Opinion of the Court
ROBERT E. Quinn, Chief Judge:
A general court-martial in Japan convicted the accused of forgery in violation of Article 123, Uniform Code of Military Justice, 50 USC § 717. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. Intermediate appellate tribunals have affirmed the findings and sentence. The case is before this Court, on petition of the accused, to determine whether the evidence, apart from his confession, is sufficient to establish the corpus delicti of the offense.
The nature of the single assignment of error requires that we set out the evidence in detail. The accused presented a $100.00 money order to Private Fred C. Allen, an Army postal clerk, for payment. Written on the reverse side was an endorsement to the accused apparently made by Jack E. Baughman, the payee named in the order. Allen recognized this as a money order which had been reported stolen two days earlier at the Rest and Recuperation Center, Camp Nara, • Japan. He informed an assistant of the fact and the military police were called. In the meantime, he advised the accused that the instrument had been reported stolen. Denying this report, the accused asserted Baughman had endorsed it to him. Upon the arrival of the military police, the accused was taken into custody and questioned concerning his possession of the money order. He acknowledged that he had found it at the Rest and Recuperation Center. However, rather than attempt to locate the payee, or deliver it to the military authorities, he signed the payee’s name to an endorsement to himself, and attempted to cash it. This confession was reduced to writing and signed by the accused. After a pre- liminary showing of its vol-untariness, and of compliance with Article 31(6) of the Code, supra, 50 USC § 602, the confession was received in evidence over the accused’s [742]*742objection. This objection was rightly overruled because it was based on lack of opportunity by the accused to consult with counsel prior to his interrogation. See Anderson v. United States, 124 F2d 58 (CA 6th Cir).
At this point in the trial, it appeared that Baughman, the payee, had returned to the United States for separation, so his testimony was not presented to the court-martial. A nolle prosequi was then entered on a further charge of larceny. The accused did not testify, nor was any evidence presented in his behalf.
It is well settled that a conviction cannot rest exclusively upon the extrajudicial confession of an accused. The record must contain other substantial evidence indicating that the offense charged was probably committed, that is, that the accused did not confess to a crime that was never committed. United States v. Brooks, 1 USCMA 88, 1 CMR 88; United States v. Mounts, 1 USCMA, 114, 2 CMR 20; United States v. Uchihara, 1 USCMA 123, 2 CMR 29; United States v. Evans, 1 USCMA 207, 2 CMR 113; United States v. Isenberg, 2 USCMA 349, 8 CMR 149.
In the instant case, the rule requires the production of substantial evidence that someone, intending to deceive, falsely affixed Baughman’s signature to the postal money order, which signature would, if genuine, change the payee’s legal right to the proceeds thereof. Article 123, supra; Manual for Courts-Martial, United States, 1951, paragraph 202; People v. Dwyer, 342 Ill 105, 173 NE 765. Concerning the apparent legal efficacy of the signature there can be no doubt, and no contrary contention is presented by the record or urged by the accused. This is true of the element of intent to deceive as well, for it may be said without hesitation that one who falsely signs another’s name to an instrument and presents it for payment, representing that it has been properly endorsed to him, probably, at the very least, intends to deceive. Our problem is narrowed, therefore, to a determination of whether there is some substantial evidence, apart from the confession itself, that someone falsely signed the payee’s name to the money order in question.
Manifestly, the testimony of Allen, the money order clerk, does not supply the necessary corrobora- tion. It shows only that the accused presented a money order for payment, representing that it had been endorsed to him. Nothing about this suggests the commission of a crime. The clerk’s assertion that a money order had been reported stolen, coupled with his opinion that the money order presented by the accused answered its description, does not suggest a forgery. Indeed, it cannot be considered at all, for on its face it was not based on his personal knowledge of the facts reported. It is simply a statement that someone, completely unidentified, reported in an undisclosed manner, the theft of an undescribed money order. This assertion is hearsay. As such, it is incompetent as evidence and cannot be considered in determining the issue involved. Manual for Courts-Martial, United States, 1951, paragraph 139a; United States v. Mounts, supra.
The testimony describing the circumstances under which the confession was obtained is not germane to the problem. Therefore, we will not discuss it.
The only remaining evidence is the money order and the confession signed by the accused. The con- fession was properly received in evidence, for the preliminaries of voluntariness and full compliance with Article 31 (&) of the Code, supra, were satisfactorily established. Although the corpus delicti had not been established when the confession was offered, receipt of the confession was nevertheless within the discretion of the law officer. He would be required to withdraw the confession from the court’s consideration, if, at the close of the ease, the necessary corroboration has not been received. In this particular, paragraph 140a of the Manual, supra, provides:
[743]*743“. . . Usually the corroborative evidence is introduced before evidence of the confession or admission; but the court may in its discretion admit the confession or admission in evidence upon the condition that it will be stricken and disregarded in the event that the above requirement as to corroboration is not eventually met.”
