly signed by Mr. Bartfield R. 44.45) and by Mrs.

Barttield (R. 44.48) making petitioner their “true and law-

ful attorney for (them) and in (their) name, place and

stead and for (their) use and benefit: (a) For all matters

*The pictures of Exhibits 31 and 32 appearing in the printed

record (R. 83, 87) are not pictures of the actual exhibits. Phey

are pictures of copies obtained from the Treasury Agent at Los

Angeles when the actual exhibits were not found by the Clerk of

this Court among the exhibits transferred to this Court by the

Clerk of the Court of Appeals. See telegram dated November 9,

1961 from the Cierk of this Court to petitioner's counsel, letter

dated Nov. 17, 1961 from petitioner’s counsel to the Clerk of this

Court, letter dated Nov. 25, 1961 from the Clerk of the Court

below to the Clerk of this Court, letter dated Dee. 1, 1961 from

the Clerk of this Court to petitioner's counsel, letter dated Jan. 16,

1962 from petitioner's counsel to the Clerk of this Court. letter

dated Jan. 19, 1962 from the Clerk #fthis Court to petitioner's

counsel, As will be neted the word “by” Woes not appear in front

of the name of R. Milo Gilbert in/the picture as was set forth

in Question 2 of the petition for writ of certiorari (pg. 3) and

considered to have been the case in the body thereof (pg. 4). As

the Argument below will show, this does not alter the legal ques-

tion involved, for even without the word “by”, the endorsements,

especially in the light of the way the payee portions onthe frout

side of the checks are made out, still show that Gilbert: was the

person who was signing and there was no pretense that anyone's

signature was being duplicated. Nor does this alter the case

factually because all through the case the parties viewed the en-

dorsement as “Bartfields by Gilbert, Trustee”. This was so in

the trial court by the Court OR. G3, 64) and counsel (R. 20, 63;

Original Reperter’s Tr. 93) | not reproduced in the printed record

because at the time of the designation, the instant problem was not

known to exist} ), in the court below bxathe Court (R. 115) and

Counsel (Appellant's Open. Bro 45: Government's Br. 23) and

in this Court (Petition, pp. 3 and 4; Govt’s Br. in Opposition, 3)

until receipt of the printed record with the pictures therein as

explained above.

6

pertaining to (their) ... Income Taxes and Tax Returns

for the Calendar vears 1954 to.1997 inclusive. This includes

... the filing of necessary refund claims; and the receiving,

depostting, endorsing and otherwise negotiating such re-

fundicheeks at his sole discretion, ineluding the right of

offset.”

It was stipulated that the endorsements were by peti-

tioner and not by the Bartfields (R. 43, 47).

Acknowledging that the signature on the power of attor-

ney was his (R. 44,45), Mr. Bartfield also testified that he

had not authorized petitioner to sign his name or endorse

the cheeks, that he had not appointed, nor was, petitioner

his trustee (R. 43), that he does not remember signing the

power of attorney nor petitioner having asked him to do so

(R. 45), and that he did not appear before a Notary Publie

and tak oath that he had executed the power of attorney

(ihid ts. Bartfield testified in similar vein (R. 47, 4s,

49) and likewise acknowledged that the signature on the

power of attorney was her own (R. 48).

On this evidence the jury convicted of forgery and, as

seen, the court below affirmed.

The trial court refused (R. 66,76) to give the instructions

requested by petitioner (R. 20) to the effect that

“One who executes an instrument purporting on its

face to be executed by him as agent of a principal

named therein, when in fact he has no authority from

such principal to execute said instrument, is not guilty

of forgery.” ®

‘The printed record (R. 20) reads “fer such principal ete.” This

is a typographical error. The original reads “from such principal

ete.” (Clerk's Tr. 166).

and

"A check endorsed os follows Hamme oof pavee by

other as trustee, does not constitute a forged instru:

ment under ULS.C. Tithe TS, Section 495."

The refusal was appropriately objected to CR. 76).

