Gilbert v. United States – Oral Argument – April 10, 1962 (Part 1)

Media for Gilbert v. United States

Audio Transcription for Oral Argument – April 10, 1962 (Part 2) in Gilbert v. United States

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Earl Warren:

Number 478, R. Milo Gilbert, Petitioner, versus United States.

Mr. Okrand.

Fred Okrand:

May it please the Court, Mr. Patterson.

The case before this Court involves two counts of a 35-count indictment which was tried in the United States District Court for the Southern District of California.

The two counts involved identical questions which, in the view of the petitioner, are two.

One, whether or not the act done by the petitioner amounted to forgery as a matter of law and, two, whether or not there is sufficient evidence to sustain the judgment of the trial court and the affirmance by the Court of Appeals.

The case arose when a warrant for the arrest of petitioner was issued by the commissioner in Los Angeles, charging a violation of 18 USC 495, for the forgery of one check, that check being the subject of what is now Count 22 of the indictment.

This was in January of 1959.

After a — an extensive search of the premises of the petitioner, numerous documents and files were taken and a suit — and an indictment was issued in May of 1959, charging 22 counts of violations of various offenses, violation of false income tax returns or others, forgery counts, and violation of 18 USC 1001.

Thereafter, in August of 1959, a superseding indictment was issued, charging 25 counts, the additional 13 — there being — 13 additional counts added to the first indictment.

The petitioner was found guilty of 31 of the 35 counts and acquitted of 4.

Among the 31 were the two forgery counts involved in this petition.

Thereafter, on appeal, the Court of Appeals for the Ninth Circuit reversed and remanded 29 of the 31 counts on the ground that the evidence obtained have been the subject of an illegal search and seizure contrary to the Fourth Amendment.

The Court of Appeals for the Ninth Circuit affirmed the 2 counts which are present before this Court, namely, Counts 21 and Counts 22.

The counts are identical and they charge a violation of 18 USC 495.Had the case been tried in the other counts?

No, Your Honor.

Following the decision by the Ninth Circuit, we took the petition here and the matter has not yet gone back.

Among the counts that were reversed, however, there are counts which are similar in legal import to the two which are present here.

Counts 21 and 22 which are on page 11 of the record, charge in simple and concise language a violation of 18 USC 1495 and charge that on or about a certain date, the defendant knowingly and willfully forged on two, in the two counts, United States Government checks, the endorsement and the signatures of the payees, Daniel H. and Charlene R. Bartfield.

Now, Your Honors, in the record — in the printed record which is before you, at pages 83 and 87, our photostatic copies are pictures of the two checks.

It is alleged that the petitioner forged.

When the — we, on behalf of the petitioner, designated to a — for the purposes of the printed record, these two checks and the other three exhibits which are in the record.

And we’re informed by the clerk of this Court that they couldn’t find the — or that the — these two checks, 31 and 32 which are on page 83 and 87, had not arrived with the bunch of exhibits which had come from the Court of Appeals.

And, efforts were made to locate these original checks without success except as I shall explain.

When neither the clerk of the court below could find the original exhibits nor the clerk of the District Court in Los Angeles, a photostatic copy of each of the checks was obtained from the Internal Revenue Service in Los Angeles and forwarded to this Court via the District Court clerk and the Court of Appeals and then here.

And so, the pictures that appear here at pages 83 and 87 are pictures of a picture.

Mr. Dorn, my colleague, arrived here early last Friday and went through the exhibits in the exhibit room downstairs and I, yesterday, went through them, and I don’t know what the reason was, but the two exhibits are there.

The two original Exhibits, 31 and 32 are present and the clerk advises me that they are in the room where the exhibits are kept for the use of the — of the justices.

And, I would ask that when the Court is considering the case, if it would please, look at the original Exhibits 31 and 32 which are present, the original checks, for the reasons that I shall explain.

It is our contention, number one, that there is no forgery for the reason that forgery, under Section 495 of Title 18, means forgery in the usual and ordinary way that people understand it to mean namely, a coming off, a representation that something is done by someone else and not done really by the person who is doing it.

Fred Okrand:

Now, on pages 83 and 87 of the record are the two checks.

And if Your Honors will notice, on the front side of the check, they are made out with — one of them has two inaccuracies in spelling which are of (Inaudible), are made out to Daniel H. & Charlene R. Bartfield c/o R. Milo Gilbert.

Oh, I want to make one other statement before I discuss this.

In the trial court, and certainly in the Court of Appeals where I had personal knowledge, it was the view of everyone concerned that the endorsements which appeared on the back of these checks were — had the word “by” in front of the word “R. Milo Gilbert,” so that it was considered by all the courts and the parties, in our view, that the endorsements read, “Daniel H. Bartfield, Charlene R. Bartfield.

By R. Milo Gilbert, Trustee.”

This is the way the case was tried.

This is the — certainly the way it was considered in the Court of Appeals.

As Your Honors will note on the picture that’s on pages 83 and 87 and as the original do show upon more careful examination by me and Mr. Dorn yesterday.

There is no word “by” in front of the endorsement.

In our view of the law, however, this makes no difference.

Let me continue.

The front part of the check says, “Daniel H. & Charlene R. Bartfield c/o R. Milo Gilbert,” that is — those are the payees.

And on the reverse side of the check, the endorsements are, “Daniel R. Bartfield, Charlene R. Bartfield, R. Milo Gilbert, Trustee.”

The reason I ask the Court to examine the originals of the checks, Exhibits 31 and 32 which are in the record and in the Exhibit 5, is because an examination of the endorsements will show that they all are all written in the same handwriting.

There is no attempt to make a different kind of a signature for the named payees.

It seems to us clear, that any one who looks at the endorsements can see that they are made by the same person and of course when the case was tried, it was stipulated that the endorsements were by the same person.

Potter Stewart:

Were these checks deposited to Mr. — to the petitioner’s account?

Fred Okrand:

Yes, they were.

They were deposited in his account, an account which is labeled “trustee account.”Trustee account.

Trustee account, which he — and he deposited them in his account.

Hugo L. Black:

May I ask you now, what is the particular significance of the difference between the two checks from your standpoint?

Fred Okrand:

There is no difference.

The two checks are identical.

Hugo L. Black:

Well, why — why do you ask that we look at the original which I have in my hand?

What do you think that shows that —

Fred Okrand:

Well, we think —

Hugo L. Black:

— we need to know?

Fred Okrand:

We think it shows its — it adds to our claim, which we think is apparent from the writing itself, that the signatures are in the handwriting of the same person and that there is no attempt in the writing itself, to palm off anyone else’s handwriting, which is our view of — of what forgery is.

William J. Brennan, Jr.:

Well, didn’t you just say that — can stipulate it that the endorsements are all the same handwriting?

Fred Okrand:

Oh, yes.

William J. Brennan, Jr.:

Well, then what —

Fred Okrand:

Well, in the view of the Government — in the view of the Government, the — the writing of the two names, Daniel H. Bartfield and Charlene R. Bartfield was not authorized by Mr. and Mrs. Bartfield.

And therefore, their view of the law is that if one writes a signature of another one without authorization, that that constitutes forgery.

William J. Brennan, Jr.:

Well, is there any stipulation that the handwriting, as to each name, is that of the petitioner?

Fred Okrand:

Yes.

William J. Brennan, Jr.:

So-stipulated?

Fred Okrand:

So-stipulated.

So-stipulated to by the — by the petitioner.

William J. Brennan, Jr.:

Well, I’m a little puzzled in what more are we going to get examining the —

Fred Okrand:

Well, let me — may I explain?

Perhaps I’ve been — I haven’t been as clear as I might.

Our view of the law is that when a person signs a check, endorses a check, and shows on the check that the payee himself is not signing it but that someone else is signing it, that this does not constitute forgery.

Hugo L. Black:

May I — I don’t want to interrupt, but do I understand you — what your argument is that if I lose a check payable to me and somebody gets it or they steal it and they put my name on it by them, that that would not be forgery?

Fred Okrand:

That’s exactly it, Your Honor.

Hugo L. Black:

Is that your chief argument in the case?

Fred Okrand:

That’s one argument on one point.

That’s the chief argument on one point.

And, we think —

Earl Warren:

May I ask — may I ask this —

Fred Okrand:

— yes?

Earl Warren:

— also, Mr. Okrand.

Is it your position that there must be a disguising of signature before it can be a forgery?

Fred Okrand:

Yes, we think that —

Earl Warren:

In other words, if I lose a check and somebody just writes my name without an attempt to disguise it, just writes her own name on it, wouldn’t that constitute —

Fred Okrand:

Yes, oh yes.

Earl Warren:

Forgery?

Fred Okrand:

That is, indeed, forgery because it’s a palming off of somebody else’s name.

But if he should write your name and — if I may use my own name, too —

Earl Warren:

Yes.

Fred Okrand:

Which would never happen, “by Fred Okrand,” —

Earl Warren:

Yes.

Fred Okrand:

— then it is not a forgery because it is not an attempt to show that —

Earl Warren:

Yes.

Fred Okrand:

— Mr. Chief Justice Earl Warren wrote that name.

Earl Warren:

Yes.

Fred Okrand:

And anybody who looks at it knows that Fred Okran wrote the name Earl Warren and he acts upon my representation that I had the right to do so.

Earl Warren:

I understand that position, but I don’t quite understand how far you’d go when you say that the three signatures were obviously the same person if —

Fred Okrand:

Well —

Earl Warren:

Would that protect a man from forgery if he wrote two names and it could be discernible that it were written by the same man?