Appellate Government counsel have advanced the argument that a cursory comparison of the signa- ture affixed to the confession and that appearing in the endorsement on the money order indicates that both were written by the same individual. The basis for this comparison was before the law officer when the confession was offered. When determining the question of the required corroborative evidence, he was authorized to make the comparison by paragraph 1435 of the Manual, supra, which provides:
“Whenever the genuineness of the handwriting of any person may be involved, as when it is desired to introduce into evidence against the accused a pay voucher or check purportedly signed by him or an admissible photostatic copy thereof, any admitted or proved . . . handwriting of such person shall be competent evidence as a basis for comparison by witnesses or by the court to prove or disprove the genuineness of the handwriting in question.”
When this comparison is made, it is argued, the conclusion that the accused, not Baughman, signed the money order is inescapable. Thus, in the absence of any indication of his authority to do so, the probability that it was a forgery is clearly apparent.
We are impressed by this argument. Although both the self-incriminatory statements of the accused and his signature appear in the same document, they are by no means inseparable.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
ROBERT E. Quinn, Chief Judge:
A general court-martial in Japan convicted the accused of forgery in violation of Article 123, Uniform Code of Military Justice, 50 USC § 717. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. Intermediate appellate tribunals have affirmed the findings and sentence. The case is before this Court, on petition of the accused, to determine whether the evidence, apart from his confession, is sufficient to establish the corpus delicti of the offense.
The nature of the single assignment of error requires that we set out the evidence in detail. The accused presented a $100.00 money order to Private Fred C. Allen, an Army postal clerk, for payment. Written on the reverse side was an endorsement to the accused apparently made by Jack E. Baughman, the payee named in the order. Allen recognized this as a money order which had been reported stolen two days earlier at the Rest and Recuperation Center, Camp Nara, • Japan. He informed an assistant of the fact and the military police were called. In the meantime, he advised the accused that the instrument had been reported stolen. Denying this report, the accused asserted Baughman had endorsed it to him. Upon the arrival of the military police, the accused was taken into custody and questioned concerning his possession of the money order. He acknowledged that he had found it at the Rest and Recuperation Center. However, rather than attempt to locate the payee, or deliver it to the military authorities, he signed the payee’s name to an endorsement to himself, and attempted to cash it. This confession was reduced to writing and signed by the accused. After a pre- liminary showing of its vol-untariness, and of compliance with Article 31(6) of the Code, supra, 50 USC § 602, the confession was received in evidence over the accused’s [742]*742objection. This objection was rightly overruled because it was based on lack of opportunity by the accused to consult with counsel prior to his interrogation. See Anderson v. United States, 124 F2d 58 (CA 6th Cir).
At this point in the trial, it appeared that Baughman, the payee, had returned to the United States for separation, so his testimony was not presented to the court-martial. A nolle prosequi was then entered on a further charge of larceny. The accused did not testify, nor was any evidence presented in his behalf.
It is well settled that a conviction cannot rest exclusively upon the extrajudicial confession of an accused. The record must contain other substantial evidence indicating that the offense charged was probably committed, that is, that the accused did not confess to a crime that was never committed. United States v. Brooks, 1 USCMA 88, 1 CMR 88; United States v. Mounts, 1 USCMA, 114, 2 CMR 20; United States v. Uchihara, 1 USCMA 123, 2 CMR 29; United States v. Evans, 1 USCMA 207, 2 CMR 113; United States v. Isenberg, 2 USCMA 349, 8 CMR 149.
In the instant case, the rule requires the production of substantial evidence that someone, intending to deceive, falsely affixed Baughman’s signature to the postal money order, which signature would, if genuine, change the payee’s legal right to the proceeds thereof. Article 123, supra; Manual for Courts-Martial, United States, 1951, paragraph 202; People v. Dwyer, 342 Ill 105, 173 NE 765. Concerning the apparent legal efficacy of the signature there can be no doubt, and no contrary contention is presented by the record or urged by the accused. This is true of the element of intent to deceive as well, for it may be said without hesitation that one who falsely signs another’s name to an instrument and presents it for payment, representing that it has been properly endorsed to him, probably, at the very least, intends to deceive. Our problem is narrowed, therefore, to a determination of whether there is some substantial evidence, apart from the confession itself, that someone falsely signed the payee’s name to the money order in question.
