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be material. ALLEN V. M. MENDEL- it had, in fact, been paid. As its inSOHN & SON (reported herewith) dorsement was unauthorized, its purante, 1063.

chase and payment in no manner The test, according to Indiana Nat. affected the plaintiff's rights, and, Bank v. Holtsclaw (1884) 98 Ind. 85, therefore, did not preclude its acceptis whether title vested. In this case ance.” the check in question had been mailed Nor does the fact that the payee had to the payee, but a mistake had been begun an action against the drawer of made in his address, and the letter the check, which could only be maincontaining the check was delivered to tained on the assumption that the title another person of the same name at to the check had not vested in the the wrong address, indorsed with payee, affect the rights of the payee, plaintiff's name upon it, and trans- where such suit did not constitute an ferred to the defendant bank. In hold- irrevocable election and subsequently ing that the title vested in the payee, the payee amended his complaint the court says: “Ordinarily, when one against the bank so as to proceed person directs another to send him by against it upon the assumption that mail a check for money, and the the title had vested. Indiana Nat. same is inclosed in a letter properly Bank v. Holtsclaw (Ind.) supra. directed and deposited in the post- It was insisted in Crisp v. State office, such check at once becomes the Bank (1915) 32 N. D. 263, 155 N. W. property of the former, and is there

78, that, the check not having been in after at his risk. This the appellant the possession of the payee before the concedes, but insists that as a mistake time of the alleged conversion, an acwas made in the address in this case, tion of trover would not lie; that, no the title did not vest. This by no delivery having been made, the means follows. The title vested upon check at such time was the property the acceptance of the check. If de- of the maker, and not of the payee, and posited as directed, the acceptance was the payee, therefore, had no ground then made and the title vested; if not of complaint, as the liability of such deposited as directed, still the check, maker to her was still existing, the notwithstanding such misdirection, debt never having been paid. The might be accepted, and, when accepted, court answered this argument, howthe title vested. The mere fact, there- ever, by saying that the objection fore, that the letter was misdirected, came too late; that the case had been does not show that the title to the twice tried, and the point did not apcheck did not vest in the plaintiff. It pear to have been raised until the is insisted that as the (payee] did not motion for a new trial was made in the know that such check had been issued second action. It is further stated and mailed to him until after the that the delivery of the check to the [bank] had purchased and received plaintiff or her agent, and her right the money upon it, he could not there- to the possession thereof at the time after waive the mistake made in ad- of its payment by the defendant bank, dressing the letter, and accept the were admitted by the answer, and check.” This contention was answered therefore the question of ownership in the negative by the court, by say

of the check and the right to possesing: “The appellant had acquired sion was eliminated. The court, howno right,


hence there was ever, seems to assume the necessity of nothing to hinder such acceptance. a delivery, either actual or construcThe purchase of the check upon tive, as a condition precedent of the a forged or unauthorized indorse- action of trover. A constructive dement conferred no title, and, in con- livery by way of ratification of the templation of law, the check re- sending of the check through the mail mained untransferred. In this con- was, however, held sufficient. dition, it was subject to the plaintiff's It was urged in Lindenthal v. Northacceptance, though misdirected, and, west State Bank (1921) 221 Ill. App. when accepted, the title vested though 145, that no right of action vested in the payee of the check, because it withdraw such proceeds, is liable to was not shown that the checks were the corporation, where it appears that delivered to him. The court, however, such person, as secretary, had no aufound that not only was there evidence thority to act for the corporation, and of the payee's possession, but the fact that the money so withdrawn was destood admitted by the pleading. voted to his personal use. Buena

Vista Oil Co. v. Park Bank (1919) 39 d. Application to various states of fact.

Cal. App. 710, 180 Pac. 12. This question has usually arisen

An express company which received where the check has been cashed and

checks and drafts issued or indorsed collected by a bank, but the same

to a corporation, upon the indorsement principle has been applied where a

of the corporation forged by an emcorporation or individual other than a

ployee, and which issued money orders banker has cashed it. ALLEN V. M.

for the amount of the checks and MENDELSOHN & Son (reported here

drafts, payable to various persons; with) ante, 1063; Hamlin's Wizard

which money order the employee afterOil Co. v. United States Exp. Co.

wards converted to his own use, is (1914) 265 Ill. 156, 106 N. E. 623,

liable to the corporation for the 7 N. C. C. A. 638; Meyer v. Rosen

amount of the checks and drafts thus heim (1903) 115 Ky. 409, 73 S. W.

received. Hamlin's Wizard Oil Co. v. 1129; A. Blum Jr.'s Sons v. Whipple

United States Exp. Co. (1914) 265 Ill. (1907) 194 Mass. 253, 13 L.R.A.(N.S.)