Fred Okrand:

If it is very clear, and perhaps I’m over emphasizing it.

If it’s very clear that the last man wrote the first man’s name so that the person who gets it knows that it’s the last man who wrote the name, this, in our general, would not be forgery.

But that is really not necessary to our case and —

Earl Warren:

Yes.

Fred Okrand:

— sometimes a lawyer, anxious to make sure that some little point is not overlooked, overemphasizes something.

We say that on this check, when it is written “R. Milo Gilbert, Trustee,” taken in conjunction with, one, the way the check is made out “Daniel H. & Charlene R. Bartfield c/o R. Milo Gilbert,” taken in conjunction with the fact that the handwriting is all in the same name, that that shows to all the world that R. Milo Gilbert, Trustee, wrote the endorsement and he is not trying to tell anybody that Daniel — Bartfield or that Charlene Bartfield wrote the endorsements.

And, in our view of the law, both at common law, we think is very clear and the overwhelming weight of authority in both the federal and the state courts, as we’ve tried to emphasize in our briefs, is to the effect that that is not — is not forgery.

In other words, we think that the statute means what it says.

When it said forgery, that’s what it meant.

And, the Government has attempted to say, well, it’s a broad statute.

It tries to cover frauds against the Government and therefore, it should broadly construe.

Indeed, they agreed that we correctly state what the majority view of the law is, and they agree that most courts, in fact, I hesitate to say but I haven’t been able to find a single court which has said that a — an endorsement made in a representative capacity so as it — so as to be shown at the last signer is signing the first name, I’ve been able to find no court which had said that is a forgery.

There have been cases around the question, but not that specific question, and all the cases that we’ve been able to find have all been to the effect that that kind of a representative signature does not constitute forgery.

But, as I say, the Government suggests that this is a very broad statute.

It’s a fraud statute.

And so, if he didn’t have the authority which, for the purpose of my argument at the moment, we are conceding, but I will get to it — that question a little bit later.

If he did not have the authority, then since this is a fraud statute, it should be so interpreted to mean forgery.

And, as I say, in our view, it’s a simple question of what is forgery.

We think a common law forgery meant a palming off.

We think the over palming weight of authority, statewide, it means the same thing.

And, of course, the Selvidge case, which was decided just a week before the court below denied a rehearing to us, is precisely in point, which we’ve cited in our brief.

Fred Okrand:

And clearly, it states that to be the law.

Potter Stewart:

The several verbs in the statute, in addition to forge, there’s “whoever falsely makes, alters, forges, or the counterfeits any” and then it goes on.

Fred Okrand:

Yes.

Potter Stewart:

Does the Government make any claim that any of those other verbs are applicable here?

Fred Okrand:

To my knowledge, they have not.

The charge in the indictment is clear.

It just says forgery.

And I think, this was designed, Your Honor, because in some of the other counts — earlier forgery counts, we — for example, may I say — I think — yes, counts 12, 13, 14 — no, 12 and — 12, 13, and 14, on pages 7 and 8 of the record, do use other words in the statute.

They say “falsely made, forged, and altered” in those three counts but in these two counts, the Government chose to state very clearly “forged.”

It makes no other allegation of any kind as to the crime by which they are charging against the petitioner.

John M. Harlan II:

Is there other — is there any other federal statute between the point in the statutes?

Fred Okrand:

There are numerous statutes dealing with forgery in various specific instances.

In the chapter in which 18 USC 1001 is located, there are, I think, some half-a-dozen statutes which, in language similar to this, make it a crime to present a false, forged, altered, counterfeited instrument to the Federal Housing Agency into the Federal Deposit Insurance Corporation and various specific kinds of documents which are to be presented and using much the same language.

But Congress, of course, as we say, knew what it was doing when it said forgery, and it meant forgery as everybody understands it to mean.

I might say, although I don’t think it’s important and necessary for the petitioner to say in order to prevail, that there is no problem about a man going free, if he should do something as charged here on the ground that there’s no statute to cover it.

In fact, there’s a much broader statute which does cover various kinds of frauds which probably would cover this sort of a situation and 18 USC 1001, under which statute the Government also charged to petitioner in two or three counts in the indictment.

On Page — on pages 9 and 10, in counts 18, 19, and 20, the Government charged violation of 18 USC 1001, so that there — if there is a fear, and I say this should not bear any weight at all in the question of whether or not what petitioner did to violate 495.

But if there is a fear that in some way, someone will get away with something, providing the facts are there, there’s no cause for that because other statutes are present in which Congress obviously intended to cover other situations.

There is one more argument that I think I should cover before I conclude with this point and that is the argument that is made by the Government posited upon the — a position taken by the Court of Appeals, namely, that the word “R. Milo Gilbert, Trustee” is a fictitious person.

Now, in our view, this is not a permissible argument.

We say that “R. Milo Gilbert, Trustee,” is not a fictitious person and that it tells to the casher of the check precisely and exactly the truth.

Assuming for a moment and the facts in the case do not bear this out, assuming for the moment that the petitioner had absolutely no right at all to this check and no right at all to the money.

Nevertheless, the endorsement “R. Milo Gilbert, Trustee” correctly states his capacity.

This is particularly emphasized in this record because of the definition that was given by the court to the jury, if we are to accept it here, as to what a trustee is.

And, the court told the jury that trustee meant one and trusted with the property of another.

Now, of course, that’s exactly what the petitioner was saying here, namely, if the facts were such, “I have the property of somebody else.”

Now, persons can become involuntary trustees, persons can become trustees whether they want to or not, and so when a person signs a check in this way, he is saying, “This is not my money and I am — I am the one who is signing this and holding to somebody else’s money.”

So, on that ground, we think that the judgment below is erroneous, that this is not a fictitious person.

But this is only an additional argument to our other one, namely, that the word “trustee” shows that the petitioner is signing in a representative capacity, so that, on two grounds, we think that forgery is not shown here.

John M. Harlan II:

Did the record show what happened to the person in his check?

Fred Okrand:

The record does not show.

The only inference, and it’s a pure inference, is that it went into the bank account of the petitioner, but that’s all.

Now, since your — since, Mr. Justice Harlan, you asked that that question, I might say this.

Oddly enough, these counts are, I don’t know if they’re the only ones but they’re certainly among the only ones in which the Government never did claim that there was anything wrong with the income tax returns that were filed, anything wrong with the application for the tax refund that was filed.

There is no charge in the record and no charge in the indictment.

There is no claim in the record that there was anything wrong with any of the forms that were filed, and there’s nothing in the record to even suggest that the Bartfield’s claim, that the petitioner was not entitled to the money.

Now, the only thing that comes close — the closest thing in the record is a question asked by the prosecuting attorney in which he’s asked Mr. Bartfield, “When is the first time you saw these checks, saw the checks?”

And, Mr. Bartfield answered, “The first time I saw them was when — when the Government men came and showed them to me.”

This was after the checks had been deposited and had been cleared by the various banks.

But at no time did Mr. Bartfield say that “I didn’t get the money,” at no time did Mr. Bartfield say he wasn’t entitled to the money.

“He” meaning — by “he,” I mean the petitioner.

There just is nothing of that in the record of any — of any kind.

Potter Stewart:

I don’t know.

These checks represented refunds to the Bartfields as a result of alleged overpayment of their income tax.

Fred Okrand:

Yes.

Potter Stewart:

And they were — the checks were cashed by the petitioner and deposited to his account.

Fred Okrand:

In his trustee account.

That’s very clear.

There’s no question about that.

Potter Stewart:

Doesn’t it — doesn’t it follow that he was not entitled or is it your theory that this was his fee for making up their —

Fred Okrand:

Well, the precise arrangement — I’m trying to stay away from the evidence that the petitioner presented to make it so very clear when I get them to the second part of my argument, if I get to it.

I’ll make it so very clear that there’s no evidence against him.

But since the question was asked, he worked on a contingency basis.

If he obtained a refund for his clients, he would get paid.

If he did not, he would not get paid.

How much was due him in this case is not in the record at all.

Potter Stewart:

That’s kind of an interesting contingency that if he gets a refund for his clients, he gets the entire refund.

Fred Okrand:

Maybe he gets the entire or maybe he gets the part.

There’s an inference that he gets part in some of the testimony that he — that was asked to him by the, I think, by the government attorney.

Hugo L. Black:

Was there testimony that the Bartfields did not authorize him to sign their names to the check?

Fred Okrand:

Yes, yes.

There’s oral testimony that the Bartfields did not authorize him to sign their names to the check.

Hugo L. Black:

Was there testimony that they had not appointed him as a trustee?

Fred Okrand:

There is oral testimony to that effect and that come — brings me to my second point.

This is an interesting situation, Your Honors.

And, of course, I suppose, in all — in contest cases of this kind, this very often happens.

The Bartfields — I’m going to my second point now that there’s not enough evidence.

The Bartfields testified that Exhibit M which is in the — which is printed in the record at page 106 and 107, and a picture of which was not reproduced in the record, I don’t know why, but is attached to the Government’s brief.

That testimony is absolutely clear that Mr. — that those are the signatures of Mr. and Mrs. Bartfield on that power of attorney, a written power of attorney.

Hugo L. Black:

What page is that?

Fred Okrand:

On page 106 and 107 of the record.

And, if Your Honors will note, it’s a very broad power of attorney giving the petitioner the right to take all the steps necessary to prepare the forms, to endorse — to receive, deposit, endorse and, otherwise, negotiate the said refund checks at his sole discretion, including the right of offset.

