THEODORE M. GARDINER, JR., Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY.

Argued November 27-30, December 4, 1944. Decided December 15, 1944.

1. An indictment alleging a forgery of an instrument need not set out marks, ornaments, marginal figures, or indorsements since they are not deemed a part of the instrument.

2. It is not necessary that one actually see another commit a forgery before his testimony may be accepted as valid evidence against the accused, but it is sufficient to convict whenever the logical deduction from the facts placed on record leads conclusively to the logical deduction that the crime was committed by the accused.

3. A party who does not apply for a new trial after rendition of an unfavorable verdict has not exhausted his means of securing relief in the trial court and therefore cannot appeal to the Supreme Court.

On appeal from conviction of forgery, judgment affirmed as modified.

A. D. Wilson, Jr., for appellant. The Solicitor General for appellee.

MR. JUSTICE RUSSELL delivered the opinion of the Court.

This appeal has been taken from the several rulings and from the final judgment in the trial of the above entitled cause in the Circuit Court for the Fourth Judicial Circuit, Maryland County, at its November term, 1943.

The facts in the case as disclosed by the record follow briefly : That certain alleged forgeries were being perpetrated was first brought to the attention of the authorities of this Government by the Legation of the United States at Monrovia, which transmitted to the Department of State in the first instance a letter dated September 8, 1942 from Montgomery Ward Sc. Company of Chicago, Illinois, United States of America, and later another letter from the same company dated September 22, 1942, together with a copy of a draft issued by the Dominion Bank of Toronto, Ontario (Canada) on the National City Bank of New York in favor of Annie Cressman in the sum of $34.52, and an indent on four sheets of paper from Theodore M. Gardiner, Jr., of Cape Palmas. As the letters from said company are in the nature of a complaint out of which these proceedings grew, we quote them hereunder as follows :

“September 8, 1942.
“AMERICAN FOREIGN TRADE SERVICE,
MONROVIA, LIBERIA,
WEST AFRICA.
“Attention : The Consul General

“GENTLEMEN :
“We wish to bring to your attention a series of forgeries which in addition to causing our corporation a money loss has caused considerable inconvenience to certain Canadian missionaries now serving in Liberia. We are requested [sic] an investigation of these circumstances as we wish to obtain a recovery of our loss and we also wish to assist in bringing to justice the perpetrator of these frauds.

“We have received during the period of September 17, 1940, through May 4, 1942, four drafts from Theodore M. Gardiner, 37 Mechlin Street, Harper, C.P., Liberia, West Africa. Against these drafts we have shipped merchandise of value. These drafts in all instances were drawn by the Dominion Bank of Toronto, Canada on the National City Bank of New York, U.S.A. They were purchased by the Pentecostal Assemblies of Canada and made payable to missionaries serving in Liberia.

“Without exception these drafts have been returned to Montgomery Ward from the Dominion Bank without entry for reason of forged endorsement. Statements have [been] obtained by the Pentecostal Assemblies from its missionaries that the drafts were not received by them and the endorsements were not made by them or by anyone with their authority.

“The detail of the subject drafts is as follows :

[Please see pdf file for table and figures]

We are informed by Mr. Charles M. Wortman, General Secretary of the Pentecostal Assemblies, that practically all of their drafts are cashed by an agent— one of their missionaries who is stationed at Cape Palmas.

“It is quite possible that he might be able to contribute information. His name is not mentioned but his mail is directed to The Business Agent of the Pentecostal Assemblies of God Mission, Cape Palmas, Liberia. We understand that he received the mail for all missionaries and has the power of attorney to cash their drafts for the purpose of forwarding supplies inland.

“We look to Theodore M. Gardiner of Harper, C.P., for payment of $278.79 the total amount credited to his account and for which we have shipped merchandise.

“We will appreciate the assistance of your office in this transaction and we thank you for your attention to our request.

“MONTGOMERY WARD
[Sgd.] J. H. CHRISTOFFERSEN
Special Reference Dept.”

The second letter reads as follows :

“September 22, 1942.
“AMERICAN FOREIGN TRADE SERVICE
MONROVIA, LIBERIA
WEST AFRICA.
“Attention : The Consul General

“GENTLEMEN :
“This letter has reference to a series of incidents which we brought to your attention in our letter of September 8, 1942. We now wish to supplement this letter with additional evidence which proves the circumstance of forgery perpetrated at Cape Palmas, Liberia West Africa.

