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Congress has not States. 1

attempted to
to restrict the power of the

On the charge of uttering and publishing a forged instrument, with intent to defraud, the place where the instrument was uttered and published and not where the forgery was committed determines the jurisdiction of the court over the accused.2

5209, that every president, clerk, or agent of any national bank who, without authority from the directors, draws any order or bill of exchange, shall be deemed guilty of a misdemeanor, and the act of Congress, March 3, 1875, which provides that the circuit courts of the United States shall have exclusive cognizance of all causes and offences cognizable under the authority of the United States except as otherwise provided by law. Hoke V. People (Ill.), 10 Crim. L. Mag. 274.

Double Allegiance.-The reason for this is that every citizen of the United States owes a double allegiance; one to his own State and another to the general government. Snoddy v. Howard, 51 Ind. 411; s. c., 19 Am. Rep. 738; Moore v. Illinois, 55 U. S. (14 How.) 13; bk. 14 L. ed. 306. In Moore v. Illinois, supra, Justice Grier says: "Every citizen of the United States is also a citizen of a State or a Territory. He may be said to owe allegiance to two sovereigns and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. Thus an assault upon marshal of the United States and hinder

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ing him in the execution of legal process is a high offence against the United States for which the perpetrator is liable to punishment, and the same act may be also a gross breach of the peace of the State, a riot, assault, or a murder, and subject the same person to a punishment under the State laws for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment to be one in bar to a conviction by the other; consequently this court has decided, in the case of Fox v. Ohio. 46 U. S. (5 How.) 432; bk. 12. L. ed. 213, that a state may punish the offence of uttering or passing false coin, as a cheat or fraud practised on its citizens; and in the case of United States v. Marigold, 50 U. S. (9 How.) 560; bk. 13, L. ed. 257, that Congress, in the proper exercise of

its authority, may punish the same act as an offence against the United States.'

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1. People v. White, 34 Cal. 183; State v. Adams, 4 Blackf. (Ind.) 146; State v. McPherson, 9 Iowa, 53; Harlan v. People, 1 Doug. (Mich.) 207; Fox v. Ohio, 46 U. S. (5 How.) 410; bk. 12. L. ed. 213.

2. McGuire v. State, 37 Ala. 161. See Bishop. State, 30 Ala. 34: Gotobed's Case, 6 City Hall Rec. (N. Y.) 25; Lindsey v. State. 38 Ohio St. 507; United States. Plympton, 4 Cr. C. C. 309; United States v. Wright, 2 Cr. C. C. 296; In re Carr, 14 Cent. L. J. 495.

Uttering and Publishing -A person may be guilty of a forgery, though he did not write the instrument forged in the county in which the indictment was found, if he uttered and published it there. McGuire v. State, 37 Ala. 161.

If the forged instrument has been uttered and published in the state with intent to defraud, by means of an innocent agent there, it is no defence to the indictment, in the proper county in such state, to show that the accused was never within the state, or that he owes allegiance to another state or government. Lindsey

v. State, 58 Ohio St. 507.

Uttering Through Innocent Agent. --A person being at the time in one county may, through the hands of an innocent agent in another county, utter and publish, as true, a forged instrument, in the latter county, so as to be there guilty of forgery Bishop v. State, 30 Ala. 34.

Inclosing a False Instrument Directed to a Person at W, and depositing it in the post-office at B. to be forwarded, is not an uttering at W. United States v. Plymp ton, 4 Cr. C. C. 309; United States v. Wright, 2 Cr. C. C. 296.

Representing Instrument to be Valid.Though the forged instrument was first delivered by the prisoner out of the jurisdiction of the court, yet his subsequent assertion that it is good, and thereby obtaining more money on the security of it, within the jurisdiction, is a sufficient passing. Gotobed's Case, 6 City H. Rec. (N. Y.) 25.

Forgery of Time Check.-Where a person forges and utters, at Kansas City, Missouri, a time check upon a railroad

IX. EXTRADITION.-The subject of extradition of persons for crimes has been heretofore fully treated under the title EXTRADITION.1 In this article will be found a full treatment of the law of the extradition of persons charged with forgery.2

X. INDICTMENT.-1. Description of the Alleged Offence.-The elements of forgery to be charged are: (1) writing; (2) an evil intent; and (3) a false making of such writing. But it is not necessary to set out in what particular acts the forgery consisted.5

company having its treasurer and treasury within the State of Kansas, and such check is paid off by the agent of the company at Kansas City having authority to pay the valid obligations of the company, upon the supposition that the check is a true and valid instrument, the forgery is wholly consummated in Missouri, although afterwards the agent sends the check to the treasurer of the company at Topeka, Kansas, and is given credit there. for on his accounts as so much cash. re Carr, 28 Kan. 1; s. c., 14 Cent. L. J. 495.