So, it gives him the absolute right to deal with those funds and in accordance, of course, with his disagreement with the —

John M. Harlan II:

(Inaudible)

Fred Okrand:

The body of the power of attorney, the printing?

John M. Harlan II:

(Inaudible)

Fred Okrand:

Yes.

The — yes.

This is in the handwriting of the petitioner.

John M. Harlan II:

All of it?

Fred Okrand:

All of it is in the handwriting of the petitioner with the exception of the signatures under “witness this hand.”

Potter Stewart:

And the notary signature.

Fred Okrand:

And the notary, that’s right.

Now, it is true that Mr. and Mrs. Bartfield testified in various ways that they did not remember signing, that they did not remember the petitioner asking them to sign a power of attorney, that they did not — and, of course, in an — when Mr. Justice Black asked me, and they orally testified that they didn’t appoint him trustee, but that’s another point.

Now, it’s our position, Your Honor, that when an individual testifies that this is his signature, that it takes some little evidence, it seems to us, to overcome the validity of that document which he signed.

And it seems to us that in a criminal case, it isn’t enough for an individual to say, “I don’t remember to signing it.

He didn’t ask me to sign it” because, in the ordinary affairs of life, this happens very often that people don’t remember having signed documents but when they see their signature, they know that they signed it.

And we suggest that in ordinary business transactions, when a person sign a document that they’re bound by it and they’ve got to come in and show something in order to get around the parole evidence rule.

They’ve got to show that — make some kind of a showing that either that they didn’t sign it and there’s no — there’s just no question about that.

I don’t — I just don’t see how the Government can contend that it was not their signature.

Earl Warren:

Mr. Okrand, they did — they did testify positively, did they not, that they had not acknowledged their signature before the notary?

Fred Okrand:

Yes, they did.

There’s no question —

Earl Warren:

And the notary was not produced.

Fred Okrand:

That’s right.

Earl Warren:

The notary was the wife of the petitioner.

Fred Okrand:

Yes.

But as we explain in our brief, the power of attorney that’s involved here is what they signed, and the purpose of the acknowledgment is merely in case the document is to be recorded.

Earl Warren:

Yes, I understand that.

Fred Okrand:

And to give notice to the other persons and the law is very clearly.

The Government doesn’t make any contention otherwise that as between the parties, an unacknowledged power of attorney is valid.

Earl Warren:

Well, I suppose that would be some evidence of the fact that they didn’t — that they did not sign, wouldn’t it, if a document had attached to it what purported to be an acknowledgment before the — before a notary public and that was fraudulent, and —

Fred Okrand:

It would be some evidence.

I think of this, Your Honor.If the — if it were a verification, rather than an acknowledgment, if it said the parties appeared of — the ordinary one, “sworn and signed in my presence” or whatever the language is, and they said they didn’t do that, that would be a little stronger than our case here.

But here, is what we — here, what we have is an acknowledgment which is a different kind of a thing.

In other words, very often, as in California, a person signs a power of attorney and he may or may not get it acknowledged.

And then, he goes to a notary public and the notary public acknowledges that he said that he signed it, you see, not that he signed it in my presence.

And it’s our view that the Bartfields, if this were not their signature, they would’ve certainly said so.

And if I may say so, having had experience with the efficient Office of the United States Attorney in Los Angeles, if there were any question at all — any question at all as to whether or not these were the signatures of Mr. and Mrs. Bartfield, the handwriting expert would’ve been there in a minute.

There just can’t be any question that these were the signatures of the Bartfields.

Now, the only other thing then is, is as suggested by the Court of Appeals and as taken on by the Government, well, then, maybe it was presented in blank or maybe it was another document that they were told that they were going to sign or something like that.

This is conjecture.

This is not evidence and we strongly urge that, certainly in a criminal case, that this is not enough evidence to show that he did not have the actual written authority.

Now, the only, the only instructions that were given on the question of forgery in this case were three, maybe two-and-a half.

On page 71 of the record, the court read 18 USC 495.

And then, at page 75 of the record, the court gave these two — these two instructions.

I really think they are only one instruction that where a tax account represents a taxpayer, gets no particular authority there from and has to be judged by the rules of everyone else.

And then this one, also a power of attorney, which apparently the court considered to be in the case, to prosecute a claim against the Government giving authority to receive a check in payment, gives the agent no power to endorse and collect the check, but this authority maybe given either written or orally.

Well, the power of attorney gives much more than the power to receive a check, one parenthetical matter.

The Court of Appeals also suggested and the Government agrees that perhaps the word “endorse,” which is inserted by way of a little carrot, as Your Honors will see in the copy attached to the government’s brief.

Fred Okrand:

It doesn’t appear on the printed part.

It was added afterwards.

Well again, this is just conjecture and our view is that whether it was put in afterwards or not put in at all doesn’t make any difference because the power of attorney was so broad that it would covert the right to endorse and even collect the check.

Hugo L. Black:

Did you ask an instruction on that?

Fred Okrand:

We asked for three but two instructions —

Hugo L. Black:

Did you ask, on this particular point to which you refer, about the power of attorney?

Fred Okrand:

Well, yes.

In this forum, Your Honor, we asked —

Hugo L. Black:

What is that?

Fred Okrand:

— for this.

I’ll see if I can find them.

We asked for these two instructions which were — which were not given.

Hugo L. Black:

What page?

Fred Okrand:

Page 20, at the bottom.

One who executes an instrument purporting on its face to be executed by him as an agent of a principle.

No, we didn’t.

No, those two instructions had to do with our theory of viewing —

Hugo L. Black:

Did you accept to that charge on the ground that he did not include the other words that you say should’ve been in there?

Fred Okrand:

The record does not show that.

And so on the two points, we think that the petitioner is entitled to prevail.

One that there is no evidence because we think that this kind of evidence of a person coming in and saying, “I don’t remember” would throw the business community into havoc, it seems to me — it seems to us.

If a person signs a document, he’s bound by it unless he can show some overreaching but he has to show it, and we just don’t think that that’s shown in this record.

And of course, if we’re wrong on that, and if the — and remember this, Your Honors, if you will please, this is not a question of conflict in evidence, as we view it and as the Government seeks to put it.

This is the evidence of the Bartfields alone.

This is the evidence of the Government’s witnesses, their testimony.

I have astute relying upon the evidence as testified to by the petitioner which, as Your Honors can well imagine, was —

John M. Harlan II:

Although, Bartfields testified unequivocally (Inaudible)

Fred Okrand:

Yes.

John M. Harlan II:

(Inaudible)

Fred Okrand:

That’s right, as trustee but the question of the power of attorney part, the remembering of the — whether they signed it, the remembering of whether they were asked to sign a power of attorney, that was — that was equivocal.

Fred Okrand:

That was ambiguous.

But if Your Honor is quite correct that as to whether they testified with — very quickly that, by yes or no answers, that they did not give him the authority to act as trustee in the legal sense.

John M. Harlan II:

What is the Government’s argument in here with the power of attorney, is that(Inaudible) examination?

Fred Okrand:

I don’t think the Government’s argument to the jury is printed.

But I was not there personally, but my recollection of it when I read it before the court below was of course to the effect that — well, maybe something else was done.

I really ought not to say that because this is so hazy and Mr. Dorn who tried the case would know better than I.

It’s not printed in this part of the record.

And so, with that, Your Honor, we would like to reserve whatever remaining time we have for rebuttal.

Earl Warren:

Well, suppose we disagree with you on that — on this part of your case, Mr. Okrand.

Do you lose?

Fred Okrand:

Which part, Your Honor?

The —

Earl Warren:

What we’ve just been talking about.

Fred Okrand:

The power of attorney?

Earl Warren:

Yes.

Fred Okrand:

No, oh no.

Earl Warren:

Well, have — you’re not going to argue the other part of it?

Fred Okrand:

We argue — I thought I argued it at the beginning.

If you — if the Court disagrees with us —

Earl Warren:

Yes.

Fred Okrand:

— as to whether or not the power of attorney can be given effect —

Earl Warren:

Yes.

Fred Okrand:

— then, we still win in our judgment.

Earl Warren:

Now, would you state briefly why?

Fred Okrand:

Yes.

Because the endorsement itself on the backs of the checks, as I started out in my argument, as a matter of law is not forgery —

Earl Warren:

Yes.

Fred Okrand:

— because it is not a palming off, an attempted — an attempt to say that somebody else did this signature.

It is, at the most, a misrepresentation of authority to sign the names of other persons which is not, as we view the cases and which we have outlined in our briefs, forgery either at common law or under the statute.

I hope I made myself —

Earl Warren:

Well, I understood that there was another issue.

You had raised another issue.

Fred Okrand:

No, there are just two.

Earl Warren:

All, also as to whether this was for the purpose of defrauding the Government or not, even though it was a forgery.

Fred Okrand:

Well —

Earl Warren:

If you —

Fred Okrand:

No, no.

Earl Warren:

Even conceding that it’s a forgery —

Fred Okrand:

Oh no.

Earl Warren:

I thought you said that it was your position that it was not defrauding the Government.

Fred Okrand:

Oh no.

No.

If I did, I misspoke myself, Your Honor.

Earl Warren:

Well, then I misunderstood your brief.

Fred Okrand:

If it’s a forgery, if as a matter of law this is forgery, they have — they indicted him for forgery under a statute which makes it a crime to commit forgery and if the Court disagrees with us on our power of attorney, then forgery was committed and that’s it.

Earl Warren:

Well, does any forgery, whether it’s to defraud the Government or not come within the statute?

