United States v. Manuel

LatimeR, Judge

(dissenting); I dissent.

It appears to me the Chief Judge’s -opinion overlooks one important element in the offense; namely, that the indorsement was falsely affixed to the money order. The Manual for Courts-Martial, United States, 1951, states the *746elements of the offense to be the following:

“(a) That a certain signature or writing was falsely made or altered, as alleged; (&) that the signature or writing was of a nature which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice; (c) that it was the accused who so falsely made or altered such signature or writing; or uttered, offered, issued, or transferred it, knowing it to have been so made or altered; and (d) facts and circumstances showing the intent of the accused thereby to defraud.”

To establish the element of falsely affixing the signature of the payee, the opinion states: “Thus in the absence of any indication of his authority to do so, the probability that it was a forgery was clearly apparent.” Conceding the record shows that the accused indorsed the money order, the theory behind that statement must be that if a person signed another’s name to a document, he is presumed to have forged the signature. If that concept is correct, then the burden is on an accused to prove that he did not commit the crime. Stated differently, a lack of authority to sign another’s name can be presumed and the presumption used as evidence to establish an element of the offense.

The issue in this case is simplicity itself. In order to establish the corpus delicti, the Government must establish that the offense charged was probably committed. Paragraph 140a, Manual for Courts-Martial, United States, 1951; United States v. Isenberg, 2 USCMA 349, 8 CMR 149. In this instance, aliunde the confession, the Government established that the accused presented a money order with the payee’s name indorsed on the back. The indorsement was in the handwriting of the accused. Nothing more was established. If that shows the offense of forgery was probably committed, then the corpus delicti is established. If it does not, then this conviction cannot be affirmed. In my judgment, it does not. I would therefore, reverse and grant a rehearing.