156, 106 N. E. 623, 7 N. C. C. A. 638. 211, 120 Am. St. Rep. 553, 80 N. E. 501;

The right of the payee to maintain Shaffer v. McKee (1869) 19 Ohio St.

an action and recover against the 526; Graton & K. Mfg. Co. v. Redels

bank was sustained in Lindenthal v. heimer (1902) 28 Wash. 370, 68 Pac.

Northwest State Bank (1921) 221 Ill. 879.

App. 145, although the payee had acUsually the action is by the payee, cepted from the employee who forged but in some cases it has been by an

the indorsement property into which owner other than the payee. Talbot

the proceeds of the check had gone, the V. Bank of Rochester (1841) 1 Hill

amount received, however, not being (N. Y.) 295. In fact, in this case, the

sufficient to cover the defalcation. plaintiff did not appear to be a party The fact that the payee did not give to the certificate of deposit there in- the bank notice immediately upon disvolved. Apparently, the plaintiff pur

covery of the forgery was held not to chased the certificate, but it was in

prevent a recovery in Lindenthal v. dorsed directly from the payee to one Northwest State Bank (Ill.) supra, to whom the plaintiff sent it inclosed

where it is stated that no business rein a letter. It was held, however, that

lation whatever existed between the the plaintiff being the owner, and the

payee and the bank in question, and indorsee never having assented to the

knowledge of the forgery did not come indorsement, the transfer to them was

to the payee before the proceeds thereincomplete, and plaintiff retained the

of had been used by the employee who right to alter or strike out the indorse

committed the forgery; hence, no duty ment.

to give notice was due from the payee A bank which, without previous

to the bank. dealings with a corporation and unac

In Burstein v. People's Trust Co. quainted with its officers or their pow

(1911) 143 App. Div. 165, 127 N. Y. er, accepts a check by its terms pay

Supp. 1092, the payee was allowed to able to the order of such corporation

recover of a bank to which the check and bearing the indorsement only of

had been transferred, notwithstanding the payee's name by its secretary, col

such payee had unsuccessfully atlects the amount of such check and

tempted to collect from the drawer of places it to the credit of the person the check. presenting it, and, without making In Arnold v. Cheque Bank (1876) any inquiries to the author- L. R. 1 C. P. Div. (Eng.) 578, 45 L. J. ity of such person, permits him to C. P, N. S. 562, 34 L. T. N. S. 729, 24

31 A.L.R.-68.


Week. Rep. 759, the draft in question action for the recovery of the amount had been purchased by the payee for of the check. The court treats the the purpose of making a remittance, money paid to the defendant bank as and had been indorsed by him special- not the money of the drawers of the ly to his creditor, and deposited in a check, but the money of the drawee letter addressed to the creditor. The bank which paid it; hence, the money letter was opened and the draft ex- received by the defendant bank was tracted, and the indorsement of the held not to be the money of the payee, creditor forged. The court states it nor to have been received for the use to be clear that the property in the

of the payee.

The drawers of the draft had never in fact passed out of check and the payee were held to be the plaintiff's payee, for indorsement, in no way affected by the payment of according to the court, consists not the amount of the check by the drawee merely of the written indorsement on bank to the defendant bank on the the draft, but there must be a delivery forged indorsement. The deposits of with intention to transfer the prop- the drawers on which they had drawn erty, and in this case there was no the checks were still their money, and delivery of the draft to the indorsee. the indebtedness of the drawers to

the payee, for which the checks were III. Minority rule.

given, still existed and warranted an The Pennsylvania supreme court

action by the payee against his debthas held the payee of a check not en

ors, the drawers of the checks. It is titled to recover the amount thereof

further stated that the money paid the from a bank which cashed it for an

defendant bank on the several checks employee of the payee, upon an unauthorized indorsement, and subsequent

was the money of the drawee bank, in ly collected the same from the drawee.

which neither the drawers of the Tibby Bros. Glass Co. v. Farmers &

check nor the plaintiff had any interM. Bank (1908) 220 Pa. 1, 15 L.R.A.

est, and, having been paid on forged (N.S.) 519, 69 Atl. 280. The decision

indorsements, it might be recovered in this case rests upon the theory that from the defendant by the paying the action of the defendant bank in

bank. cashing the check created no relation Compare Chicago, B. & Q. R. Co. v. between it and the payee that would Burns (1901) 61 Neb. 793, 86 N. W. warrant the latter in maintaining an 493, supra, II. a.