Fred Okrand:

Well, the way this particular statute reads, the forgery must be for the purpose of getting money from the Government.

Earl Warren:

Yes.

Fred Okrand:

And —

Earl Warren:

That it — that is not due from the Government?

Fred Okrand:

Well, I think that’s what it means and —

Earl Warren:

Well, would it — is there — is that issue in the case or is that out of the case?

Fred Okrand:

I think it’s out, Your Honor.

I’d like to say that it’s in, but I —

Earl Warren:

Alright, that’s all —

Fred Okrand:

— it hasn’t been argued that way all the way through and we can’t say.

Earl Warren:

Yes, that’s all I want to know.

Fred Okrand:

But it’s — however — however, it is very clear though that there’s no claim that this was as a result of any fraudulent income tax transaction.

There just is no claim and —

Earl Warren:

The Government doesn’t claim that the Bartfields were not entitled to this point.

Fred Okrand:

That’s exactly right, and the Bartfields never in — never claimed anywhere that Mr. Gilbert was not entitled or whatever he got, although what he got is not shown in the record.

We don’t — we just don’t know.

We don’t know whether he got any or whether he got all.

Thank you.

Earl Warren:

Thank you.

Mr. Patterson.

Kirby W. Patterson:

Mr. Chief Justice, may it please the Court.

As we view this case, there is basically one question presented by the facts and that is simply why the evidence sustained petitioner’s conviction for violation of 18 USC 495.

That, however, subdivides itself into two further questions, whether the evidence, viewing certain facts and certain remarks by the Court of Appeals, is sufficient which has been argued partially orally and partially by briefs in this case, sustained the evidence.

And secondly, the legal question whether this form of an endorsement constitutes a forgery within the meaning of the statute.

Now, I apprehend that the Court is interested in the legal question rather than the particular factual questions presented by this case, and which has yet have not been fully argued but which are in petitioner’s brief.

I would like, however, to, first, clear the path as to the factual questions.

And later on, I will discuss the legal questions because there will of course be no opportunity to reply anything that is said hereafter on these factual questions.

So, let’s get a little or full picture of what the facts in this case are.

The only counts remaining before this Court placed are counts 21 and 22 of the indictment.

Count 21 charges that on June 2, 1958, the petitioner forged a certain United States Government check payable to the — to Charlotte — he forged the names of Daniel H. and Charline R. Bartfield to a certain United States Government check in the amount of $800, first obtaining that money from United States Government, its officers and agents.

Count 22 makes similar charge.

The only difference is the amount of the check is $500.

The evidence on behalf of the Government supporting these counts was fairly brief.

The only witnesses to testify for the Government were the two Bartfields and they both testified substantially the same.

They said that they employed petitioner, who is a tax accountant or a certified public accountant who does that kind of work to assist them in preparing their 1955 and 1956 income tax returns.

They did not authorize him, to their knowledge at least, to collect any refunds.

They did not constitute him their attorney.

They did not constitute him their trustee.

The Government started to show Mr. Bartfield one of these checks and ask him whether the endorsement on the back was his.

At that point, defense attorney said that, in order to save time, it would be stipulated that all endorsements on the back of both checks were made in the hand of the petitioner.

So, that element of the case was out for these two counts.

Now, the real issue of fact came up on this power of attorney which was shown to the Bartfields by defense counsel on cross examination.

We have set forth this power of attorney as it was originally written, a photostatic copy of it, as an appendix to our Government’s brief in this case.

It might pay to spend just a couple of minutes looking at that power of attorney so we won’t have to go back at — to it any further.

Kirby W. Patterson:

The form of it is simply this.

The Bartfields, as grantors, named petitioner their attorney for these purposes, which is written in the hand of petitioner, “For all matters pertaining to our Federal and California State income taxes and tax returns for the calendar years 1954 to 1959 inclusive.

This includes the filing and signing of tax returns and all of the necessary forms such as extension of time, etcetera, and the filing of necessary refund claims and receiving, depositing, endorsing, which of course appears above the carat, and otherwise negotiating such refund checks at his sole discretion including the right of offset.

Furthermore, to make any compromises and settlements at his sole discretion as he sees fit and proper, furthermore, to perform any further act as he may deem necessary under the circumstances.

We further agree to hold said R. Milo Gilbert harmless for any and all acts committed.”

The signatures purport to be Daniel H. Bartfield, Charline R. Bartfield.

They’re both asked as to their signatures.

They both thought that looked like their respective signatures.

They weren’t absolutely positive about it but they thought it looked like it.

Now, they didn’t recall having signed that — this paper.

They didn’t recall having constituted petitioner as their attorney.

The whole thing was new to them.

Insofar as any tax refund was concerned, they didn’t know they had any tax refund coming back.

They never knew about it.

The only thing, apparently, that informed them of this tax refund was when government men came around and showed them these checks and asked them whether or not those were their signatures on the endorsements.

Earl Warren:

Mr. Patterson.

Kirby W. Patterson:

Yes, sir?

Earl Warren:

I understood to say just a moment, they didn’t recall appointing him their attorney.

I understood Mr. Okrand to say that they testified positively that they did not appoint —

Kirby W. Patterson:

That is more correct, they did not.

That is correct.

They positively —

Earl Warren:

Yes, that’s correct.

Kirby W. Patterson:

And they did not recall having signed this paper here.

That’s the reconciliation —

Earl Warren:

Yes, that’s the way I understood it.

Kirby W. Patterson:

Yes, sir, that is correct.

Earl Warren:

I might have —

Kirby W. Patterson:

That is correct.

Earl Warren:

— misunderstood you, but —

Kirby W. Patterson:

No, you had it exactly right and I had it somewhat jumbled up.

Earl Warren:

Yes.

Potter Stewart:

They did identify these —

Kirby W. Patterson:

They did —

Potter Stewart:

— pictures.

Kirby W. Patterson:

Well, they said — I’d say they satisfactorily identified them as their signatures, although they were not positive about it.

They thought they were their signatures.

Potter Stewart:

Well, nobody questioned them —

Kirby W. Patterson:

And we — there is no evidence that they were forgeries.

Potter Stewart:

And there was no evidence —

Kirby W. Patterson:

They — most of the signers thought they were their signatures but they weren’t sure about.

They were rather mystified themselves, if you read their testimony, how they got on there.

Now, another thing we might observe about this —

Potter Stewart:

It was not suggested by anybody that these were not their signatures, was it?

Kirby W. Patterson:

Well, the Court of Appeals, talking about the evidence in this case says that the jury may have believed that they were forgeries.

Nobody ever said, apparently, that they were forgeries.

The only thing is that the Bartfields thought they looked like their signatures.

Potter Stewart:

I thought the Court of Appeals suggested that maybe these had been signed in blank or something.

I didn’t know there was —

Kirby W. Patterson:

They suggested several possibilities.

Potter Stewart:

— any suggestion of whether these were not their signature —

Kirby W. Patterson:

Both of which —

Potter Stewart:

— or anybody.

Kirby W. Patterson:

That’s correct.

They suggested that and they suggested, I believe if I’m not mistaken —

Potter Stewart:

I don’t remember that.

Kirby W. Patterson:

That they — they could be forgeries.

They had two go-rounds about this, one on the original hearing and one on their motion for rehearing.

I believe, the second time, they suggested that as possibility.

The court — the jury might have believed they were forgeries since Bartfield just said they looked like their signatures.

Kirby W. Patterson:

Now, another thing we might —

Potter Stewart:

In the first —

Kirby W. Patterson:

Yes, sir?

Potter Stewart:

In the first opinion, they — the Court of Appeals’ opinion didn’t show any awareness that there was any purported power of attorney, isn’t that correct?

And that’s had to be called to their attention —

Kirby W. Patterson:

Well, yes.

That’s right.

The language of the —

Potter Stewart:

— in the hearing.

Kirby W. Patterson:

The language of the Court of Appeals, I was going to come to that soon because I’m sure that will be a verdict too on the final argument here about what the Court of Appeals said.

The Court of Appeals language was rather — was rather sketchy on that.

They said that it didn’t appear — well, let me see what was their language?

I was going to come to that.

They said, “There being no proof of authority in writing.”

That’s what they said on their original opinion and then it was pointed out to them that they were inaccurate in that statement, and they amended it by saying, “There being no adequate or convincing proof of authority in writing,” which as I will get to in a moment, were still not completely accurate.

But, that’s not the real issue in this case.

Let me point out, before we fold up the power of attorney or, of course, the Court may wish to keep it up there, but the acknowledgment here by the wife of the petitioner in which, as I observed the acknowledgment, it doesn’t bear a notarial seal but bears everything else.

They didn’t know anything about that acknowledgment.

They didn’t remember at all that they’d ever told Mrs. Gilbert or anybody else that this was their free act indeed, and Mrs. Gilbert didn’t appear as a witness.

Now, before we get on to this matter which Your Honor brought up, let me mention what the petitioner said about this whole thing.

Now, he testified, first, generally as to what his practice was and he said he always required of his clients that they sign powers of attorney.

And that when the refund checks would come in, it was his practice to deposit those checks to his trustee’s account and he would keep them there.

He said he wouldn’t immediately notify the client.

He’d keep them there usually until about December because the Government might want part of that money back.

Now, he wasn’t too clear, as I read the record, as to exactly what happened about this particular power of attorney, though I think his intent was to say that on April 10, this was all prepared in this form.

He read it all over to the Bartfields and they signed it at that time.

It would be difficult to hold him of a forgery charge because his language is indefinite enough on that point that you would have some difficulty.