“We received on September 15th from Theodore M. Gardiner, jr. Mechlin Street, Cape Palmas, Liberia, West Africa, an order for merchandise accompanied by draft No. 841 drawn on [sic] the Dominion Bank of Toronto, Ontario, on the National City Bank of New York, payable to the order of Annie Cressman, in the amount of $34.52. We are now informed by the Dominion Bank that they are in possession of evidence which leaves little doubt but that the endorsement on this draft is a forgery. The Pentecostal Assemblies of Canada, in whose interest Annie Cressman is employed as a missionary, are also satisfied that the endorsement on this draft is not the signature of Annie Cressman.

“We have requested the Dominion Bank to forward via air mail direct to you the evidence which is now in their possession. We are enclosing the order and draft from Theodore M. Gardiner, jr.

“Your assistance and cooperation in this matter is sincerely appreciated.
“MONTGOMERY WARD
[Sgd.] J. H. CHRISTOFFERSEN
Special Reference Dept.”

Copies of these documents were immediately forwarded to the Department of Justice by our State Department and the county attorney for Maryland County was accordingly instructed to make an investigation thereinto. As a result of said investigation an indictment was presented to the grand jury by the said county attorney, and a true bill was thereafter returned upon which Theodore M. Gardiner, Jr., defendant now appellant, was arrested and charged with the forgery of the names mentioned as payees in the drafts, instruments of the crime in this case.

Before the arraignment of appellant in the trial court, his counsel filed a motion to quash the indictment, but of the several points therein raised the one which appellant seemed to have argued with greatest earnestness before this Court was the one complaining that the alleged forged instrument had not been set out according to its tenor.

The weight of authority seems to be that the instrument alleged to have been forged must be set out in the indictment according to its tenor and not merely according to its purport; but there are exceptions to that rule as the following authority indicates.

“It is not necessary to set out marks, ornaments, or marginal figures which form no part of the contract, as they are no part of the forged instrument. . . . An indorsement on a bill or note is deemed to be no part of the instrument, and need not be set out in an indictment alleging a forgery thereof. . . .” 12 R.C.L. Forgery § 21, at 158 (1916).

At this point this Court desires to observe that whilst it agrees with the trial judge that the Rule of Court makes it imperative that the opposite party be served with copies of all motions in accordance with the time allowed by the Rule, yet in order that substantial justice might be meted out to parties litigant, and more especially to persons criminally charged, it is our opinion that in such instances the trial court should have suspended the hearing of the case in order to permit the time prescribed by the Rule of Court to expire before hearing the said motion.

Appellant pleaded not guilty to the charge of the prosecution as contained in the indictment. The prosecution thereafter produced written as well as oral testimony. The payees of the drafts whose endorsements were alleged to have been forged, with the exception of Margaret Wadge who was not within the jurisdiction of the court at the time of the trial but whose statement under notarial seal was submitted by the prosecution, appeared and gave testimony to the effect that they and each of them had never seen the drafts before the photostatic copies were presented to them in open court; that the endorsements on the back of each of them were not their signatures; and that they had not authorized any person to endorse or cash them on their behalf. Mr. John G. Kolenky, at one time county attorney and now a member of the House of Representatives, and Mr. John E. Dennis, the local postmaster under whom appellant had served as chief clerk of said post office and during which period of his incumbency as chief clerk the forgeries were committed, were brought to the stand to testify regarding the writings on the backs of said drafts.

Mr. Kolenky testified that from the knowledge which he had gained from the correspondence which passed between himself and the appellant when he, Mr. Kolenky, was county attorney and appellant was clerk of court, as well as from the time when he was a practicing lawyer at the bar, the writings on the backs of said drafts appeared to him to be that of the said Theodore M. Gardiner, Jr., the appellant. Mr. John E. Dennis, under whom appellant Gardiner served as chief clerk of the post office for nearly ten years, declared that the said writings resembled the writing of Gardiner. To the query from the defense as to whether it was within his certain knowledge that the writing was Gardiner’s, he insisted that the writing resembled that of Gardiner. We do not believe that it is necessary that one actually see another commit a forgery before his testimony can be accepted as valid evidence against the accused, as in that case it would be most difficult and practically impossible to prove the offense. Hence we have what is known as circumstantial evidence, and whenever the logical deduction from the facts placed on record leads conclusively to the logical deduction that the crime was committed by the accused it is sufficient. Wood v. Republic, [1905] LRSC 3; 1 L.L.R. 445, 452 (1905).

When placed on the stand the appellant declared that he saw said drafts for the first time when they were presented to him for his inspection; and he denied having any knowledge of the covering letter and of the indent which were sent to Montgomery Ward over his signature. With a view to establishing his innocence the appellant produced two witnesses, Reverend A. D. Wilson and Filimore R. Neal. The former testified that he had exchanged with appellant his pension drafts for silver on various occasions, and the latter testified that he had sold drafts on the National City Bank of New York to appellant on two occasions since 1940, as far as he could remember.