Summary of Argument

( 1. Petitioner was charced with borgery of the endorse-

(ments on two Government cheeks. The checks were payable

to “Daniel Hoand Charlene Ro Bartfield eo Ro Milo Gil-

bert’. The endorsements were “Daniel IL Bartfield Char-

lene Ro Barttield Ro Milo Gilbert, Trustee” or “Daniel H

Bartfield Charlene R Bartfield by Ro Milo Gilbert, Trustee”,

The endorsements show on their face and petitioner stipu-

lated that the handwriting of all three names was that of

petitioner, Under these circumstances the erime of forgery

Was not committed. Even if petitioner did not have an-

thority to sign the Bartfield names, a proposition petitioner

stoutly disputes, there was no forgery because there was

no pretense, no covering up, no paling off nor attempt to

have the Bartfield names considered as having been signed

by the Barttields, it being clear that petitioner wrote those

names, Accordingly, if any crime was committed, it was not

forgery. At the most it would be a false representation of

authority to sign; this is not forgery.

2. There was no evidence nor even contention by the

Government that the checks were not proper refund checks,

nor that the Bartfields were not entitled to the money the

cheeks represented nor that petitioner got the money nor

that if petitioner did get the money, he was not entitled

thereto. The two counts involving these checks were caught

up in a trial involving a multitude of other counts most

8

of which charged the preparation of false and fraudulent

income tax returns, but there was no charge either by way

of a count or counts in the indictinent and no evidence of

any kind that any Barttield returns were falsely or fraudnu-

lently prepared, Nevertheless, the Court below, even in

the face of a power of attorney admittedly signed by the

Bartfields, though they did not remember signing it, sus-

tained the conviction “in view of the substantial evidence

to support the fraudulent returns which were the basis of

the refunds which resulted in the tssuance of the checks

upon which Counts 21 and 22 were based.” There is simply

no evidence in the record to that effeet. Indeed, the returns

to which the court was apparently referring were not even

introduced into evidence nor was there any evidence, even

though the returns were not introduced, that they were not

correct. Accordingly, petitioner's conviction was sustained

in the face of a complete absence of evidence and on the

basis of a charge not even made. This is more, therefore,

than simply there not being substantial evidence to sup-

port a conviction; this is a denial to petitioner of due

process of law.

ARGUMENT

I

It Is Not Forgery Under 18 USC 495 When the Instru-

ment Shows on Its Face That the Signer Does Not Pur-

port to Be Signing the Signature of Another Person But

Is Acting as Agent or Trustee.

Petitioner was convieted of forgery although anyone by

merely looking at the endorsement could at once see that

the signer was not purporting to falsify another person's

signature, but that he was telling the whole world that he,

R. Milo Gilbert, was the person whe was signing. There is

no pretense that anyone's signature was being duplicated.

This is especially clear when one examines the fae of the

cheeks (CR. 50,85, 87), they being payable to “Daniel H&

Charlene R Barttielde o R Milo Gilbert”.

Under these cirenmstances, the law is and should be that

no forgery is committed... The principle is thus stated in

37 CJS, Forgery, \8, page oS:

“An agent may commit forgery by signing an instru-

ment jn disobedience of his instructions or in improper

exercise of authority, but one who exeeutes an instru.

ment purporting on its face to be executed by him as

an agent, when in fact he has no authority to execute

such instrument, is not guilty of forgery.” ’

*" Whether, assuming the requisite knowledge and intent, some

other offense is committed, is beside the point. One cannot be

charged with one offense and be found guilty of another (Cole v.

Arkansas, 333 U.S. 196; Sttrone v. Cnited States, 361 US, 212).

7It will be noted that this rule is precisely in accordance with

the instructions requested by petitioner R. 200, but refused by

the trial court (R. 66). 23 Am. Jur, Forgery, § 10) page 650, is

in accord.

