One who endorses a government check by signing the name of the
payee and then his own, as agent, when in fact he has no such
authority, is not thereby guilty of forgery under 18 U.S.C. § 495.
Pp.
370 U. S.
650-659.
(a) On the record in this case, including the judge's
instructions, the jury's verdict of guilty might have been based on
a finding that petitioner had purported to make an agency
endorsement. Pp.
370 U. S.
653-655.
(b) The word "forges" in § 495 was intended to have its common
law meaning, and it does not include a purported but unauthorized
agency endorsement. Pp.
370 U. S.
655-659.
291 F.2d 586, judgment vacated and cause remanded.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner, an accountant whose business included acting for
others in federal income tax matters, was charged in a
thirty-five-count indictment with violations of 26 U.S.C. §
7206(2), 18 U.S.C. § 1001, and 18 U.S.C. § 495, in that he had
allegedly falsified his clients' returns (§ 7206(2)), forged their
endorsements on government tax refund checks (§ 495), and, by
endorsing such checks, had made false statements as to a matter
within the jurisdiction of a government agency (§ 1001). The jury
convicted on thirty-one counts and acquitted on four others.
Page 370 U. S. 651
On appeal, 291 F.2d 586, 597, the judgment of conviction was set
aside as to twenty-nine counts, and a new trial ordered, because
the Court of Appeals found that evidence used by the Government in
support of these counts had been illegally seized. The judgment as
to the remaining two counts (Nos. 21 and 22), charging the
petitioner with having forged the endorsements of Daniel H.
Bartfield and Charline R. Bartfield on two government refund checks
(18 U.S.C. § 495), was affirmed. [
Footnote 1]
It was stipulated at the trial that petitioner had endorsed in
his own handwriting the two checks, made out to:
Daniel H & Charlene R Bartfield
c/o R Milo Gilbert
519 Taft Building
Hollywood 28 Calif
in the following manner:
Daniel H. Bartfield
Charline R. Bartfield
R. Milo Gilbert, Trustee [
Footnote 2]
Page 370 U. S. 652
Petitioner claimed that a written power of attorney, allegedly
signed by both Bartfields in his office, authorized him to endorse
tax refund checks, and that "Trustee" after his name served to
designate the particular bank account where he deposited and held
all client refunds until December of each year against the
possibility of there being a refund adjustment and until his
contingent fee was settled. The Bartfields acknowledged that the
signatures on the power of attorney were theirs, but disclaimed
recollection of signing the instrument, and denied that they ever
authorized petitioner orally or in writing to receive or endorse
checks. [
Footnote 3]
On these premises, the Court of Appeals, concluding that the
evidence was sufficient to permit the jury to find that petitioner
had endorsed the checks without authority (a conclusion which, for
present purposes, we accept), held that one who endorses a
government check by signing the name of the payee and then his own,
as agent, when in fact he has no such authority, is guilty of
forgery under § 495. We granted certiorari to consider the
correctness of that view of the statute. 368 U.S. 816. While not
mentioned in the petition for certiorari, though discussed in the
briefs on the merits, the Court of Appeals for the Tenth Circuit,
after the Court of Appeals' decision in the present case, held that
"forgery" under § 495 does not embrace a purported, but
misrepresented, agency endorsement (hereafter called simply an
"agency endorsement").
Selvidge v. United States, 290 F.2d
894. For reasons given in this opinion we agree with the Tenth
Circuit.
Page 370 U. S. 653
I
At the outset, we are met with the Government's suggestion that
the statutory construction question need not be faced in this case.
Before the Court of Appeals, as in the petition for certiorari, it
was assumed by all that the two checks (which, after the trial and
before the case reached this Court, had for some reason become
mislaid) had been endorsed "
by R. Milo Gilbert, Trustee."
(Emphasis added.) That was a mistaken assumption for, as the checks
themselves show (
supra, p.
370 U. S.
651), there was no "by" before "R. Milo Gilbert,
Trustee."
Arguing that the jury might have found that the word "Trustee"
after Gilbert's signature did not purport to indicate an agency
endorsement, but was merely intended as a designation for routing
the checks for deposit in one of Gilbert's "client" bank accounts,
the Government suggests that a plain case of forgery is made out,
and the agency endorsement question is not in truth presented by
the record.