In

Binding Over for Forgery and Indicted for Uttering.-Where a person is examined in the county court on the charge of forging an order, and committed by that court for trial in the superior court for the forgery only, he cannot be tried there for publishing and uttering the order. Mowbray's Case, 11 Leigh (Va.), 643.

Therefore, if the indictment against the prisoner counts for the forgery and for the uttering and publishing, the superior court will quash the latter counts. bray's case, II Leigh (Va.), 643.

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If the examing court remand to the superior court for trial, a prisoner charged with the forgery, the prisoner may be indicted in the superior court, not only for the forgery, but also for the instrument to be forged, and for acting and assisting in the forgery. Huffman v. Com., 6 Rand. (Va.) 685.

1. See ante, 7 Am. & Eng. Encycl. of L. 598.

2. For Forgery-Ashburton Treaty.-False entries made in the usual books of account, or memoranda on slips directing such entries by others, made by an officer or employee of a bank for the purpose of concealing his embezzlements, do not constitute forgery, as defined and recognized by the courts of England; and where a person is held for extradition to England for forgery on such proofs only of acts committed in England, he should be discharged on habeas corpus. In re Tully, 20 Fed. Rep. 812; s. c., 18 Rep. 263.

A Warrant of Extradition Allowed by the Dominion Government, under the Tenth Article of the Treaty of 1842 with Great Brit

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ain, recited that the party was accused of the crime of forgery, and had been committed for extradition thereon, without saying what forgery. Held, that resort might be had to the proceedings before the committing magistrate, and his report, on which the warrant issued, to ascertain what and how many forgeries the extradition was intended to apply to or include. Ex parte Hibbs, 26 Fed. Rep. 421; s. c., 7 Cr. L. Mag. 690.

The Prisoner was Superintendent of an Almshouse in Philadelphia, supported by the city. Goods were furnished to the almshouse by certain persons, who were entitled to receive warrants for the price. Such warrants prepared and signed were in the hands of W., the secretary of the almshouse, to be delivered to the proper parties on their signing the counterfoils. The prisoner falsely represented to W. that he was authorized to sign the names of the parties entitled, and upon signing their names obtained possession of the warrants, and they were cashed at the city treasury. The district attorney of Philadelphia swore that, according to the Pennsylvania criminal code and at common law, as interpreted there, the facts proved made out the crime of forgery. Held, the crime was forgery under the Ashburton treaty. In re Phipps (Ont. Q. B. Div.), 4 Cr. L. Mag. 865.

3. State v. Ford, 30 La. An. 797.

4. But where the prosecutor undertakes to set out in what the forgery consisted, he is bound to state it truly, so as not to mislead the defendant, and to prove it as stated. People v. Marion, 28 Mich. 255; s. c., 2 Green Cr. L. Rep. 572.

An Indictment for Forgery Must Allege the Acts Constituting the Forgery,—that defendant signed the name of another person without authority, or procured some one to do so, or the like. Alleging that the accused forged a certain writing, etc., is only a legal conclusion, and is not sufficient. So a count for uttering must allege acts showing how the uttering was done. Com. v. Williams, 13 Bush (Ky.), 267.

5. State v. Maas, 37 La. An. 992; People v. Van Alstine, 57 Mich. 69; s. c., 6

But all the ingredients of the offence must be set out with certainty and precision. Where an indictment is defective, how

Cr. L. Mag. 715; People v. Parker (Mich.), 34 N. W. Rep. 720; People v. Marion, 28 Mich. 255; s. c., 2 Green Cr. L. Rep. 572.

While, according to the precedents and authorities, it is not absolutely necessary in an information for uttering and publishing as true a forged instrument, etc., to set out particularly in what the forgery consisted, yet it is usual to do so in at least one count; and as an instrument may be forged in a great variety of ways, fairness to the accused would seem to require it, and the practice of omitting such statement is not to be commended. People v. Marion, 28 Mich. 255; s. c., 2 Am. Cr. L. Rep. 572.