10

The overwhelming weight of authority, both State and

Federal, from the very earhest to Just last year, supports

this rule of law.

a. FreperaL Cases

In re Tully, 20 Fed. 812 (SD NY 1884), held that a check

signed “per pro. the Preston Bank Company; G. T. Tully,

submanager.” was not a forgery whether Tully had anu-

thority to draw such a check or not because (pg. 815) “the

signature by him in his own name ‘per procuration,’ ete.

showed on its face all that it purported to be.” The court

found this to be the English law and referred to two Eng-

lish eases, Regina v. White, 2 Car. & K. 404 and Charles

Windsor, 6 Bert & S, 522. From the latter the court quotes

(pg. 817) from the opinion of Cockburn, C.J.:

“* . We must take the term “forgery” in the

extradition act to mean that which by universal ac-

ceptation it is understood to mean, namely the making

or altering a writing so as to make the writing or

alteration purport to be the act of some other person,

while it is not.’ ”

and from the opinion of Blackburn, J.:

“*Forgery is the falsely making or altering a docu-

ment to the prejudice of another, by making it appear

as the document of that person; telling a lie does not

become forgery because it is reduced to writing.”

In International Finance Corporation v. People’s Bank

of Keyser, 27 F. 2d 523 (ND W Va 1928), affd. 50 F. 2d

46 (CCA 4 1929), cert. den. 279 U.S. S58, a certificate of

deposit was issued and signed “T. D. Leps, Cashier”. The

court held that this was not forgery, saying (pg. 526):

1]

“2. There was no false making of the certificate

of deposit by another than the person who purported

to sign it. Leps, the casiuer, made it. It is admitted

that the signature to the certificate of deposit is that

of Leps, cashier, the man who purported to sign the

instrument, and that he was actually the cashier of

the defendant bank, as the certificate of deposit stated

he was. Thus ‘the wrong done, where such an instru-

nent is made without authority consists in the false

assumption of authority to bind another, and not in

making a counterfeit or false paper’ (not a forgery ).”

In Greathouse v. United States, 170 F. 2d 512 (CA 4

1948), checks were signed, in the presence of the bank

cashier, “Woodruff Motor Sale Inc., J. W. Greathouse”.

Holding that this was not forgery, the court said (pg. 514):

“.. 2 It is well established that forgery contem-

plates a writing which falsely purports to be the writ-

ing of another person than the actual maker. ,,.

(1)f the writing purpogts or is known to be the writing

of the defendant, it is not forgery for him to sign the

name of another although he signs without the other's

knowledge or consent under the false pretense that

6

he had authority to do so;... ~

~

In Torrance National Bank vy. Actna Casualty & Surety

Co., 150 F. Supp. 638, 689 (SD Cal 1957), affd. 251 F.2d

666 (CA 9 1958), a diversity case, the court, in response

to plaintiff's argument (pg. 639) “that the unauthorized

signing by an agent of his own name as agent constitutes,

a ‘forgery’,” held that People v. Bendit, 111 Cal. 274, 43

* The correctness of the Greathouse decision was affirmed by the

Fourth Circuit in a later decision, Cunningham v. United States,

272 F. 2d 791, 793-794 (CA 4 1959) and followed by the Third

Circuit in United States v. Carabasi, 292 F. 2d 362, 364 (1961).

12

P. 901, was the law of California and early had (py. 640)

“unequivocally articulated the law to be that an instru-

ment signed by the one purporting to have executed it ts

not a‘forgery’.”

Aside from United States vo Carabast, 202 F. 2d 362.

supra, fnos, the latest Federal case on the subject appears

to be Se lridqe Vv. United States, 290 F. S894 (CA 10) decided

May 10, 1961, subsequent to the decision herein by the

court below on the merits, but one week before the denial

of the petition for rehearing. There, the endorsement was

the company’s name by means of a rubber stamp and then

in handwriting, “By Thelma L. Selvidge’. Reversing the

conviction, the Tenth Circuit said (pg. S95) :

“lo... Tt is a rule of general application that an

agent may commit forgery by making or signing an

instrument in disobedience of his instructions or by

exceeding his authority. But when she added her

genuine signature purporting to endorse the cheeks

as the agent of her named principal, although she had

no authority to do so, she was not guilty of forgery.

The endorsements were precisely what they purported

to be; the wrongful act being a false pretense or false

representation of authority. ...

b. State Cases

The state court cases are overwhelmingly in accord with

petitioner's contention. The following listing will demon-

strate.

