Barron v. State
| Decision Date | 18 February 1913 |
| Docket Number | 4,285. |
| Citation | 77 S.E. 214,12 Ga.App. 342 |
| Parties | BARRON v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The indictment was not defective for any of the reasons pointed out in the demurrer.
(a) The charge that the filling in of the blanks and the signing of the name of "W. R. Amason, W. H. B.," was fraudulently done cured the defect due to the omission of the word "fraudulently" before the word "forge," in the beginning of the charge in the indictment.
(b) The accusation fully sets out the contents and location of the interlineations in the alleged forged instrument as completed.
(c) The alleged forged instrument was in effect an order for money and the amount thereof was stated; but in an indictment under section 245 of the Penal Code of 1910, it is unnecessary to allege that articles described in the forged instrument are of value.
(d) It was unnecessary for the indictment to allege what was the connection, if any, between the person whose name was alleged to have been forged and the person defrauded. These extrinsic facts, though requisite to render the writing efficient as the means of consummating a fraud, could be shown by the evidence. McLean v. State, 3 Ga.App. 660, 60 S.E 332.
(e) In an indictment for forgery it is not necessary to allege or prove that actual loss resulted from the forgery.
(f) The indictment alleging that the name of a person, other than either of the defendants, was signed to the instrument alleged to have been forged, it was not subject to demurrer upon the ground that it failed to charge that the defendants had signed the name of another; for, although it appears from the indictment that the alleged forged paper was signed by an agent, the indictment does not disclose that the agent referred to was one of the defendants.
(g) An indictment founded upon section 236 of the Penal Code of 1910 must allege that the forged paper was uttered and published as true, but in an indictment founded upon section 245 this allegation is not required; for, under the latter section the crime of uttering consists in publishing or tendering a paper knowing the writing to be forged.
An assignment of error, to the effect that a certain charge, in itself correct, is erroneous because of the court's failure to charge some additional proposition of law, is without merit. However, the charge of the court in the present case is not subject to the objection made; for an instruction to the effect that the jury must be satisfied that the instrument in question was fraudulently forged is equivalent to an instruction that they must be satisfied that the writing was made with the intent to defraud.
The court did not err in giving in charge to the jury the provisions of section 245 of the Penal Code of 1910. The accusation is founded upon that section, and the instructions of the court, for that reason, were specially applicable.
In the absence of a request for further instructions, the charge of the court upon the subject of reasonable doubt was sufficiently explicit, and not for any reason erroneous.
The guilt of the accused not being wholly dependent upon circumstantial evidence, it was not error, in the absence of a timely written request, to omit to give in charge to the jury section 1010 of the Penal Code of 1910.
While it is true that it is not within the power of a trial judge to direct a verdict in a criminal case, there was nothing in the language used by the judge which intimated any opinion as to the guilt of the plaintiff in error; and, as he fails to show injury, it does not lie in his mouth to complain of the act of the court as to another defendant. Montgomery v. State, 10 Ga.App. 801, 74 S.E. 285.
To constitute forgery, the writing made must purport to be the writing of another party than the person making it. The mere false statement or implication of a fact not having reference to the person by whom the instrument is executed will not constitute the crime. Where one executes an instrument, purporting on its face to be executed by him as the agent of the principal, he is not guilty of forgery, although he has in fact no authority from such principal to execute the same. This is not the false making of the instrument, but merely a false and fraudulent assumption of authority. The essence of forgery is the making of a false writing, with the intent that it shall be received as the act of another than the party signing it; and where it appears that it could not have been intended that the false writing should be received as other than what it purports to be the maker may be guilty of cheating and swindling, but cannot be guilty of forgery.
(Additional Syllabus by Editorial Staff.)
Forgery, at common law, is the false making or material altering, with intent to defraud, of any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability, and not the doing of something in the name of another which does not profess to be the other person's act.
J. L. Kent, B. B. Blount, B. H. Moye, Wm. Faircloth, C. S. Claxton, and E. L. Stephens, all of Wrightsville, for plaintiff in error.
Alfred Herrington, Sol. Gen., of Swainsboro, and Hines & Jordan, of Atlanta, for the State.
The various grounds of the demurrer, and all of the grounds of the motion for new trial save one, are sufficiently dealt with in the first six headnotes, and need no further discussion.
But we feel constrained to reverse the judgment refusing a new trial, upon the ground that the court committed error in two respects: (1) In instructing the jury as follows: "If you believe the defendant, Barron, in this case had authority to sign the name of W. R. Amason, per W. H. B., to a draft or order, in payment for seed that he actually purchased, he would not be authorized to sign it to a paper of that kind and procure money, pretending that he had purchased seed, when in fact he had not;" and (2) especially because, under the evidence adduced upon the trial, the defendant could not lawfully be convicted of the offense of forgery. This portion of the charge of the court we deal with in connection with what we shall say in regard to the evidence, for the reason that, while the instruction quoted was applicable to the testimony, it was, however, none the less erroneous and injurious to the accused, for one of the reasons stated in the assignment of error, to wit, that the jury would naturally be led to infer that the accused would be guilty of forgery, even if the judge had not intended his language to bear that construction. In our opinion, the jury were not authorized to find, in any view of the case, that the accused was guilty; for he was authorized to write the order. The evidence very plainly discloses that the accused did not falsely sign a name which he was not authorized to sign, but he signed Mr. Amason's name in the manner in which he was authorized to sign it, and to a paper which he was authorized to execute, although his use of his authority in the present instance may have been false and fraudulent. In our view of the case, the defendant may be guilty of cheating and swindling, or of obtaining money under false pretenses, but, under the evidence in the record, he cannot be convicted of the offense of forgery. There is some conflict in the authorities upon this subject, but the sounder view seems to be that forgery cannot be predicated of a writing which is not in itself false, is not intended to be a semblance of something other than what it purports to be; and the mere fact that a paper is issued with fraudulent intent is not, of itself, sufficient to constitute the crime of forgery, if the paper purports to be executed by an agent, although, in truth and in fact, there may have been no agency at all. The reason is plain; for, in the latter case, the fraud, if perpetrated at all, is effected by inducing confidence in the validity of the agency alleged to exist, whereas, in the case of real forgery, the fraud is committed by inducing the belief that the paper was executed or signed by him who purported to have signed it, when, in truth and in fact, such was not the case. In forgery the false instrument must carry on its face the semblance of that for which it is counterfeited, although it is not necessary that the semblance be exact. 2 Arch. Crim. Practice, 866.
The court did not err in overruling the sixth ground of the demurrer, in which this objection was raised against the indictment; for it did not appear from the indictment that the case was not one of forgery. It was only after the coming in of the evidence that it was manifest from the testimony of the prosecutor himself that the initials "W. H. B.," which appeared in the indictment, referred to the defendant, and also that the defendant was authorized by Mr. Amason to sign his name in the manner in which it was signed to the receipt for cotton seed. When the prosecutor testified that the defendant was authorized to sign his name in the ordinary course of his agency and whenever he bought cotton seed, and it appeared that in the present case the defendant had not signed the name otherwise than as he was...
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