We cannot so easily dispose of the case. For, accepting the
premise that the jury could have found that petitioner did not
purport to act in a representative capacity when he endorsed the
checks, it was surely also permissible for the jury to find that
petitioner had purported to make an agency endorsement in both
instances, and we are thus left to speculate on which theory its
verdict in fact rested. Indeed the record before us seems to
indicate that this aspect of the case was tried at least primarily,
on an agency endorsement theory. The trial judge's instructions to
the jury on this phase of the case were, at best, opaque. Having
refused to instruct the jury that an agency endorsement was not
forgery under § 495, [
Footnote
4] he at
Page 370 U. S. 654
no point undertook to explain the difference between an agency
and a nonagency endorsement. [
Footnote 5] Nor can we perceive any force in the
Government's further suggestion that the jury's verdict on these
two counts might have rested simply on the theory that, in
describing himself as "Trustee," the petitioner had made a
fictitious endorsement, in that he had never occupied that status.
Since the charge was that petitioner had forged the names of the
Bartfields, not of their agent, this is but another way of
describing the agency endorsement version of the transaction.
In this posture of things, the Government's proposal that we
bypass decision of the question that brought the case here must be
rejected. If an agency endorsement
Page 370 U. S. 655
does not constitute forgery under § 495, the petitioner is at
least entitled to a new trial under proper jury instructions.
II
The original predecessor of § 495 was enacted in 1823, 3 Stat.
771, and, in respects here pertinent, has throughout the
intervening years been in substantially the same form as § 495.
There is no significant legislative history illuminating § 495 or
any of its predecessors. In deciding whether "forges" under § 495
embraces agency endorsements, it is therefore important to inquire,
as the Government recognizes, into the common law meaning of
forgery at the time the 1823 statute was enacted. For, in the
absence of anything to the contrary, it is fair to assume that
Congress used that word in the statute in its common law sense.
In 1847, it was decided in the English case of
Regina v.
White, 2 Car. & K. 404, 175 Eng.Rep. 167 (Nisi Prius, Book
6), that
"indorsing a bill of exchange under a false assumption of
authority to indorse it per procuration, is not forgery, there
being no false making. [
Footnote
6]"
2 Car. & K. at 412, 175 Eng.Rep. at 170 (Nisi Prius, Book
6). This, to be sure, was some twenty-four years after the 1823
predecessor of § 495 came on the books. The Government says that
this English decision should be regarded as but an ill-advised and
temporary departure from the earlier common law which was "soon
recognized" and remedied by the passage of the Forgery Act of 1861,
24 & 25 Vict., c. 98, § 24, defining forgery to include
Page 370 U. S. 656
unauthorized signings "per procuration," with intent to defraud.
[
Footnote 7] The Government
draws from earlier English authority, 2 East, Pleas of the Crown,
850-859 (1803); 1 Hawkins, Pleas of the Crown, c. 70; Coke, Third
Institute (1797 ed.) 169; 4 Blackstone, Commentaries, 247, the
conclusion that agency endorsements did constitute forgery under
the common law as it existed when the 1823 American statute was
passed.
This view cannot readily be accepted. The fifteen judges who
participated in
Regina v. White unanimously decided that
case as they did only after considering the earlier English
authorities. Such of those authorities as are now relied on by the
Government are by no means as clear as the Government would have
them. Thus, Lord East's comments,
supra at p. 852,
were:
"
Forgery at common law denotes a
false making
(which includes every alternation of or addition to a true
instrument), a making
malo animo, of any written
instrument for the purpose of fraud and deceit. . . . [The ancient
and modern authorities] all consider the offence as consisting in
the false and fraudulent making or altering of such and such
instruments."
(Emphasis in original). Coke, [
Footnote 8] Hawkins, [
Footnote 9] and
Page 370 U. S. 657
Blackstone, [
Footnote 10]
who are also cited by the Government, are no more persuasive
towards the Government's view. The more inclusive definition of
forgery contained in the English statutes,
supra, p.
370 U. S. 655
and note 7, proves not that
Regina v. White was mistaken
in its view of the common law, but only that a broader definition
was deemed desirable by Parliament. And, finally, the
Regina v.
White view of forgery at common law was early accepted in a
federal case as representing the English common law.
In re
Extradition of Tully, 20 F. 812. The same view of forgery has
since been followed in most of the state and federal courts in this
country.