W. A. E.

MELVIN C. TIPTON, Piff. in Err.,


Oklahoma Criminal Court of Appeals - February 17, 1923.

(- Okla. Crim. Rep. 212 Pac. 612.) Robbery — forcible collection of claim.

1. In a robbery case, where the taking of the property is for the purpose of forcibly collecting uncertain unliquidated damages as compensation for an alleged felonious assault on the taker's wife, such forcible taking may constitute robbery, and does not come within the rule that the forcible taking and retention of the property of another for the purpose of paying or securing the payment of a debt might not be deemed robbery.

[See note on this question beginning on page 1081.] Indictment power to amend.

language as to charge robbery in both 2. Where original complaint the first and second degrees, it is not charging robbery is couched in such error for the court to permit the coun

Head notes by BESSEY, J.


(- Okla. Crim. Rep. 212 Pac. 612.) ty attorney to amend the information property, which, when procured, are to charge robbery in the first degree delivered to the person making the asonly. Held, further, that the prelimi- sault, while the person assaulted is nary hearing was sufficient to support under continued fear and duress, this the charge as amended.

constitutes robbery under the circum[See 14 R. C. L. 192; 3 R. C. L. Supp. stances outlined in the opinion. 193. See also note in 7 A.L.R. 1545.] [See 23 R. C. L. 1146, 1147; 3 R. C. Criminal law - instructing on crime

L. Supp. 1344.] not supported by evidence.

- what constitutes. 3. Where one is charged with rob

5. The taking of something of value bery in the first degree, the court com

from another by means of force or mitted no error in failing to instruct personal fear is the gist of the offense the jury, defining robbery in the sec

of robbery. Whether the motives ond degree, when there was no evi- leading up to the robbery grew out of dence offered tending to show a lower avarice, revenge, or other like motive, degree of the offense.

is immaterial, and the court committed [See 14 R. C. L. 786 et seq.; 3 R. C.

no error in refusing to permit an exL. Supp. 285; 4 R. C. L. Supp. 919.]

tended examination touching such mo

tives. Robbery — compelling act by another. [See 23 R. C. L. 1139; 3 R. C. L.

4. Where one points a pistol at an- Supp. 1342.] other, and, with threats and menace Evidence — sufficiency. of death, compels the person assaulted 6. The evidence as a whole, as outto leave the presence of the one mak- lined in the opinion, held sufficient to ing the assault to procure money and support the charge of robbery.

ERROR to the District Court for Bryan County (March, J.) to review a judgment convicting defendant of robbery in the first degree. Affirmed.

The facts are stated in the opinion of the court.

Mr. Warren B. Phillips, for plaintiff State, 11 Okla. Crim. Rep. 259, 145 Pac. in error:

315; Cannon v. Territory, 1 Okla. The court erred in permitting the Crim. Rep. 600, 99 Pac. 622. state to file an amended information Messrs. Hatchett & Ferguson, Mccharging the defendant with robbery Pherren & Cochran, and J. A. Shirley in the first degree.

also for plaintiff in error. Rex v. Edwards, 5 Car. & P. 518, 1 Messrs. George F. Short, Attorney Moody & R. 257; Slover v. Territory, 5 General, and N. W. Gore, Assistant Okla. 506, 49 Pac. 1009; 22 Cyc. 436. Attorney General for the State:

Defendant was entitled to an in- Defendant was guilty of the crime struction of not guilty, because of a charged. variance between the aliegations of Houston v. Com. 87 Va, 257, 12 S. E. the information and the proof.