After evidence was rested and arguments heard pro et con, the case was submitted to the jury, and when a verdict of guilty was returned the appellant filed a motion in arrest of judgment setting out certain alleged defects in the indictment. After hearing said motion and resistance thereto, the court dismissed the said application and thereafter entered final judgment, to which final judgment the defendant announced his exception and prayed an appeal to this Court of last resort.

From judgments of all inferior courts of record any party being dissatisfied may appeal to the Supreme Court of Liberia ; but in the science of jurisprudence as in all branches of human learning there are certain rules of practice which must be followed to obtain desired results, and the law is no exception to this universal rule. Now here is what our statutes say should be done by anyone who desires to avail himself of the right of appeal to this Court :

“On the rendition of a verdict, if any party excepts thereto on the ground that it is contrary to the law or the evidence, or is against the weight of evidence, he must before the jury is discharged enter his exception on the minutes of the Clerk of the Court. Before doing so he may cause the Clerk to ask each juror as to whether or not such verdict is his own, and he shall give notice of motion for a new trial.

“Every party against whom final decision or judgment may be rendered shall be entitled to appeal from any such decision or judgment to the Court of Quarter Sessions [now the Circuit Court], if from a Justice of the Peace, or from the Monthly and Probate Court; and to the Supreme Court, if from the Monthly and Probate Court or the Court of Quarter Sessions and Common Pleas. The party appealing shall be called the appellant, and the adverse party the appellee.” 1 Rev. Stat. §§ 396, 423.

Upon inspection of the records certified to this Court we do not find that appellant has complied with this statutory command. The record does not disclose that appellant gave notice that he would apply for a new trial. Moreover, appellant did not apply for a new trial as the statute directs should be done before appeal could be perfected to this Court. Appellant in this instance failed to take advantage of this legal safeguard afforded him to seek relief, the genius of our law being that every effort should be made to obtain relief in the trial court and only after the party shall have exhausted the means placed at his disposal by the law should an appeal to this Court of dernier ressort be permitted.

We shall now inquire into the question of whether or not the guilt of the appellant was established beyond a reasonable doubt. The prosecution in alleging the guilt of appellant produced the following : (1) Photostatic copies of the drafts bearing the endorsements which have been identified by two witnesses; and (2) Certified copies of letters or indents which appellant is alleged to have sent to Montgomery Ward, the signatures to which were identified by the said two witnesses, Dennis and Kolenky. On the other hand, appellant denied having sent said indents and forged drafts and brought Mr. Neal and Reverend Wilson to substantiate his statement that he had either procured his drafts from the said Filimore R. Neal who is employed in the Oost Afrikaansche Cornpagnie, which firm is the agent of the Bank of Monrovia, Inc. in said locality, or from the said Reverend A. D. Wilson, who is a pensioner of the Protestant Episcopal Church.

From the correspondence which forms a part of the record in this case, it appears that appellant has for a long period been ordering goods from Montgomery Ward & Company, and in a letter dated December 21, 1942 addressed to him by the said company, submitted in evidence, appellant was advised of a credit balance in his account with the said company. The question, therefore, that we ask is the following : to what end would it benefit this company to deliberately invent this diabolical charge and to fabricate the powerful chain of evidence which seems to have so enmeshed appellant, particularly when said appellant was, as it appears from the company’s letter of December 21, 1942 as well as from other correspondence submitted in the record, a good customer of said company? This company is one of the great commercial institutions of the world. It is hardly conceivable that it would, or for that matter could, have connived with the several missionaries in question or could have known of the remittances which the missionaries received from time to time; nor, on the other hand, was it possible for anyone in Liberia to have secured copies of the company’s letter paper. We are therefore convinced that the guilt of appellant has been proved beyond a reasonable doubt; and we do not hesitate to express our refusal to accept the implication which the appellant, in the face of the great preponderance of interlocking evidence, seeks to make.

In view of the categorical denial of appellant of the charge and also in view of the overwhelming chain of circumstantial evidence adduced at the trial which the appellant was unable to controvert, this Court cannot do otherwise under the law than affirm the judgment of the court below. Inasmuch as it has been our practice, in case of affirmation of the judgment in criminal cases where in our opinion the appellant brought up an unmeritorious appeal, to increase the punishment by approximately twenty-five percent, it is therefore the opinion of this Court that the judgment of the court below should be affirmed with this modification, that instead of nine months at hard labor as sentenced in the lower court, said appellant should be confined in the common jail of Maryland County for twelve calendar months from the date of his incarceration; and it is hereby so ordered.

Affirmed as modified.