See, e.g., People v. Bendit, 111 Cal. 274,
276-280, 43 P. 901, 902;
Pasadena Investment Co. v. Peerless
Casualty Co., 132 Cal. App.
2d 328, 331, 282 P.2d 124, 125;
State v. Lamb, 198
N.C. 423, 425-426, 152 S.E. 154, 155-156;
Dexter Horton Nat.
Bank of Seattle v. United States Fidelity & Guaranty Co.,
149 Wash. 343, 346-351, 270 P. 799, 800-802;
Greathouse v.
United States, 170 F.2d 512, 514;
Marteney v. United
States, 216 F.2d 760, 763-764.
The foregoing considerations combine to lead us to the
conclusion that "forge" in § 495 should not be taken to include an
agency endorsment. So the Court of Appeals for the Tenth Circuit
has held in
Selvidge v. United States, supra, the only
case in the lower federal courts
Page 370 U. S. 658
squarely dealing with the point, [
Footnote 11] and we perceive no sound reason for
rejecting its conclusion. We find no more persuasive than did the
Court of Appeals in
Selvidge (290 F.2d at 896 and note 2)
the scattered federal cases relied on by the Government in support
of the opposite view. [
Footnote
12] Nor are we impressed with the argument that "forge" in §
495 should be given a broader scope than its common law meaning
because contained in a statute aimed at protecting the Government
against fraud. [
Footnote 13]
Other federal statutes are ample enough to protect the Government
against fraud and false statements.
See 18 U.S.C. §§
1001-1026. Still further, it is significant that cases construing
"forge" under other federal statutes have generally drawn a
distinction between false or fraudulent statements and spurious or
fictitious makings.
See, e.g., Greathouse v. United States,
supra (construing 18 U.S.C. § 2314);
Wright v. United
States, 172 F.2d 310, 311-312 (construing 18 U.S.C. § 2314);
Marteney v. United States, supra (construing 18 U.S.C. §
2314);
United States v. Carabasi, 292 F.2d 362, 364
(construing 7 U.S.C. § 1622(h)). Where the "falsity lies in the
representation of facts, not in the genuineness of execution," it
is not forgery.
Marteney v. United States, supra, 216 F.2d
at 763-764. Of course, Congress could
Page 370 U. S. 659
broaden the concept of "federal" forgery by statutory
definition. We hold only that it has not yet done so.
We conclude that petitioner's conviction cannot be sustained
upon this record. However, since we are not prepared at this stage
to say that the Government might not be entitled to succeed on
these two counts of the indictment upon the theory that petitioner
never signed the Bartfields' names in a representative capacity, we
think the way should be left open for a retrial of them under
proper jury instructions, in conjunction with the other counts
already remanded by the Court of Appeals, within a reasonable time.
Accordingly, the judgment of the Court of Appeals is vacated, and
the case is remanded to the District Court for further proceedings
consistent with this opinion.
It is so ordered.
MR. JUSTICE BLACK, MR. JUSTICE CLARK, and MR. JUSTICE STEWART
dissent, believing that one who endorses a check in the name of the
payee without authority to do so is guilty of forgery under 18
U.S.C. § 495, whether or not the forger falsely purports to have
signed the payee's name as an authorized agent.
MR. JUSTICE FRANKFURTER and MR. JUSTICE WHITE took no part in
the consideration or decision of this case.
[
Footnote 1]
18 U.S.C. § 495, provides:
"Whoever falsely makes, alters, forges, or counterfeits 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. . . ."
"
* * * *"
"Shall be fined not more than $1,000 or imprisoned not more than
ten years, or both."
Counts 21 and 22, which are identical in form, charge:
"On or about June 2, 1958, . . . the defendant R. Milo Gilbert
knowingly and wilfully forged on United States Treasury Check . . .
the endorsement and signature of the payees, Daniel H. and Chalrene
R. Bartfield, for the purpose of obtaining and receiving said
amount from the United States, its officers and agents."
[
Footnote 2]
As payee of the two checks, Mrs. Bartfield's first name
(Charline) was incorrectly spelled "Chalrene" on one and "Charlene"
on the other, the former misspelling being carried over into the
indictments. (
Note 1
supra.) On one of the checks, petitioner's first name, as
part of the payee inscription, was incorrectly spelled "Mile."
[
Footnote 3]
No claim is made in this case that there was anything wrong with
the Bartfields' income tax returns, to which the two refund checks
related.