1. State v. Jackson, 90 Mo. 156; United States v. Corbin, 11 Fed. Rep. 238. See Harrison v. State, 36 Ala. 248; People v. Tomlinson, 35 Cal. 503; Cohen v. People, 7 Colo. 274; s. c., 2 Denv. L. J. 156; State v. Cook, 52 Ind. 574; State v. Burgson, 53 Iowa, 318; s. c., 14 West. Jur. 224; State v. Dark, 8 Blackf. (Ind.) 526; State v. Foster, 30 Kan. 365; Lockard v. Com. (Ky.), 8 S. W. Rep. 266; Com. v. Williams, 13 Bush (Ky.), 267; Stowers v. Com., 12 Bush (Ky.), 342; Mount v. Com., I Duv. (Ky.) 90; State v. Anderson, 30 La. An. pt. 1, 557; State v. Watson, 65 Mo. 115; State v. McKiernan, 17 Nev. 244; People v Clements, 26 N. Y. 193, reversing Clements v. People, 5 Park. Cr. Cas. (N. Y.) 337; Rosenkrans v. People, 5 T. & C. (N. Y.) 467; s. c., 3 Hun (N. Y.), 287; State v. Davis, 69 N. C. 313; s. c., I Am. Cr. L. Rep. 538; State v. Dalton, 2 Murph. (N. C.) 379; State v. Houseal, 2 Brev. (S. C.) L. 219; State v. Luttrell, 85 Tenn. 232; s. c., State v. Knippa, 29 Tex. 295; Morris v. State, 17 Tex. App. 360; State v. Phelps, II Vt. 116; s. c., 34 Am. Dec. 672; Huffman v. Com., 6 Rand. (Va.) 685.

Certainty and Precision-False Affidavit and False Statement.-An indictment for an offence against the statute of March 3, 1823 (3 Stat. 771, § 1), for sending a false writing and affidavit to the pension-office, must set out all the ingredients of the offence with certainty and precision, and with sufficient particularity, that the court may know from the indictment whether he is to be tried for sending a writing and affidavit not genuine in its execution, or one genuine in its execution but false in its statement, and the particular statements which are false, and that they are material, or judgment will be arrested on motion. United States v. Corbin, 11 Fed. Rep. 238.

Allegation-Setting Out Instrument in Hæc Verba.-An indictment which alleges that the defendant falsely made, forged, and counterfeited an instrument within the statute, with intent to defraud, setting forth the instrument in hæc verba, is a sufficient description of the circumstances to constitute the offence. Rosekrans v. People, 5 T. & C. (N. Y.) 467; s. c., 3 Hun (N. Y.), 287.

Forgery of Promissory Note-Allegations.--An indictment drawn in conformity with the statute, and alleging substantially that defendant wilfully, feloniously, and with intent to cheat and defraud, did falsely make and forge a certain instrument of writing, to wit, a promissory note, purporting to be the act of one C. W. Johnston, a fictitious name and fictitious person, by which a pecuniary demand and obligation was created for the payment of $125 by the said Johnston to the order of the Continental Insurance Company of New York, a corporation organized under the laws of New York, which said false instrument and note is of the tenor following (and then follows a copy of the note), is not lacking in any averment necessary to prefer the charge of forgery in the third degree, and is sufficient. State v. Jackson, 90 Mo. 156.

Degree of Certainty.-Where an indictment for forgery charges the offence with a degree of certainty sufficient to enable the court to pronounce a proper judgement in case of conviction, an offenc is sufficiently charged thereby. Luttrell v. State, 85 Tenn. 232.

An indictment for forgery is sufficient, if the offence is substantially set forth, though not in the precise words of the statute. State v. McKiernan, 17 Nev. 224.

An indictment for uttering and publishing as true a certain false and forged promissory note charged that B. then and there, knowing the same to be false, forged . . . with intent to defraud, alter, and publish the said false and forged promissory note," etc., held sufficient. State v. Burgson, 53 Iowa, 318; s. c., 14 West. Jur. 224.

Receipt Against "Book Account."-An indictment charging the defendant with forging a receipt against a "book account" is too indefinite. State v. Dalton, 2 Murph. (N. C.) 379.

Setting Out Character-Allegation.Where an indictment charged that the defendant "did feloniously tender in payment to B. an altered bank bill of the

Indictment.

