People v. Marion
| Decision Date | 27 January 1874 |
| Citation | 29 Mich. 31 |
| Court | Michigan Supreme Court |
| Parties | The People v. Nazaire Marion |
Heard January 14, 1874
Exceptions from the Recorder's Court of Detroit.
Information for uttering, etc., a forged power of attorney. Conviction affirmed.
Judgment rendered on the verdict.
Byron D. Ball, Attorney General, S. Larned and Henry M. Cheever for the People.
Alfred Russell, for the respondent.
Christiancy, J., did not sit in this case.
This case, which was before us at the last term (28 Mich. 255) upon a question relating to the meaning of the information, now comes up after a further trial and second conviction, on exceptions to the rulings of the recorder.
A point was raised at the trial which, if sustained, would have put an end to the prosecution, and it is therefore necessary to consider it in the outset. It was objected tat the information did not properly allege the forgery of the certificate of acknowledgment or of the appended clerk's certificate, and that as the forgery of the power of attorney was not set up in any issuable way, the charge was entirely defective.
When this case was formerly before us, it was held by the court that the only forgery fairly indicated by the information was that of the acknowledgment and clerk's certificate, and that the express reference to those gave the defendant to understand that this was all he would have to meet. It is now urged that the charge does not even indicate this in any sufficient form. The ground of the objection is that defendant is only charged with uttering a forged power of attorney, and that the certificates form no part of the power, which is complete without them.
It is not claimed that such acts would not be the subject of forgery if purporting to have been made within the State, nor that the information does not clearly show that the forgery relied on was the fabrication of those documents; but the defense is based on the want of any sufficient allegation of the forgery of any thing but the instrument to which they were appended.
It is very well settled that a deed or a power of attorney may be valid as between the parties, and completely bind the grantor without any acknowledgment, unless the contrary is very plainly enacted. The acknowledgment is of a deed already executed. And if a defendant were charged with forging or uttering a forged deed, it would probably be no defense in most cases that the deed was not acknowledged.
But there are many purposes for which an unacknowledged deed is entirely useless. It does not prove itself. It cannot be recorded. It is invalid as against purchasers without notice, and cannot be proved by the registry though actually recorded.
Our statutes contemplate that all deeds shall be acknowledged, and provide for compulsory measures of proof where the grantor fails or refuses to makes the acknowledgment. --Comp. L. §§ 4216 to 4224. An unacknowledged deed is regarded as exceptional and improper. Where a married woman's separate acknowledgment is required the deed is void as to her without it, and it is a necessary step in the conveyance.--Dewey v. Campau, 4 Mich. 565; Fisher v. Meister, 24 Mich. 447.
Common usage and the language of many sections of our statutes will not permit us to hold that where a deed has been acknowledged, the statutory certificate may not properly be regarded as forming a part of the complete instrument. An acknowledged deed being the rule, and one not acknowledged the exception, it is the most natural form of expression to call the entire document a deed. Throughout the bill of exceptions the term "power of attorney" is frequently and generally used to embrace the appended certificates, even where objection is made to testimony affecting the latter. When a deed or the record of a deed is offered in evidence on a trial no one would imagine that all certificates belonging to it were not offered with it. An objection to such an offer, that the deed was not admissible alone, would be deemed frivolous. And an inspection of our recording laws will show that no meaning whatever can be attached to many provisions without giving such an interpretation to the various terms "deeds," "mortgages," "conveyances," and the like, as will include all their appurtenances. A similar remark applies to the tax laws, where the provision making deeds prima facie evidence occurs earlier in the section than that which requires them to be witnessed, acknowledged, and recorded, as in other cases.--Comp. L., § 1057.
We can see no reason for applying to an indictment for forgery any different rule than that which would apply in other cases, so long as the defendant is clearly informed of the precise charge against him. The statutes have been frequently amended so as to prevent failures of justice on trivial grounds. And where a word susceptible of two meanings is used with such averments as to show which sense is intended, the charge should be held good.
It may not be useless to refer to two or three precedents which bear upon this matter. In England it is made a specific felony to forge the attestation of a power of attorney. Mr. Archbold gives a form of indictment with two counts, one for the forging and the other for the uttering, and in the latter uses language almost identical with that used in the case before us, so far as this particular point is concerned.