[
Footnote 4]
Petitioner's requested instructions pertinent to these two
counts, both rejected, were:
"1.
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 for such principal to execute said
instrument, is not guilty of forgery."
"
People v. Bendit, 111 C 274 (1896);
International
Finance Corporation v. People's Bank of Keyser, 27 F.2d 523 at
527. 4 I ALR 231 n."
"2. A check endorsed as follows -- name of payee by other as
trustee, does not constitute a forged instrument under U.S.C. Title
18, Section 495."
[
Footnote 5]
Other than a dictionary definition of the word "trustee," the
only instructions given the jury by the trial judge on this phase
of the case were these:
"Where a tax accountant represents a taxpayer in the preparation
of tax returns, there is no presumption of authority and the rights
of the tax accountant must be governed by the terms of his
employment, as applies to any other ordinary agency."
"Also, a power of attorney to prosecute a claim against the
Government giving authority to receive a check in payment gives the
agent no power to indorse and collect the check. But such authority
may be given either orally or by writing."
No instructions specifically addressed to the elements of the
offense under 18 U.S.C. § 1001 were given, and the Government does
not here seek to support the conviction on the two forgery counts
on the basis of that section.
[
Footnote 6]
The trial judge, in summation, had instructed the jury
"that, if they were of opinion that the prisoner at the time
when he signed this indorsement, had wilfully misrepresented that
he came from Mr. Tomlinson [the defendant's former employer] with
intent to defraud him or the bankers, and had no authority from Mr.
Tomlinson, they ought to find him guilty."
2 Car. & K. at 406, 175 Eng.Rep. at 168 (Nisi Prius, Book
6).
[
Footnote 7]
The statute presently in effect in England, the Forgery Act of
1913, 3 & 4 Geo. 5, c. 27, § 1(2), provides that a document is
forged
"if the whole or any material part thereof purports to be made
by or on behalf or on account of a person who did not make it nor
authorise its making. . . ."
[
Footnote 8]
"Lord Coke [Third Institute 169] indeed seems to confine it
[forgery] in strictness to an act done in the name of another, but
this was long ago agreed . . . to be too narrow a definition."
2 East, Pleas of the Crown, 852 (1803). Hawkins interpreted Coke
to say that even the alteration of a deed, by adding a 0 to 500 to
make it 5000, "may more properly be called a false than a forged
Writing, because it is not forged in the Name of another, nor his
Seal nor Hand counterfeited." 1 Hawkins, Pleas of the Crown, c. 70,
§ 2 at 183 (1762).
[
Footnote 9]
"Forgery by the Common Law seemeth to be an Offence in falsely
and fraudulently making or altering any Matter of Record, or any
other authentick Matter of a publick Nature. . . ."
1 Hawkins, Pleas of the Crown, c. 70, § 1, p. 182 (1762).
"Also, the Notion of Forgery doth not seem so much to consist in
the counterfeiting a Man's Hand and Seal, which may often be done
innocently, but in the endeavouring to give an Appearance of Truth
to a mere Deceit and Falsity, and . . . to impose that upon the
World as the solemn Act of another. . . ."
Id., § 2 at 183.
[
Footnote 10]
"Forgery, or the
crimen falsi, . . . may with us be
defined (at common law) to be, 'the fraudulent making or alteration
of a writing to the prejudice of another man's right.' . . ."
4 Blackstone, Commentaries (Christian ed. 1809) 247-248.
[
Footnote 11]
We do not read the early case of
United States v.
Osgood, 27 Fed.Cas.No.15,971a, p. 362, decided under the 1823
statute, as pointing to a different conclusion.
[
Footnote 12]
Ex parte Hibbs, 26 F. 421;
Yeager v. United
States, 59 App.D.C 11, 32 F.2d 402;
United States v.
Tommasello, 64 F. Supp. 467;
Quick Service Box Co. v. St.
Paul Mercury Indemnity Co., 95 F.2d 15.
[
Footnote 13]
The fact that the original 1823 statute had a proviso
disclaiming any purpose to preempt state criminal jurisdiction in
respect of matters covered by the Federal Act does not, of course,
as the Government suggests, indicate that "forgery" had a wider
meaning in federal than under state law.
Cf. 18 U.S.C. §
3231, where a similar general proviso relating to all statutes in
Title 18 is now found.