But I think that was his intent.

He is trying to say that, that everything was in order.

They did sign this, just as is.

Kirby W. Patterson:

They knew all of these.

There was, thus, a square conflict of testimony as to what the real facts were, whether there was really a knowing, conferring of the power of attorney by the Bartfields to the petition.

The court submitted this thing to the jury, first, as has been stated by reading the statute and then sets the execution of the endorsements by petitioner had been admitted.

The only really substantial question which remained was the question of authority and that was submitted by the court’s instruction.

I think a little sketchily, if I may say so.

However, no objection was made at that time or later so far as that is concerned to the form of the instructions, so that is not really in the case.

The real thing which the jury had to determine was did or did not the Bartfields confer, either orally or by this writing, a power on the petitioner to accept these checks and to endorse them and place them in his account, or perhaps they should leave out that last, simply a power to endorse them.

That question, the jury resolved in favor of the Government.

They accepted the testimony of the Bartfields.

They rejected the testimony of the petitioner.

The Court of Appeals, reviewing the case, said it was a clear question of credibility of witnesses which was determinable by the jury.

If the court had stopped right there, its position would’ve been absolutely unassailable.

But as Mr. Justice Stewart has pointed out, they went on and said more, as court sometimes make a mistake of doing.

They said, “There being no proof of authority in writing” and, as I heretofore mentioned, it was pointed out on motion for rehearing, there was a proof, this power of attorney.

And so they interlined, there was no adequate or convincing proof of authority in writing, still not quite filling the bill because whatever is adequate or convincing was not for the Court of Appeals.

That was for the jury.

But reading what the Court of Appeals said altogether, what it intended to say, and which is fairly inferable from all its language is simply this.

That there is a fact question here, a dispute in evidence, and there is no admitted writing which compelled the jury or the court as a matter of law to say that power had been conferred.

There was, we concede, inaccuracy in the language of the Court of Appeals.

That, however, does not call for reversal of the judgment.

Now, the Court of Appeals further went ahead on the motion for rehearing and said another thing that they didn’t need to say, and which I think was inaccurate and correctly called inaccurate by the petitioner.

They refer to substantial evidence to support the fraudulent returns which were the basis of the refunds and the checks.

Well, there was evidence to support the fraudulent nature of the returns — returns in the other counts, but there wasn’t on this.

In the interim between argument and motion for rehearing, the court had forgotten just exactly what were the facts and was slightly inaccurate.

It was wholly inaccurate, but it was unnecessary to the decisions on that.

And again, we can throw the language of the court out but we still have its judgment on a matter of disputed facts in which they said it was not their author — it was not their — within the scope of their authority to review the factual finding of the jury and of course, such as this situation, before this Court.

Now, there are other things which maybe mentioned that they also said in that motion for rehearing judgment, they kind of turned over in their own mind some of the things that might have been in the minds of the jury when they accepted the Bartfields’ version rather than accepting the petitioner’s version.

And petitioner now calls that speculation, but that is simply a recapitulation by the Court of Appeals of factual considerations which the jury may have well considered.

It wasn’t the finding.

It was simply a consideration of things which could support the jury’s finding.

Kirby W. Patterson:

So as we see the factual part of this case and the objections to the court’s statements can very well be resolved by this Court in a few words.

This is simply a question whether or not the Bartfields knowingly conferred power of attorney to the petitioner to accept and receive these checks.

Now, it doesn’t — it isn’t shown anywhere definitely in the record about what happened to this money, except this one thing which has been mentioned to both of us that it went into this account.

It was there for a period of several months, we don’t know exactly how long.

The Bartfields never knew about it.

The petitioner had it.

The question is simply whether or not he forged their endorsements.

We come, therefore, the primary question in this case which is whether or not the endorsements herein constitute forgery especially within the meaning of this particular statute.

Now, originally, is it whether or not a question presented by this case because the petition filed in this Court said that the endorsement was in this form on both checks, “Daniel H. and Charline R. Bartfield by R. Milo Gilbert, Trustee.”

The checks themselves were not before us, but the Court of Appeals had said that was the language of the endorsement.

The Government brief below said that was the language of the endorsement, and the Government in its brief and our position herein, saying that everybody agreed that was the language, assumed such to be the case and our brief and our position was framed on that basis.

Now, had the endorsement been in that form by R. Milo Gilbert, Trustee, there is a clear showing on the face of the endorsement that the foregoing signatures were made by R. Milo Gilbert, Trustee.

And, the majority holding or the American courts is at such an endorsement does not constitute forgery, as it is generally understood.

So there is certainly no feeling that the court had this devote in anyway when it grant a certiorari in this case.

It was a case which seemed to call for it, but those don’t seem to be the facts at all.Here is nothing further which I think should be explained to the Court, so as you will understand the briefs that both parties have filed in this case, is this.

That following the grant of the clerk of this Court, by his deputy, wrote to the clerk of the Court of Appeals and requested that the original to these documents be set up, saying that they were not included within the record which had been set up by the Court of Appeals.

And the clerk of the Court of Appeals wrote back and said, “We don’t have them but we have, however, inquired from the clerk of the District Court and he has obtained photocopies of them from the Treasury agent in Los Angeles.

These are forwarded here with and with the — without objection by either parties, we assume that the photocopies may be accepted the same as the originals.”

Those were set up.

They were printed in the record.

I should say, they were copied in the record at page 87 and 83 of the record, and it was only quite recently that it was discovered for reasons which nobody seems to know exactly the answer that the original of these checks is and was within the files of the court and that these endorsements are in this form “Daneil H. Gilbert — Daniel H. Bartfield on one line, Charline R.Bartfield on the second line, R. Milo Gilbert, Trustee, on the third line,” no “by” there at all in both the original brief and in the reply brief.

There’s quite a bit of arguing back and forth about whether we should accept these photocopies which didn’t include the word “by.”

Now, that’s not in the case.

We have before us a very simple case, as we see it, whether it’s nothing on the face of these endorsements which, on its face, shows that the petitioner signed for the Bartfields at all.

William J. Brennan, Jr.:

What about the stipulation that —

Kirby W. Patterson:

The stipulation was simply this.

William J. Brennan, Jr.:

Is it in the record?

Kirby W. Patterson:

Yes, the stipulation, we all turn to that just to give it in — Mr. Bartfield is being quizzed by the Government counsel.

William J. Brennan, Jr.:

What’s the page?

Kirby W. Patterson:

The page is — I was going to look and see whether it begins on this page or the next.

Kirby W. Patterson:

At page 41 at the bottom, we’ll start right there to get the — no, wait a minute.

Start at the bottom of the following page 42.

“Mr. Bartfield, I show you Government’s Exhibits 31 and 32, did you ever authorize Mr. Gilbert to have any tax refund checks made payable to you and sent to him?”

Answer, “No.”

“I call your attention to the back of Government’s Exhibit 31.

Is that your signature on the back of that document?”

“No, sir.”

Mr. Dorn, defense counsel, “The Court please, if it will save time, I will stipulate that those signatures on those checks are signed by Mr. Gilbert in Mr. Gilbert’s handwriting.

This witness did not sign them.”

In other words, he admitted that he executed the signatures.

Now, how that takes out of the case any criminal element, I fail to understand.

William J. Brennan, Jr.:

Well, what I’m trying to get at.

Kirby W. Patterson:

Yes?

William J. Brennan, Jr.:

Does the Government —

Kirby W. Patterson:

I —

William J. Brennan, Jr.:

— concede that the signatures of the Bartfields are in the petitioner’s handwriting?

Kirby W. Patterson:

We not — not only concede that, we allege that.

Yes, sir.

William J. Brennan, Jr.:

I see.

Kirby W. Patterson:

Yes, sir.

Potter Stewart:

But you do not concede, as I understand it, that the — that it is apparent on the face —

Kirby W. Patterson:

That is correct.

Potter Stewart:

— at the back of the check that these were all three in the same handwriting.

Kirby W. Patterson:

That is — that is entirely correct, Mr. Stewart — Mr. Justice Stewart, yes, sir.

Now, the — it seems to me though —

Earl Warren:

May I ask Mr. Patterson.

Kirby W. Patterson:

Yes.

Earl Warren:

Is that the only thing that — in the whole case that indicates that it was tried on the theory that this was Mr. and Mrs. Bartfield by Milo Gilbert or is it —

Kirby W. Patterson:

Mr. Chief Justice —

Earl Warren:

I understood counsel to say that it was tried on the theory that it did say “by.”

Earl Warren:

Now, I wonder, is there anything else in there?

Kirby W. Patterson:

No.

I — my answer is no on that.

Here’s what happened.

The original of these checks was before — were before the jury and the court.

Earl Warren:

Yes.

Kirby W. Patterson:

They were handed to the witnesses.

Presumably, the jury as well saw them.

There is no “by” on those checks there.

The only thing that I found that would justify that assertion on the part of petitioner’s counsel is that prior to the charge to the jury, there was a colloquy in which Judge Yankwich said this.

I’m trying to find his exact language.

Yes, I believe it’s at record 63.

No, no, pardon me.

That’s not it.

Yes, it is at 63 but has in another point.

“An endorsement,” this is Judge Yankwich, “Is fictitious when the man puts the name of somebody else by himself as trustee when he is not trustee.”

He is arguing back and forth with the counsel at that time.

Now, the basis for what Judge Yankwich said there was simply this, that there were other counts.

And in these are the counts, and Your Honors, in reviewing the exhibits in this case, we’ll see that this is true, the other counts, they did have checks which were signed “payees” followed by the word “by R. Milo Gilbert, Trustee.”

