APPEAL from a judgment of the County Court of Otsego County (LOOMIS, J.), rendered June 8, 1953, sentencing defendant to a term of not less than two and one-half years and not more than five years, upon a verdict which convicted defendant of the crime of forgery in the second degree.
Joseph P. Leary and Francis H. Anderson for appellant.
Richard J. Bookhout, District Attorney, for respondent.
Defendant had been engaged in the business of selling automobiles. On October 23, 1952, he delivered to the Citizens National Bank and Trust Company of Oneonta a promissory note for $700 payable in thirty days purporting on its face to be signed by Robert W. Utter, as maker, and containing defendant's own signature as indorser.
The note recited that it was given as part of the purchase price of a 1944 Chevrolet one-half ton pick-up truck and contained the usual recitals made in such a chattel note, giving the holder right to immediate recourse against the chattel on
default. The note was given in renewal of a previous note which was taken up.
Defendant has been convicted of forgery second degree upon an indictment which charges that 'with intent to defraud' he 'uttered * * * and put off as true' the note given October 23d on which the signature of the maker Utter 'had been forged'.
Utter testified he did not sign the note; defendant testified he himself signed Utter's name, but that in doing so he had Utter's authority. Utter denied giving the authority. There is clear proof in the record that defendant had not sold to Utter the truck described in the note and that neither the purported maker nor the defendant indorser had title to the truck thus described in the instrument.
It was established, as well, that the note was not paid when due; and, of course, the right of the bank to recourse against the nonexistent vehicle which the note purported in elaborated terms to afford the holder in case of default was quite illusory.
Appellant is unable to demonstrate to our satisfaction that it was not well within the frame of a fair factual issue for the jury on this record to believe Utter's testimony that defendant had no authority to sign the note as maker rather than defendant's testimony that he had such a right.
When the jury resolved the issue of authority in this way it could readily find that the signature was a forgery by defendant's own writing; and it is undisputed that defendant uttered the instrument by its delivery to the bank.
A somewhat closer question is presented whether the uttering of a forged note 'with intent to defraud' as pleaded in the indictment has been established sufficiently to support the jury's finding in this respect. It is the act of uttering of a forged instrument 'with' intent to defraud that constitutes the crime when the relevant portions of section ...