CALIFORNIA

People v. Bendit, 111 Cal. 274, 48 Pae. 901 (1896). The

writing there was signed “Wm. Cluff & Co. A.B." The

court held there was no forgery, saying (111 Cal. at 276):

“Tt is quite clear that the facts above stated do not

constitute forgery, When the crime is charged to be

the false making of a writing, there must be the mak-

ing of a writing whi h falsely purports o be the writ.

mg oof another, The falsity must be in the writing

itself—in the manuseript. A) false statement of faet

in the body of the instrument, or a false assertion of

authority by which a person is deceived and defrauded,

ix not forgery. There must be a design to pass as the

venuine writing of another person that which is not

the writing of such other person. The instrume t

must fraudulently purport te be what it is mot. And

there was nothing of the kind in the case at bar... 2”

(Italics in original.)

The correctness of the Bendit case was affirmed by the

California appellate court as recently as 1955 in Pasadena

Investment Co. ve Peerless Cas. Co., 82 Cal. App. 2d 52s,

Jal, 282 P. 2d 124.°

GEORGIA

Barron vy. State, 12 Ga. App. 342, 77 S.E. 214 (1913)

(“W. R. Amason, per W.H.B.”).

Samples v. Milton County Bank, 34 Ga. App. 248, 129

S.E. 170 (1925) “Mrs. N.B. Samples, by N.B. Samples”).

Cf. Morgan v. State, 77 Ga. App. 164, 48 S.B. 2d 115

(1948) (false oral representation of authority. to sign

father’s name on cheek which was done in the presence of

the cashier. Hep: Not forgery).

® Bendit’ was likewise followed by the United States District

Court for the Southern District of California as representing the

California law in Torranee Natl, Bank vo The Aetna Casualty &

Surety Co., 150 F. Supp. 638, 640 (1957), supra, affd. 251 F. 2d

666 (CA 9 1998).

14

LovisiaNa

State v. Tanvlor, 46 La. Ann. 1352, 16 So. 190) CES!4)

(Defendant signed the names of a number of persons to

a note and then wrote, “LT was authorized to sign the above

names, [ secured the order. E.R. Taylor.” Held: Not

forgery).

MASSACHUSETTS

Commonwealth v. Baldwin, WV Gray (77 Mass.) 197, 71

Am. Dee. 705 (1858) (note signed “Schauler, Baldwin &

Co.” the payee knowing that the defendant had so signed

and believing him to be a partner in the firm. Held: Not

forgery. | Pg. 198]: “to constitute forgery, the writing

falsely made must purport to be the writing of another

party than the person making it.”)

MINNESOTA

State v. Wilson, 28 Minn, 52, 9 N.W. 28 (1881) (Deed

was signed “James D. Hoitt, by HH. Wilson, his attorney

in fact.” Held: Not forgery (9 NW at 30): “if a person

ign an instrument with his own name per procuration of

the party whom he intends or pretends to represent, it is

no forgery, it is no false making of the instrument, but

merely a false assumption of authority.”) (Italics in origi.

nal.)

Missouri

State v. Kinder, 315 Mo. 1314, 290 S.W. 130 (1926) (Check

was made payable to the order of C. T. Kinder and signed

“Samuel Fowler by Kinder.” Held: No forgery; the mo-

tion to quash the information should have been sustained.)

- s

NEBRASKA

"Goucher v. State, WW Neb. 352, 204 NW. 967 (1925)

(without authority the Courty Clerk signed and had ap- + *

proved a warrant (oY o bill whic did not exist. Held: No

forgery. [Poe. 968): "The words *whoever falsely makes’

generally apply te the false making of the writinglas dis-

tinguished from the contents of the instrument. itself.)

New York

People vi Mann, 7 NY. 484. 31 Am. Rep. 482 (1878)

(To the save effect as*Goaucher v. State, 13 Neb. 252, 204

NW 967, 8 pra).

Nortu Caronina

State v. Lambh, 198 N.C. 423, 152 S.I. 154 (1980) (eheck

endorsed: “M.P. Mitchell, ROW. Lamb, receipt given) by

Lamb when he cashed the check was: * MP. Mitchell by

R.W. Lamb.” Vhe trial proceeded on the theory that the

receipt and the endorsement were to the same effect: that

Lamb was pretending in each instance to aet in the eapacity

of authorized agent. Held: no forgery. “The reason is

(152 SE at 156] that forgery cannot be niediontel of a

writing not intended to be a semblance of something which

it does net purport to be and which is in itself not false.)