William J. Brennan, Jr.:

Different payees in the bottom?

Kirby W. Patterson:

Yes, different payees.

Yes, sir.

That was it.

That was it exactly.

William J. Brennan, Jr.:

Mr. Patterson.

Kirby W. Patterson:

Yes, sir?

William J. Brennan, Jr.:

I’m a little puzzled —

Kirby W. Patterson:

Yes, sir?

William J. Brennan, Jr.:

— of your colloquy with me and Justice Stewart.

Do I understand that it is on the Government’s position that all three signatures were made by the petitioner in his handwriting?

Kirby W. Patterson:

Yes.

William J. Brennan, Jr.:

But it’s also — I don’t quite get the consistency of that position, although I think you said to Justice Stewart namely that you can’t tell from the —

Kirby W. Patterson:

A matter —

William J. Brennan, Jr.:

— looking at the signatures, but they are —

Kirby W. Patterson:

A matter of words there, a matter of words there, sir.

I should perhaps be more exact to say it’s stipulated they were in the hand, you could put it that way to explain the difference in meaning.

We concede or we all agree that Gilbert — Gilbert was the one who put these all there, but we don’t say that they’re all in substantially the same kind of handwriting.

And let’s us just, while we’re on that point, take a look at those endorsements.

Now, first, I’ll give you the one which, to some extent, supports the petitioner’s view.

That is the one that in support of count 20, 40 — 22, and it’s found on page 83 of the record.

This is not too clear.

Your originals will show up more clearly.

But I think you can quite — well, get the idea from the examination of these copies.

Now, it might be said, as Mr. Okrand has suggested to the Court, that might be the conclusion of some people.

I’m not sure it would be the conclusion of all, that all three signatures there are executed on their face by one man in one handwriting.

Now, if we’re through with that one, take a look at page 87, the one supporting count 21.

The first one is obliterated forcedly by the stand.

But you have, first, “Daniel H. Bartfield” in a small crimped signature, following is a more flowing signature “Charline R. Bartfield,” then you’d find in an oblique and large free-flowing handwriting, the signature of “R. Milo Gilbert, Trustee.”

Now, I say the most casual glance at that would make you certainly think that those were three different people who have signed that.

But we say this.

It’s not up to this Court to act as judge into that matter.

It’s not even up to the bank clerks to be sufficiently expert in handwriting to say that on the face of it, whether or not those were executed by one man.

But we say is simply this.

That there is nothing on the face of these endorsements which shows that one man executed all of them as a matter of law.

Now, an attempt is made to build an argument on the fact that the phase which has reversed —

William J. Brennan, Jr.:

May I ask you.

Kirby W. Patterson:

Yes, sir, before we leave that?

William J. Brennan, Jr.:

I’m a little stupid.

I can’t follow this.

If it’s the fact that one can’t say, just glancing at it is, that all three are in the same handwritings, how does that strengthen the Government’s position that this is a forgery?

Kirby W. Patterson:

Well, because there is intent here for — we contend, on the jury is so final that Gilbert character — Gilbert simply was signing all these three signatures on there and putting it on there in such a manner that the bank clerk would take the check and deposit to his account.

And thereafter, he was free to do anything he’d like with them and never did anything, incidentally, to dispose of them to see that the Bartfields got any part of it.

In other words, we say that he executed them alright, but if there is any question for this Court to determine about whether he simulated the writing of another person, we think this one on 87 rather clearly indicates that he was trying to indicate the Bartfields had signed.

Those are very genuine signatures.

Now, this is it because he’s the last signer.

It’s all that it is.

But we don’t think actually, Your Honors, that you have to determine because we don’t think you have to act as judges of a factual question.

We say simply that on the face of this endorsement, there is nothing which shows that petitioner signed with an agency relationship there so as to give notice to that — everybody concerned that he was signing with authority because there are, as I say, majority cases hold that signature where it shows on its face that the bottom signature is signing the others and it representing his authority to do so on its face, then that’s not forgery.

Now, we come to how that crept into our law in a moment and see why it’s applicable in this particular statute.

William J. Brennan, Jr.:

I follow it now.

Kirby W. Patterson:

Is that correct, sir?

William J. Brennan, Jr.:

I follow it now.

Kirby W. Patterson:

I’ll help you clear that out.

Earl Warren:

Is there any contrary author — substantial authority (Voice Overlap) —

Kirby W. Patterson:

There is, yes, sir.

There are and we’ve cited that.

Now, we — the contrary authority are cases.

I’ll simply cite them to the Court at this time.

I call Your Honor’s attention to where they appear.

They — if I can find that page.

Earl Warren:

That’s not necessary.

Kirby W. Patterson:

Well, there are — there are authorities but, as I say, the weight of authority is his in favor.

Earl Warren:

Yes.

Kirby W. Patterson:

And some federal cases, some state cases had held that even though the thing shows on its face an authority, that may be — may also be forgery.

Incidentally, while we’re on this point —

William J. Brennan, Jr.:

What’s the state of the authorities where that doesn’t appear?

Where the word “by” is not?

Kirby W. Patterson:

Well now, I’ve never found any case for exactly this situation that’s presented where the — it’s ever been even contended that you can get by without the word “by” or something similar, and you can’t have this kind of a situation.

You can have a per b or something like that, or a per procuration b something of that character, or you can have this.

You can have the name of the corporation written or stamped or typewritten followed by the signature.

Kirby W. Patterson:

That on its face, shows that the signer at the last is signing the others.

That’s not forgery according to this majority view.

Now originally, they complained everything hinged on this word “by.”

Since the word “by” is out, now they’re shifting around on the use of word to somewhat different contentions and it’s contended for one thing that the face of the check there, when it says “Daniel H. and Charlene R. Bartfield c/o R. Milo Gilbert,” followed by endorsements on the other side shows, looking at both of them together, that Gilbert signed for all three.Not at all, not at all as we see it.

All that happens there is that you have checks made to the Barkfields as the principal payees in care of the petitioner who had also have to sign, but he hasn’t signed “by” or he hasn’t signed “care of” or anything to show agents.

He just signed “trustee” and, now, they claim that “trustee” is the key word that shows that they were signing the previous signatures.

Our answer to that is not at all also, because when you add the word “trustee” to a signature, it may very well and probably have been that it was simply put there to show which account this check and these checks were to be — to be deposited to, and that is not simply our position.

That is the position which the petitioner has taken.

In his petition herein, he said at page 10 at footnote 7 that the reason was undoubtedly so as to facilitate the bank clerks in determining into which account to deposit the check.

In the trial, the same theory was advocated by defense counsel where they were arguing for a motion for judgment of acquittal.

That’s at page 63 and Mr. Dorn said there, “I think it’s the general practice to put down in endorsing a check, the name of the account to which the check is to be deposited.”

The court says, “That’s right.”

Now, that was their theory before.

That’s the reason “trustee” is on there.

Potter Stewart:

I don’t —

Kirby W. Patterson:

Simply to show the account.

Yes, sir?

Potter Stewart:

I don’t quite understand what led the bank to put these funds in his account.

The payees were Mr. and Mrs. , what’s their name?

Kirby W. Patterson:

Bartfield.

Potter Stewart:

Bartfield?

Kirby W. Patterson:

Yes, sir.

Potter Stewart:

They were the payees?

Kirby W. Patterson:

Yes, sir.

Potter Stewart:

And they endorsed it, purportedly, that is their names —

Kirby W. Patterson:

Yes, Your Honor.

Potter Stewart:

On the back of it in blank, and that’s what made for check the same as cash, I suppose.

Kirby W. Patterson:

Yes, that’s right.

Potter Stewart:

And then came his name as trustee, but there was no direction to pay to the order of him as trustee or anything else, even purportedly signed by the Bartfields.

I don’t know what is the —

Kirby W. Patterson:

Well, I suppose, my answer to the —

Potter Stewart:

This probably isn’t very important to this case, but I —

Kirby W. Patterson:

I’d say that you’re —

Potter Stewart:

May be —

Kirby W. Patterson:

You’re right on this, Mr. Justice Stewart.

The prior endorsement, as the Bartfields being in blank just made them as cash and, thereafter —

Potter Stewart:

And converts it into money.

Kirby W. Patterson:

— on face of it, it was all Gilbert’s.

He could put it anywhere he wanted.

He wants it in his trustee’s account.

They have a trustee’s account.

They put it in that account and there it goes.

I think that’s —

Potter Stewart:

Well, it wasn’t all here, but it was all — it belonged entirely to whoever held it (Voice Overlap) —

Kirby W. Patterson:

That’s right.

That’s currently what would be the result.

Potter Stewart:

I see.

John M. Harlan II:

(Inaudible)

Kirby W. Patterson:

Yes, Your Honor.

Yes, sir.

John M. Harlan II:

(Inaudible)

Kirby W. Patterson:

Yes, sir.

That’s correct.

John M. Harlan II:

That’s not the way (Inaudible) jury, isn’t it?

Kirby W. Patterson:

Well now, the jury there, as I say, the instructions are somewhat sketchy, what was submitted to them was simply whether they had authority, whether petitioner has the authority to make this endorsement.

If he didn’t, then when he wrote the names of the Bartfields, that was — that was a forgery, that seems to have been what the court submitted.

And as I say, if there had been question about the form of the instructions at the time, then the court probably would have made it more specific.

It’s pretty — a pretty sloppy way to submit the case, but that’s not really in the case as we see it now because no issue has been made on appeal or in the trial court as to the form of instructions.