Dayton Bank, a bank created by the law of the State of Ohio, he (said defendant) then and there well knowing the same to be altered with felonious intent," held defective, as vague and uncertain with respect to character of the alleged alterations. Mount v. Com., 1 Duv. (Ky.) 90.

An indictment for forging a receipt for money, charged that the defendant feloniously, etc., altered, obliterated, and defaced the receipt, without otherwise averring the acts done by the defendant. Held bad for uncertainty. State v. Knippa, 29 Tex. 295.

Procuring to be Forged.-Where an indictment in one count charged the prisoner with forging and assisting in forging, and causing and procuring to be forged, it was adjudged well enough, being conformable to the act of the assembly and the precedents. State v. Houseal, 2 Brev. (S. C.) L. 219.

Where a false writing is sufficiently stated in the charge, and it was alleged that the accused knew it to be false, it was immaterial when, where, how, or by Lockard v. Com. whom it was forged.

(Ky.), 8 S. W. Rep. 266.

In an indictment for forgery in Virginia, it is not necessary to set forth in the count the persons whom the prisoner procured to forge the instrument, or with whom he acted or assisted in the forgery. A general description in the words of the statute is sufficient. Huffman v. Com., 6 Rand. (Va.) 685.

"Unlawfully and Feloniously Destroy." -A statute enacted "that every person whoshall falsely make, deface, destroy, etc., any record, etc., shall be deemed guilty of forgery. Held, that an indictment on that statute, charging that the defendant did unlawfully and feloniously destroy, etc., was objectionable for omitting the word 'falsely.'" State v. Dark, 8 Blackf. (Ind.) 526

Charging Destruction of Forged Instrument "Disposed of."-In an indictment for forgery, if it appears that the instrument is kept out of the possession and knowledge of the jury by the action of the prisoner himself, the act is equivalent to And the destruction of the instrument. such destruction is sufficiently alleged, under the circumstances, when it is charged in the indictment that the prisoner has State v. disposed of" the instrument. Davis, 69 N. C. 313; s. c., I Am. Cr. L. Rep. 538.

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"Passed, Uttered, and Published."-An information under Kansas Crimes Act, § 134, charged that defendant "passed, uttered, and published" the forged instrument. Held, that this was a statement of

fact, and not a conclusion of law, and was
sufficient. State v. Foster, 30 Kan. 365.

An

An indictment for forgery should state that the accused signed another's name to the forged paper, or procured some one else to do so, with intent to defraud. allegation that the accused "did forge the name of B." with such intent, is an allegation of a conclusion of law, and is insuffi cient. Stowers v. Com., 12 Bush (Ky.), 342.

'Did Feloniously Utter and Publish as True."-An indictment charging that the defendant did feloniously utter and publish as true, and with intent to defraud, a certain forged instrument, etc., knowing the same to be forged, is sufficient. Harrison v. State, 36 .la. 248.

An indictment charging that the defend"utter, ant did falsely and feloniously, publish, and pass or attempt to pass," a forged instrument, is bad on demurrer, alThe averment though it follows the language of the statute creating the offence. should be in the conjunctive form. People v. Tomlinson, 35 Cal. 503.

Under a statute which prohibits the passing, uttering, and publishing of forged paper, an indictment is good which charges the falsely, etc., selling, exchanging, and delivering as true a forged draft, knowState v. Watson, 65 Mo. 115. ing, etc.

An indictment for uttering a forged writing, which charges the accused with having the writing, knowing it to be false, presenting it to the party defrauded, representing it as genuine, and thereby obtaining property of value, is sufficient; the falsity of the writing being sufficiently stated in the charge that the accused knew it to be false, it being inmaterial when, where, how, or by whom it was forged. Lockard v. Com. (Ky.), 8 S. W. Rep. 266.

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Where the defendant was found guilty of uttering and publishing the false instrument, although the caption of the indictment and the indorsement thereon designated the crime as forgery," and the jury returned the verdict in the same form, held, under the evidence and instruction of the court, the jury found the verdict in accordance with the facts, the use of the word "forgery" was an informal one, and State no prejudice resulted from its use. v. Burgson, 53 Iowa, 318; s. c., 14 West. Jur. 224.

Artificial Persons-Description of.—In prosecution for forgery under statute "the president, directors, and co." is a good description of an artificial person. State 7. Phelps, 11 Vt. 116; s. c., 34 Am. Dec. 672.