OKLAHOMA

Ex Parte Offutt, Ok. Cro App. 234 Pac. 222 (1925)

(Check signed by petitioner as agent of a firm. Held: not

forgery, citing and quoting from State v. Taylor, 46 La.

Ann. 1352, 16 Soe. 190 and People ve Bendit, 111 Cal. 274,

43 P. 901.)

16

Schulte v. State, 41 Okla. Cr. 173, 271 P. 1045 (192s)

(stock certificate was signed

“R. Bess, President

wo’

wm

The Court held there was no forgery [271 P. at 1048]: "It

ix also immaterial as to whether or not he signed the name

of R. Bess, the president of the company, with or without

his authority. When he signed the name of R. Bess as

president and placed his initial “S* under it, he was thereby

showing his agency. The certificate shows to have been

executed by the agenty and we hold that it did not purport

to be an instrument executed by .R. Bess as president of

the gin company ;..."")

TENNESSEE

Mallory v. State, 179 Tenn, 617, 168 SW. 2d 7Sc (1945)

(The endorsement on the check was: “Labor Advocate, by

P. T. Mallory.” Held: not forgery).

Texas

Simms *® State, 116 Tex. Cr. 97, 32 S.W. 2d S52 (1950)

(Cheek signed “R.C. Simms, by George Simms.” Held: No

forgery. [SAS.W. 2d at 853]: “While one who sizns to a

document thename of another by himself as agent thereby

creates an insteument which, if used to defraud, might sub-

ject him to prosecution for swindling, we do not think such

document can be the subject of forgery by¥ the said agent.”)

WASHINGTON

Dexter Horton National Bank v. United States Fidelity

& Guarantee Co., 149 Wash. 343, 270 P. 799 (1928) (checks

made out to his employer were unauthorizedly endorsed :

“Crenshaw & Bloxom, H.N. Howe, Cashier.” Held: not

forgery [270 P. at S01): “the act of Howe in endorsing the

words above quoted upon checks payable to his employer

17

did not constitute forgery cither within any technieal detini-

LO

tion of the word or its popular meaning.”)

From the abeve resume it is seen that petitioner was

not guilty of forgery. The jury should have heen se in-

structed. The court below should have been reversed.

II

Petitioner Was Denied Due Process of Law Because He

Was Convicted and the Conviction Affirmed in the Absence

of Evidence.

Although there is pending before this Court on this writ.

only two counts involving but a single question of law, there

were pending before the trial court 35 counts and before

the court below 31 counts involving many factual situations

and questions of law. The case before the courts below is

an example of how, where there are such a multitude of

issues, facts and documents, the issues on any single count

hecome blurred and resulted, as we will show, in confusing

the various counts and of convicting on one count (here,

two, Counts 21 and 22) because of the evidence and charge

of other counts (Cf. United States v. Butalino, 285 F. 2d

408 [CA 2 1960}). The conviction in this case is no more

supportable—because of the lack of evidence- than were

the convictions in Thompson v. Louisville, 862 US. 199

and Garner vy. Louisiana, —— U.S. ——, 30 US. Law Week

4070. Here as there, the conviction violates due process

of law.

1° The case is of additional interest to the instant case because

the argument was made that since there were no words of proeura-

tion immediately before Howe's name the representation was that

the first signature was genuine and not written by Howe. The

court rejected the argument, saving (270 P. at S01): “(T)he

situation is the same as though Howe had added the word ‘by’

before his name and the word ‘its’ before the word ‘cashier’, or

written other words of similar import. The presence or absence

of words of procuration has nothing to do with the question of

whether or not the words written by Howe constituted forgery.”

18

In its original opinion (see R. 127; 115-116) the court

below said:

“The jury was correctly instructed that a written

power of attorney to proseeute a claime against the

vovernment and giving authority to an agent to recess

a check, gives that agent no power to cudorse and

collect the check. Such authority may be given either

orally or in writing. ...