John M. Harlan II:

(Inaudible) as to question of law.

(Inaudible)

Kirby W. Patterson:

Yes, sir.

John M. Harlan II:

(Inaudible) is that right?

Kirby W. Patterson:

Yes, we say they don’t have to reach that third question, which I was going to go on to discuss in a moment, whether 495 is broader than the majority view holds forgery to be.

We don’t have to reach that — that question, on our view of the facts.

We think that, actually, the court say that in view of the error here about the — what the form the endorsement was, the court could say this simply improvidently granted, the improvidence of course not being on the core of the court and not part of the — everybody —

Earl Warren:

I can’t hear you, Mr. —

Kirby W. Patterson:

Excuse me, sir.

I didn’t mean to address myself entirely to Mr. Justice Stewart.

We’re saying that, actually, we think that in view of all the facts as they had been revealed by the full record, the court could say that the writ was improvidently granted.

The improvidence not being on the core the court but simply because the court thought, and we all thought before this matter is fully revealed, that the signatures were in a du — different form “by R. Mile Gilbert, Trustee” which does raise a non-illegal question.

Potter Stewart:

But, it’s your basic position that the question on — which was presented on the petition for certiorari is not really here in this case.

Kirby W. Patterson:

That is correct, yes, sir.

Now —

John M. Harlan II:

(Inaudible)

Kirby W. Patterson:

Well, what was the colloquy there between Judge Yankwich and the attorneys, I don’t subscribe to all that Judge Yankwich says, but he points out that this statute is broader than the usual concept of forgery.

Usually, it might be said and certainly the narrower view of forgery is that it’s merely a counterfeiting of the signature of another.

If you take that narrower view, of course, this would not be forgery.

He says the statute is broader than that narrower view and I was going to go on and rather —

John M. Harlan II:

(Inaudible)

Kirby W. Patterson:

Yes, sir.

John M. Harlan II:

Whether to say that the statute (Inaudible)

Kirby W. Patterson:

Well, as I see it, of course it has to be tried on these other counts, assuming the Government wants to.

ut on this other, we say that it was — that the only real question which a jury should have to pass on is simply whether or not authority was right to endorse.

If no authority was granted, oral or written, then the verdict and judgment was correct.

And so, we say there’s no necessity at all to remand.

William J. Brennan, Jr.:

Well, let me see.

Kirby W. Patterson:

Yes, sir.

Yes sir.

William J. Brennan, Jr.:

Is it — is this it that we don’t have to reach the question of law because, on the facts as they now appear, they made endorsements without the word “by”?

This is clearly common law forgery unless the signatures of the Bartfields had been authorized and that that was submitted as a question of fact to the jury on sufficient evidence and resolved against the petitioner and, therefore, we ought to dismiss this as improvidently granted?

William J. Brennan, Jr.:

Is that it?

Kirby W. Patterson:

I believe so.

I didn’t follow you altogether, but I believe that is correct.

William J. Brennan, Jr.:

Well, let me —

Kirby W. Patterson:

Well —

William J. Brennan, Jr.:

Why we don’t have to reach the question of law is the thing that’s bothering me.

Is it because you say that the absence of the word “by” before his signature on the endorsement makes this, if a forgery at all, common law forgery?

Kirby W. Patterson:

Well, it’s forgery under any possible concept, common law, statutory, or any other concept.

We say if the word “by” is out there, because there’s nothing on the face of this endorsement —

William J. Brennan, Jr.:

And that’s the reason you —

Kirby W. Patterson:

To give notice to the casher of the check that —

William J. Brennan, Jr.:

That’s the reason you say we don’t have to reach the question whether forgery, under this statute, is a broader concept than that.

Kirby W. Patterson:

That is correct.

William J. Brennan, Jr.:

Is that it?

Kirby W. Patterson:

That is correct.

William J. Brennan, Jr.:

And then, that — which leaves in the case only the question of authority.

Kirby W. Patterson:

Yes, sir, which —

William J. Brennan, Jr.:

Is that right?

Kirby W. Patterson:

— was resolved by the jury.

William J. Brennan, Jr.:

By the jury on sufficient evidence.

Kirby W. Patterson:

That is correct.

Yes, sir.

Earl Warren:

If the word “by” was in there, are you clear that it would not be common law forgery?

Kirby W. Patterson:

That is what I was going to come to, Mr. Chief Justice.

Earl Warren:

Alright.

Kirby W. Patterson:

Now, I address myself to that question at this time.

Earl Warren:

Yes.

Kirby W. Patterson:

Now, if the word “by” were in there or if there were anything which we are unable to discern which, on its face, shows that petitioner was endorsing, citing the names of these other people here, under the majority view of the American authorities, at the present time, that would not constitute a forgery.

That would constitute merely a misrepresentation of authority by petitioner.

Let us view, for a moment, how that crept into our law because, as we will tempt to show, it wasn’t originally the common law understanding.

Kirby W. Patterson:

The first case which took such a view was decided in Great Britain in 1847, Queen against White.

The facts in that case were simply this.

White, a former employee of one Thomas Thomassen, went into the bank with a bill of exchange payable to Thomassen which he wish to present and get the money for.

They thought he, of course, was still an employee.

The clerk wrote on the face of the bill of exchange “per procuration, Thomas Thomassen” and then said to White, “sign.”

He signed.

The jury, observing the legal question, the jury found that he was guilty and the legal question was resolved by 15 judges of the court — King’s Bench Court.

Actually, the court didn’t say anything to justify what its finding was.

It said this is the case of first impression.

As far as we’re able to find, it was.

There’s no previous case that we have located of which has been cited deciding that question.

But it just said, without opinion, that this is not forgery.

Apparently, I would say that the reasoning perhaps was that of the petitioner’s counter — the petitioner’s counsel in that case, which was that the bank clerk had relied not on the signature but he’d signed on the — he relied upon the signer.

Why did he sign that right in his presence there and reliance was placed on that rather than on the representation of authority?

Well, that was the law established in 1847 in England.

How did it get over here?

Well, in 1856 or 1857, a Massachusetts case decided this, that’s the Baldwin case and in 1861, this took place.

Parliament, which apparently had seen the mischievous effects of this kind of interpretation of forgery on the business community, changed the law and, by statute, defined forgery so that it included anything which is a misrepresentation of authority.

Now, that’s 1861.

In 1866, there’s a New York case which without — in which White was cited, but the court didn’t cite anything.

It just decided it wasn’t forgery.

But, how Regina against White really got into our law, as I see it, was through the case of Henry Tully, decided by the Southern District of New York in 1884.

And in that case, which was in extradition case of an Englishman who had, with authority in that case, signed certain checks on his bank.

He was employee of an English Bank there and he’d signed certain checks and — which he was authorized to do, and then he’d claim to turnover the money to other agents of the bank but instead, he had taken the money and fled to America, $200,000 worthy.

When he got over here, they attempted to extradite him under a forgery statute, under forgery treaty I should say.

And, the Circuit Court of the Southern District of New York held that this wasn’t forgery because, first, and this was its holding, because Tully had authority to withdraw — to sign those checks for the bank.

They said, “Even without authority, under Regina against White, he wouldn’t be guilty of forgery and so, were not going to send him back.”

Now, it got in, as you see there, as a dictum, not knowing that England itself had already disavowed Regina against White by changing in its statutory form the definition of forgery.

Well, Tully and White had been the progenitors of all the American cases.

So far as I have been able to find, I think that’s great.

Kirby W. Patterson:

They all trace back to an English case, the parent country of which had disavowed it.

In which, regarding to this country, largely by way of dictum, it is, as I have said, been largely adapted by the state courts and by — and, usually, by the federal courts, although there had been dissenters on that, which we cited in our brief.

Now, should we apply that to this case or to this statute?

This statute, it looks bright and spanking new in its US Code form, but it’s really an 1823 statute which has come down to us without substantial change.

So really, if you are getting right to the beat of the thing, you want to look back at this as a statute enacted 50 years before — or 25 years before White and 50 years before Tully.

And, what did Congress mean at that time?

Well, in the first place, they entitled the Act, an Act to punish — let me get it exactly.

Well, I believe this is it.

I don’t find it.

An Act to punish frauds committed against the Government of the United States.

That is it, exactly.

In other words, at least in the title of the Act, they were primarily interested in preventing fraud and that is, historically, the purpose of forgery statutes.

And what was the meaning of forgery at that time?

At that time, there were no American cases that I have found which give any very adequate definition that’s clarifying on this particular point.

But let’s look at what some of the English authorities said.

If I may read, Blackstone said that forgery is the fraudulent making or alteration of a writing to the prejudice of another man’s right.

That’s broad enough certainly to cover it.

Coke said that forgery is property taken when the act is done in the name of another person.

Well, this was taken in the name of another person.

In getting more directly to the question here, whether unauthorized signatures may constitute forgery, let’s take a look at some other language which was initially — initially pronounced by Sergeant Hawkins.

He said, “Also, the notion of forgery does not seem so much to consist in the counterfeiting of a man’s hand and seal, which may often be done innocently.”

You see, that’s what we are talking — what the petitioner is talking about now, it’s counterfeiting.

He says it doesn’t consist so much in that which may often be done innocently, but in endeavoring to give an appearance of truth to a mere deceit and falsity and either to impose that upon the world as a solemn act of another which he is in no way privy to, and that’s what the jury found here.

That petitioner was not privy to the Bartfields, or at least to make a man’s own act hereto have been done at a time when it was not done, and by force of such falsity to give it an operation which in truth and justice, it ought not to have.