502

An indictment charging the forging of

ever, under the statute, a conviction will be sustained if the offence charged amounts to a crime punishable at common law.1

a. STATING OFFENCE IN ALTERNATIVE.-An indictment for forging or uttering a forged paper, setting forth the offence in the alternative or disjunctive, and not in the conjunctive, form, is bad.”

"an instrument, purporting to be a bank bill for fifty dollars, purporting to be issued by the Georgia Railroad and Banking Company, an incorporated bank of the State of Georgia," follows the Code, and is good. Johnson v. State, 35 Ala. 370.

An indictment for the forgery of a note, "payable to the order of the People's Savings Bank," sufficiently charges a banking institution. State v. Pullens, 81 Mo. 387.

Charging Forgery in Official Capacity.Where prejudice would arise only from the utterance of a forged writing by the accused in an official capacity, an information failing to charge the utterance by him in such capacity is fatally defective. State v. Anderson, 30 La. An. pt. 1, 557.

"Purporting to be" genuine where omitted from an indictment has been held to be fatal. See Rex v. Carter, 2 East P. C. 985. But this rule is now changed, and where these words are omitted the court will now assume them to have been meant, and will intend it if the question of repugnancy is raised. See State v. Gardiner, I Ired. (N. C.) L. 27; Rex v. Birch, I Leach C. C. 79; s. c., 2 W. Bl. 790.

"Tenor," as used in an indictment, means words, and binds the pleader to the severest accuracy. Com. v. Parmenter, 22 Mass. (5 Pick.) 279; State v. Weaver, 13 Ired. (N. C.) L. 203; State v. Morton, 27 Vt. 310; Rex v. Powell, 2 East P. C. 976. However, mere clerical variations, where the sound is retained, do not vitiate the indictment. See Whart. Crim. Ev. §114; Whart. Cr. Pl. & Pr. SS 1067, 1073.

The word "knowingly" is not used in the definition of forgery in Texas Pen. Code, art. 431. It need not, therefore, be used in an indictment. Morris v. State, 17 Tex. App. 660.

The term " feloniously" need not be used in indictments for forgery in Colorado. Cohen v. People, 7 Colo. 274; s. c., 2 Denv. L. J. 156.

The use of the word "falsely" is not essential. The word " forged," as used in the indictment, necessarily implies that the writing was falsely made. McKiernan, 17 Nev. 224.

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State v.

A Defect in an Information for forgery, by using the word " affiant" for words prosecuting attorney," if the charge was preferred by proper officer, will not be available to reverse judgment. Billings v.

State, 107 Ind. 54; s. c., 57 Am. Rep. 77.

Inconsistent Statements in Indictment. An allegation in an indictment, that the defendant forged a certain instrument, is inconsistent with a subsequent allegation that he then and there knew said instrument was then and there false, forged, etc. State v. Cook, 52 Ind. 574.

Allegations of Venue.-An affidavit and information for forgery, under a statute providing that whoever forges or counterfeits any order for the payment of money or property, or any other instrument of writing, with intent to defraud any person, shall be imprisoned, the value of the property thus sought to be obtained is not the essence of the offence, and need not be stated, under a section of the statute providing that no indictment or information shall be invalid for failure to state the value, where the same is not "of the essence of the offence." Stewart v. State, III Ind. 554.

1. State v. Leak, 80 N. C. 403; State v. Lamb, 65 N. C. 419; State v. Walker, 2 Tayl. (N. C.) 229.

Order for Goods-Defective Allegation under Statute.-An indictment for forging an "order for delivery of goods," under a statute which fails to allege that the order was drawn by one having the power to dispose of the goods upon a person under obligation to obey, is defective. But in such case a conviction will be sustained for the offence at common law. State v. Leak, 80 N. C. 403.

Offence Charged Not Crime Under Statute.—When an indictment for forgery sets out the forged instrument in full, and it appears that the forgery is one that is punishable at common law, though not under the statute under which the prisoner is indicted, judgment may be pronounced, after conviction, for the common-law offence; the conclusion "against the statute," etc., being rejected as surplusage. State v. Lamb, 65 N. C. 419.

Arrest of Judgment-Refused When.— If an indictment for forgery contains such a charge as amounts to that crime at common law, judgment will not be arrested, although the prisoner be indicted under a State v. Walker, 2 Tayl. (N. C.)

statute.

229.

2. State v. Green, 3 Heisk. (Tenn.) 130; State v. Woodward, 25 Vt. 616; Rex v.

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