The uttering is referred to a certain "forged power of attorney" with the name of the witness forged as an attesting witness to the execution thereof, the defendant knowing the witness's name and handwriting to be forged. The attestation is treated throughout as a part of the instrument, and there is no charge of uttering it separately.
In Queen v. Ritson, L. R., 1 C. C. R., 200, the parties to a genuine deed were held guilty of forgery for dating it back when they drew it, so as to appear to have been made earlier than a bankruptcy assignment. The language of the judges is very strong. Blackburn, J., defines forgery to include any act which fraudulently makes an instrument "purport to be that which it is not." And while the date of a deed is not usually material, yet in that case it became so. It has been held by this court that whatever may be the date of a deed, the time of its actual delivery is presumptively fixed by the acknowledgment, as not made previously.-- Blanchard v. Tyler, 12 Mich. 339. And this ruling went upon the ground that the deed was incomplete for the purposes of record until acknowledged, and that such papers are intended to be recorded.
In Regina v. Keith, 29 Eng. L. & Eq., 558, it was held that a prisoner who had engraved an ornamental border similar to that used upon certain bank bills was guilty of engraving "part of a note" purporting to be part of the bill or note of the bank in question, although he had gone no further. The court say the statute uses the term "note" not in its strict sense as the legal promise or obligation, but in its popular sense, which includes everything appearing on the paper, and that the ornamental part of a bank note is as much a part of the note as the words. No one would be deceived by a counterfeit which lacked it.
We think this rule sensible and just. And we think the information in the present case sufficiently described the power of attorney as one purporting to be acknowledged and certified, so as to make all the certificates a part of the description of that complete instrument.
It was also objected that our statutes do not punish the forgery of such certificates and similar official documents as purport to have been made elsewhere than within this State. As the acknowledgment and certifying of deeds of land in Michigan can only be had by virtue of the power given by our own laws for that purpose, they would necessarily be included by the narrowest interpretation. But there is no reason to believe our statutes were not designed to cover any forgeries or utterings of forgeries here which could be used here for fraudulent purposes.
The remaining questions all arose out of rulings upon the trial. The fraud complained of was the sale to one Edward Campau of certain interests in lands which were owned by the parties who purported to have executed the power of attorney. Campau, acting upon the faith of this, and the assurances of Marion and Redmond, was induced to pay them the price of the land. The attorney named in the deed, and who purported to have executed it, was Joseph Trombley, who was not seen by Campau, and who, upon the theory of the prosecution, is not a real person, or not the person who acted.
Testimony was received under objection, to show the preliminary dealings and representations of Marion with Campau, tending to prove among other things that...
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People v. Ramsey
...the submission of special questions to supplement and control a general verdict, did not apply in criminal cases. In People v. Marion, 29 Mich. 31 (1874), this Court affirmed the defendant's conviction of uttering a forged instrument. The defendant assigned error on the basis of the trial c......
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People v. McCuller
...conclusion. In fact, this Court specifically rejected special findings by a jury in a criminal case as long ago as 1874. In People v. Marion, 29 Mich. 31, 40 (1874), the Court rejected the defendant's claim that a statute allowing special findings in civil trials should apply to criminal tr......
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People v. Harper
...People v. Roat, 117 Mich. 578, 583, 76 N.W. 91 (1898), and because the then-governing statutes did not clearly permit it, People v. Marion, 29 Mich. 31, 40-41 (1874). We note that, more recently, Justice Levin observed, in his dissent in People v. Ramsey, 422 Mich. 500, 536, 375 N.W.2d 297 ......
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People v. Heflin
...v. Woody, 380 Mich. 332, 337-338, 157 N.W.2d 201 (1968), People v. Clark, 295 Mich. 704, 707, 295 N.W. 370 (1940), and People v. Marion, 29 Mich. 31, 40-41 (1874).56 See Clark, n. 55 supra, at 707, 295 N.W. 370.57 See Woody, n. 55 supra, at 337, 157 N.W.2d 201 (the defendant asserted that h......