Manifestly, the testimony of Allen, the money order clerk, does not supply the necessary corrobora- tion. It shows only that the accused presented a money order for payment, representing that it had been endorsed to him. Nothing about this suggests the commission of a crime. The clerk’s assertion that a money order had been reported stolen, coupled with his opinion that the money order presented by the accused answered its description, does not suggest a forgery. Indeed, it cannot be considered at all, for on its face it was not based on his personal knowledge of the facts reported. It is simply a statement that someone, completely unidentified, reported in an undisclosed manner, the theft of an undescribed money order. This assertion is hearsay. As such, it is incompetent as evidence and cannot be considered in determining the issue involved. Manual for Courts-Martial, United States, 1951, paragraph 139a; United States v. Mounts, supra.
The testimony describing the circumstances under which the confession was obtained is not germane to the problem. Therefore, we will not discuss it.
The only remaining evidence is the money order and the confession signed by the accused. The con- fession was properly received in evidence, for the preliminaries of voluntariness and full compliance with Article 31 (&) of the Code, supra, were satisfactorily established. Although the corpus delicti had not been established when the confession was offered, receipt of the confession was nevertheless within the discretion of the law officer. He would be required to withdraw the confession from the court’s consideration, if, at the close of the ease, the necessary corroboration has not been received. In this particular, paragraph 140a of the Manual, supra, provides:
[743]*743“. . . Usually the corroborative evidence is introduced before evidence of the confession or admission; but the court may in its discretion admit the confession or admission in evidence upon the condition that it will be stricken and disregarded in the event that the above requirement as to corroboration is not eventually met.”
Appellate Government counsel have advanced the argument that a cursory comparison of the signa- ture affixed to the confession and that appearing in the endorsement on the money order indicates that both were written by the same individual. The basis for this comparison was before the law officer when the confession was offered. When determining the question of the required corroborative evidence, he was authorized to make the comparison by paragraph 1435 of the Manual, supra, which provides:
“Whenever the genuineness of the handwriting of any person may be involved, as when it is desired to introduce into evidence against the accused a pay voucher or check purportedly signed by him or an admissible photostatic copy thereof, any admitted or proved . . . handwriting of such person shall be competent evidence as a basis for comparison by witnesses or by the court to prove or disprove the genuineness of the handwriting in question.”
When this comparison is made, it is argued, the conclusion that the accused, not Baughman, signed the money order is inescapable. Thus, in the absence of any indication of his authority to do so, the probability that it was a forgery is clearly apparent.
We are impressed by this argument. Although both the self-incriminatory statements of the accused and his signature appear in the same document, they are by no means inseparable. Viewed from the standpoint of purpose, their distinctness, and thus, separability, is clear. The sole purpose of the former is to establish the guilt of the accused. The latter is affixed primarily to authenticate the confession. Many other cogent indications of separability exist. If otherwise admissible, a written confession may be received in evidence although it is unsigned. Gordon v. State, 252 Ala 492, 41 So2d 610; Bosko v. People. 68 Colo 256, 188 Pac 743; People v. Reed, 333 Ill 397, 164 NE 847. It has also been held that a confession freely and voluntarily given is admissible even though the accused’s signature thereto was procured by coercion. Gray v. Commonwealth, 293 Ky 833, 170 SW2d 870. Conversely, this Court has held that a signature attesting the reading of Article 31, supra, is admissible to identify the accused, although no confession was obtained, United States v. McNeill, 2 USCMA 383, 9 CMR 13. Finally, under paragraph 140a of the Manual, supra, neither the written confession, nor the accused’s signature thereto are indispensable to the proof of an acknowledgment of guilt. This may be proved by the testimony of anyone who heard him make it, without accounting for the written confession.
In the instant case, the signature to the confession was beyond question that of the accused. It was af- fixed voluntarily after a warning of the rights secured by Article 31, supra. It was, therefore, admissible as a proved specimen of the accused’s handwriting. United States v. McNeill, supra; United States v. Rosato, 3 USCMA 143, 11 CMR 143; Dean v. United States, 246 Fed 568 (CA 5th Cir); Hartzell v. United States, 72 F2d 569 (CA 8th Cir); Reining v. United States, 167 F 2d 362 (CA 5th Cir). Here the confession was received with- out limitation. It could, therefore, be considered for any proper purpose, including that proposed by Government counsel. Consequently, there was in the record substantial evidence, apart from the confession, that the accused signed the money order in question. This satisfies the requirement of corroboration.
[744]*744The decision of the board of review is ailirmed.