“There being no proof of such authority in writing,

appellant must rest on an oral authority to sign as

Trustee, and realize upon the checks. Appellant claims

he had this. Such authority was denied by both Bart-

fields. At best this presents a question of credibility,

decided adversely to appellant below, and this evi-

dence must be looked upon by us, on this appeal, in the

light most favorable to support the government's case

here... .” (Emphasis in original.)

When, on petition for rehearing, it was called to the at-

tention of the court below that there was a written power

of attorney and that it expressly gave the right to receive,

deposit and endorse the checks, the court amended its opin-

ion (R. 127) by inserting the words “adequate or convine-

ing” between the words “no” and “proof”.

How the court could arrive at this conclusion in the face

of the clear language of the power of attorney is not easily

understood. But pass that; the misunderstanding by the

court below and its confusing of Counts 21 and 22 with

other counts in the indictment is clearly seen from this

statement (R.128):

“ . If there were only evidence that appellant had

acted solely inegood faith and not fraudulently as

Trustee, he might now be heard to claim his signing

as Trustee was actually an act done pursuant to the

19

power of attorney he held. But we cannot and do not

sdxinterpret his action, in view of the substantial ert

dence-to support the fraudulent returns which were

the basis of the refunds which resulted in the issuance

’

of the checks upon which Counts 21 and 22 were based.”

( Emphasis added.)

There is simply nothing—but nothing—to support. this

statement and such a view of the evidence.

In the first place, petitioner was not charged with filing

a fraudulent return for the Barttields. In the second place,

the Government never clajmed and there is no claim that

the Barttield returns were fraudulent. In the third place,

the tax returns are not in evidence and were not even

offered in evidence (R. S98, 97).° In the fourth place, there

just is no evidence af al/, substantial or otherwise, that

the Bartlield tax returns were fraudulent. The entire evi-

dence on the Barttield counts appears in the record from

pages 41 through 49. Nowhere therefrom can there be

gleaned even a whisper—not a scintilla—that the tax re-

turns were incorrect, or that petitioner had acted fraudu-

lently or that petitioner was not entitled to the money.

On what ground, therefore, can such a conviction be

allowed to stand? If the court below made so basie an

error, one can imagine the problems of the jury.’*

"As to some of the other forgery and false representation

counts, the Government offered the tax returns, e.g. Exhs. 10 & 11

(R 33. 34.53). Exh. 15 OR. 35, 37); Exhs. 17 and 20 (R. 38, 39);

Exhs. 18 & 21 (R. 40, 53); Exh. 27 (RB. 51); Exh. 28 (R. 52).

The Bartfield returns were marked for identification as Exhibits 33

and 34 (R. 41) but not offered (R. 50, 89, 97).

? Especially in the light of the instruction (R. 75) to the jury

that a written power of attorney to reeeire a check vives no power

to endorse and collect a cheek—all in the face of the precise lan-

guage of Exhibit M (R. 44, 106-107) giving preeisely the power

to endorse and collect.

20

Other errors by the court below are equally bad. The

court makes a point (R127) that the power of attorney

(Exhibit M, R. 44, 106-107) authorized “R. Milo Gilbert”

to endorse and negotiate the checks, but that it does not

say anything about “R. Milo Gilbert, Trustee”, What pos-

sible difference could that make? If the word “by” ap-

peared in front of “R. Milo Gilbert™ on the endorsement

and the word “Trustee” had been left off so that the en-

dorsement gead: “Bartfields by Gilbert”, would there have

heen any less a forgery?) We'subinit not. Nor does the addi.

tion of the word “Trustee” either with or without the “by”,

make it any more a forgery. It is not forgery in either

case, With the “by” present, the word “Trustee” becomes

just surplusage."’ Without “by”, the word “Trustee” like-

wise shows that the writing is Gilbert's, not Barttields’,

and therefore not forgery.

The court below states (R. 128) that the Bartfields testi-

fied that their signatures were not notarized, although it

did concede (ibid.) that the Barttields affirmed that the

signatures were theirs. Again, what ditference does it make

whether the signatures were notarized ?"* There is no re-

quirement in California that a power of attorney be ae-

knowledged. The only effect of acknowledgment is that,

if acknowledged, the instrument may be recorded (Calif.