385; State v. Luhano, 31 Nev, 278, 102 Rex v. Edwards, supra; Monagham Pac. 260. v. State, 10 Okla. Crim. Rep. 89, 46 L.R.A.(N.S.) 1149, 134 Pac. 77; People

Bessey, J., delivered the opinion

of the court: v. Church, 116 Cal. 300, 48 Pac. 125; Slover v. Territory, 5 Okla. 506, 49

Melvin C. Tipton, plaintiff in erPac. 1009; Tyson v. United States, 7 ror, was on April 1, 1920, by verdict Okla. Crim. Rep. 433, 122 Pac. 733; of a jury, found guilty of the crime Cochran v. State, 4 Okla. Crim. Rep. of robbery in the first degree, com379, 111 Pac. 974.

mitted on March 1, 1920. His punIt was the duty of the court to give ishment was fixed at confinement in an instruction on robbery in the sec

the state penitentiary for a term of ond degree, because it is the court's duty to instruct upon all phases of the

ten years. From the judgment on case, regardless of whether the de

the verdict he appeals. fendant requests it or not.

The facts in the case, as shown Rhea v. Territory, 3 Okla. Crim. by the state's evidence, may be sumRep. 230, 105 Pac. 314; Monagham v.

marized as follows: State, 10 Okla. Crim. Rep. 89, 46 L.R.A.

The accused was a resident of the (N.S.) 1149, 134 Pac. 77; Nelson v. city of Durant. In the early part of December, 1919, he sold his busi- there was unnecessary; that they ness in Durant and went to Burk- were just having an argument over burnett, Texas, where he was tem- a matter of business which they porarily employed, leaving his wife could adjust among themselves. and two children in Durant, at the The policeman then stated that he home of a Mrs. Edwards. Some- came there as a police officer, on retime in February, 1920, he received quest, but that if he was not needa letter from his wife, complaining ed he would leave, and then departof insulting treatment towards her ed without further action. by their family physician, a Dr.. In this connection Dr. Armstrong Armstrong. Upon receipt of this claims that the accused up to this letter accused returned home, and time had been threatening to kill his wife informed him more fully him; that he kept his pistol pointed concerning the abusive treatment towards him, and, when the officer complained of. The accused was approached, the accused told the not satisfied that his wife had fully doctor not to divulge to the officer disclosed what had occurred be- the nature of the difficulty, that if tween her and the doctor, and after he did so he could kill him, and that many futile efforts to induce her to he placed the pistol in his rightmake further disclosures, and hav- hand coat pocket and kept his hand ing for several days worried over in this pocket during the time the what had been disclosed and what officer was in the room, in such a he suspected the truth in fact might manner as to be able to execute his be, he took his two children, on threat. After the officer left the acMarch 1, 1920, over to the home of cused took the pistol out of his pockhis mother, and then went to a et, and again pointed it at the docneighbor's house and telephoned Dr. tor. The accused claims that the Armstrong to come to his rooms im- doctor admitted to him that he had mediately. Soon thereafter Dr. abused, mistreated, and insulted the Armstrong arrived at the home of wife of the accused, and offered a the accused, where he was met at monetary settlement to right the the door by the wife of the accused wrong he had done, so far as he was and invited in; upon stepping in- able to do so; that after an extendside the door the accused covered the ed discussion the doctor offered to doctor with a pistol, and ordered pay the accused the sum of $1,000 him to hold up his hands, directing in cash, to turn over to him a nearly his wife to search the doctor for new Dodge automobile, and to give weapons. Finding no weapons, the him a note for $5,000, secured by a doctor, with his hands still held real estate mortgage. The doctor, aloft, was ordered, in the face of on the other hand, testified that the this pistol pointed towards him, to admissions made concerning the sit down and relate to the accused treatment of the wife of the accused all of the transactions that had oc- were made at the point of a pistol, curred between the doctor and the through fear of immediate death, wife of the accused in the latter's and that the accused with a drawn absence. Mrs. Edwards, in a room pistol exacted a monetary settleadjoining, heard the accused say: ment; that he, while laboring under "I ought to shoot you like a dog." this fear and menace, agreed to pay Anticipating trouble, Mrs. Edwards the accused $1,000, to turn over to went to a neighbor's house and him the automobile, and to execute telephoned the police; a few minutes the $5,000 note in favor of the aclater a policeman came, and Mrs. cused. Edwards detailed to the policeman Either by agreement or through what she had heard. The policeman imminent fear of his life, Dr. Armthen went inside the room, and was strong left the house and went to informed by both Dr. Armstrong the bank for the purpose of securand the accused that his presence ing the $1,000, followed by Tipton

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