Well, now, under Hawkins’ definition, this would be forgery, I say, and that language was copied by Baker, almost verbatim.

And East who wrote in 1803, and it is said to have written most extensive of any author at that time prior to 1823 on the subject of forgery, has about 200 pages on the subject in his work.

He says this.

He quotes also the language of Hawkins and Baker, and he adds this, “It’s a making (Inaudible) of any written instrument for the purpose of fraud and deceit, and wrestle on the prize which is a very old text.

The first edition came out four years before the statute was enacted in 1819 and the recent edition, 11th edition, came out 1958 and they mentioned — the author there mentions the generality with which forgery was understood in the early 18th century.

So, we say that, actually, if you get right down to the legal question, which we initially thought was presented by this case in our brief, in our position, whether where on the face of the endorsement, there was a showing that the previous endorsements were by another person as agent, we say that even if that situation on the facts are presented, looking at the particular statute here, the purpose of the statute, and how this later concept crept into the law, that we shouldn’t apply that rather narrow definition of forgery to this case because there is a fraud on the Government.

Kirby W. Patterson:

The fraud on the Government —

John M. Harlan II:

There are other statutes on that.

Kirby W. Patterson:

There are other statutes and we say, actually, if the court were rewriting all the law, forgery — the forge — the proper understanding of forgery is really the common law understanding of it and that which, as — begin with Regina against White, is in its presence which could be disregarded.

However, as this particular statute, it is especially clear because this statute was enacted in 1823 before Regina against White ever came up, and that theory was ever advocated.

However, our basic position, as we’ve endeavored to point out to the Court, is that you do not have to reach that it’s whether not a legal question because on the facts, as the full record here reveals, there is nothing, which on the face of it, shows that petitioner signed the Bartfields’ names.

John M. Harlan II:

Did this case —

Kirby W. Patterson:

Yes, sir.

John M. Harlan II:

(Inaudible)

Kirby W. Patterson:

Yes, sir.

John M. Harlan II:

(Inaudible)

Kirby W. Patterson:

Yes, sir.

John M. Harlan II:

(Inaudible) and suppose the jury could have been instructed that even though they found that there was a number of times (Inaudible) but it still made its finding that the purpose of the defendant, how long was his signature (Inaudible) to pay the check(Inaudible)

Kirby W. Patterson:

I think they would, if they had raised that point and I think the court should have very well —

John M. Harlan II:

And, under that kind of instruction, even though you didn’t have the word “by,” it would have been a fair question to the jury as to whether the purpose of the signature as trustee on the end of it (Inaudible)

Kirby W. Patterson:

Well, I’m not at all sure that even a jury would be authorized to pass on that factual question, certainly not in this Court.

I have perhaps indicated that the jury should, but I question even whether the jury should.

I say that the jury would — would have to decide, first, the question of authority and if they didn’t find there is any authority to execute the Bartfields’ endorsements, then the petitioner was guilty.

Of course, if there is anything which, on its face, showed as a matter of law —

John M. Harlan II:

Or the jury could’ve (Inaudible)

Kirby W. Patterson:

Well, I — no, as a matter of the questions instruction.

Now, if it had been admitted, of course, that this power of attorney was executed, then there would’ve been the matter of law for the court to instruct the jury on it.

But absent anything of that character, I don’t see what the jury would really have to determine in this case, except the question of authority.

I don’t think they would look at this and say, well, Bar — Gilbert didn’t have authority but still, he’s been open enough that when he went to sign, he’s written just his hand that he ordinarily writes it.

I don’t think that would —

John M. Harlan II:

(Inaudible) isn’t it?

Kirby W. Patterson:

No.

I think if — if there’s nothing on the face of the document which shows authority that he was signing for these others by per procuration, or anything like that, then the only way they can get around the forgery, by common law or by statute, is simply by showing that he did have authority to sign their names.

Now, it doesn’t help — it doesn’t help these poor taxpayers one with, that they had some money coming to them which this man got simply because, on one of these checks perhaps, he didn’t disguise his handwriting.

I don’t think so.

I think that would still be forgery.

Earl Warren:

Well, Mr. Patterson, may I ask you how this case was argued in the court below that if some — in the trial court on the question as to whether or not he signed as trustee or whether he just signed trustee?

Kirby W. Patterson:

I can’t answer that because it’s not in the record, Your Honor.

Earl Warren:

I beg your pardon?

Kirby W. Patterson:

I can’t answer how it was argued because that is not in the record.

Earl Warren:

The reason I ask is I see there are two defendant’s instructions that were requested here.

Kirby W. Patterson:

I see.

Earl Warren:

One of them is a check endorsed as follows, “name of payee by other as trustee,” does not constitute a forged instrument under USC Title 18 Section 495.

Kirby W. Patterson:

Yes.

Earl Warren:

Now, I wonder if the court denied that instruction because it didn’t say “as trustee” or “by trustee” or whether he refused it because he thought the law — he thought it was immaterial whether it was that way, as you are arguing now.

Kirby W. Patterson:

Well, apparently —

Earl Warren:

I think it make —

Kirby W. Patterson:

— he thought it was —

Earl Warren:

I think it makes a great difference if the prosecution considered that that word “by” was in there as it was considered on appeal, and up until very recently, then it seems to me that the jury was not fairly confronted with the difference between the situation where it just says “Bartfield, Bartfield, Gilbert, trustee” as distinguished from “Bartfield, Bartfield, by so and so, trustee.”

And I think we’re entitled — we ought to be entitled to know that because the jury could be greatly misled.

These instructions were asked and here is another one that was requested, the endorsing of a government check by the defendant, by writing the name of the payee on the check and below, the payee’s name, the defendants name as trustee does not constitute an offense under the section.

And another one, one who executes an interest — instrument purporting on its face to be executed by him as agent of a principal name therein when, in fact, he has no authority for such principal to execute such instrument is not guilty of forgery.

Now to me, it makes some difference as to how the prosecution approached that, whether they say it makes no difference to us, whether it says “by” or just signs it trustee.

And, the court — I saw some place here where the court said — I thought I saw it in here where the court said that it didn’t make any difference if the Supreme Court had held that, in such circumstances, it was a forgery.

Kirby W. Patterson:

Yes, that’s the trial court.

I think that said something to that effect.

Earl Warren:

The trial court?

Yes, —

Kirby W. Patterson:

The trial court says —

Earl Warren:

— that’s what I’m talking about —

Kirby W. Patterson:

And now, as I say, the trial court —

Earl Warren:

What I’m talking about now.

Kirby W. Patterson:

In some of its colloquy, I do not think it’s entirely accurate, so far as I could determine.

However, remember this, if I may suggest this, the actual —

Earl Warren:

Now, here it just — this is what I had in mind.

Kirby W. Patterson:

Yes.

Earl Warren:

You said — the court said, “The Supreme Court of the United States has held repeatedly that forgery doesn’t mean merely adding a man’s name.

If you put his name down as trustee, when you are not trustee, and there is testimony in the record that he never was made a trustee which the jury believed, that is sufficient and I will instruct the jury as requested in government’s instruction 20.”

Now, he’s telling the jury there, it seems to me —

Kirby W. Patterson:

Well —

Earl Warren:

Well, he is telling — telling the parties because this was outside the hearing, I assume.

Kirby W. Patterson:

Yes.

Earl Warren:

That it doesn’t make a particle of difference to him whether the — where the word “by” is in there or whether it isn’t, that this Court has held that it is not forgery.

Now, if the prosecution tried it on that theory and said it didn’t make any difference, what — how can we expect the jury to make the distinction between the two, as you do here in this Court?

Kirby W. Patterson:

Well, as is I see it, Your Honor, we — in the first place, we indicated we don’t subscribe to everything which the trial judge said as to what the law in this case is.

When he quotes the Supreme Court there, I think he’s inaccurate because I don’t find such an opinion in the books.

I do think this, while he didn’t consider that as critical, some of these counts containing the word “by,” these two counts not including it.

I think that regardless of that, the actual facts in this case and the actual checks which were before the jury showed that there wasn’t any “by” there, so there’s nothing which is a matter of law which took this question away from the jury, and the jury was left with its only real factual issue to determine which was a question of authority.

That was to be determined.

Did they believe the Bartfields or did they believe the petitioner?

They believed the Bartfields.

And let me point this out further, that when we talk about affirming the Court of Appeals, it doesn’t make any difference that the Government apparently and did, incur in this mistake before that court.

Because the actual facts, which revealed, show that his word “by” wasn’t in there and so, this Court can and should affirm any judgment which appears upon actual facts as they are shown by the record, whether by any assumed facts would be an entirely artificial situation to determine this case on the basis of facts which were not true and which don’t form the basis which the court — which the jury determine this case on, which was the actual checks themselves.

Now, as I say, what the — was said by counts and argument, I’m unable to determine because that’s not in the record.

Earl Warren:

Mr. Dorn?

Albert A. Dorn:

Mr. Chief Justice and Honorable Justices.

I think I’m in a somewhat fortunate position being here as I am responsible for having represented the defendant in the trail court and have tried the case.

I think I can state with complete fairness and categorically, that the case was tried by the prosecution.

It was considered by the defense and by the trial court that these checks were signed in a representative capacity, and it was on that basis that the court below denied the defendant’s instructions to which the Chief Justice has just alluded to, that the court — the trial court believed the law to be that when a check shows on its face that it is signed in a representative capacity, that that constitutes forgery under 495.

Earl Warren:

We’ll recess now for lunch Mr. —