Govt. Code 27287) and thus give -onstructive notice to

others (Calif. Civil Code 1215). But there is no require-

1 So as to facilitate the bank clerks in determining into which

account to depe.‘t the check (R. 50, 95, 63).

14 Incidentally, the place on the power of attorney form is what

ig known as an acknowledgment which is a statement by a notary

that the persons acknowledged having erecuted the instrument

(Calif. Civil Code*1155). It is not, like a verification (Calif. Code

of Civil Procedure 446) or an affidavit (Calif. Code of Civil

Procedure 2003), a statement under oath and signed in the presence

of a notary.

ment that to be valid a power of attorney need be recorded.”

And an unrecorded (Calif. Civil Code 1217) or an unac-

knowledged (West v. Mears, 17 Cal. App. TIS, 121) Pae.

700) instrument is valid between the parties. Moreover,

there is no contention that the power of attorney here in-

volved was recorded and the instrument shows on its face

that it was not.

There are other statements by the court in its effort to

sv-tain the convietion which likewise do not support. it.

These statements are (R. 128) that the jury might have

found:

1. that the signatures of the Bartfields on the power of

attorney were forgeries. We respectfully submit that when

a person affirms that a signature is his, it cannot be a

forgery.

2. that the power of attorney was unnotarized and in-

complete before delivery. Even if unnotarized, as we have

pointed out above, that is utterly immaterial. And to sug-

gest that the instrument was incomplete before delivery is

without foundation in the record. It is just a guess, hardly

enough to sustain criminal conviction.

®° that the instrument was executed in blank. Here

again, there is just no evidence to support such a conclu-

sion.

4. that it was executed with no specific power to endorse

checks on the theory that the provision for endorsement

was inserted after the original drafting by use of a caret.

There is just no evidence to suppo.t the conclusion that

19 This is true even if the power of attorney concerns real prop-

erty (Calif. Civil Code 1216).

99

——

the insertion of the word “endorsing” occurred after the

original drafting.”

If the jury drew these conclusions, as the court below

said it might (R. 128), then, in truth the convictions were

made out of thin air—by guess and speculation—not hy

evidence, “Speculation and intuition cannot be substituted

for proof.” (United States v. Pechenik, 236 F. 2d S44, S40

[CA 3 1956}).

This is truly a case where injustice has been done and

a mistake made (United States v. United States Gypsum

Co., 333 U.S. 864, 895). It is obvious (R. 109) that the court

below had little sympathy for petitioner.” But that is

neither here nor there. The conviction was obtained in the

absence of evidence and so is a denial of due process eall-

ing for correction by this Court. Thompson VY. Louisville,

362 U.S. 199, 206:

“ Just as ‘Convietion upon a charge not made

would be sheer denial of due process,’ so is it a viola-

16 What evidence there is on this matter is the testimony of peti-

tioner. (It wili be noted that, to make crystal clear the absence

of evidence to support the conviction, petitioner has not relied at

all upon the evidence he introduced in putting on his case.) R. 60:

“Q. When did you put this writing on this power of

at-orney?

“A. At the time I prepared it.

“Q. When was that?

“A. April 10, °97.

“Q. When did you insert the little word ‘endorsing’?

“A. At the precise time after I wrote it. I wrote it and

[I read it and put that in.”

Even if the word “erJorsing™” were not in the power of attorney,

the remaining langu ze (R. 106) (“receiving, depositing ». . and

otherwise negotiating such refund checks at his sole discretion,

including the right of offset”) is certainly broad enough to au-

thorize the endorsement.

17 Jt even thought he was guilty of the counts as to which the

jury had acquitted (R. 109).

no

~)

tion of due process to convict and punish a man with-

out evidence of his guilt.”

Conclusion

The convictions on counts Zl and 22 should be reversed

and the counts ordered dismissed.

Respectfully submitted,

Anpert A. Dorx

Wirnix, Rissman, OxkRAND & PosNER

rep OKRAND

Attorneys for Petitioner