Barton v. State

• Decision Date: 13 February 1924
• Docket Number: 23746
• Parties: FRANK A. BARTON v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

197 N.W. 423

111 Neb. 673

FRANK A. BARTON v. STATE OF NEBRASKA

No. 23746

Supreme Court of Nebraska

February 13, 1924

ERROR to the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed.

REVERSED.

W. W Towle and Francis V. Robinson, for plaintiff in error.

O. S Spillman, Attorney General, and Lloyd Dort, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE and DEAN, JJ., ELDRED and REDICK, District Judges.

OPINION

ELDRED, District Judge.

The defendant was prosecuted in the district court for Lancaster county for having the unlawful possession of a forged instrument. The information charges:

"That Frank A. Barton, late of the county aforesaid, on or about the 28th day of April, A. D. 1923, in the county of Lancaster, and the state of Nebraska, aforesaid, then and there being, did then and there unlawfully, feloniously and knowingly have in his possession and custody a certain false, forged, and counterfeited bank check for the payment of money which is in the words and figures following, to wit: 'Chicago, Illinois, Apr. 25, 1923. No. . State Bank of Chicago 2-18, Member Federal Reserve System. Pay to the order of Frank A. Barton, $ 75.00, seventy five dollars only , dollars. R. J. Goodrich. Accepted Apr. 25, 1923, State Bank of Chicago, by A. J. Lindstrom'--with the intent then and there, and thereby to prejudice, damage or defraud person or persons, body politic or corporate, he, the said Frank A. Barton, knowing the same to be falsely made, forged and counterfeited."

From a verdict of guilty and judgment thereon, defendant brings the case to this court for review.

It is contended on the part of defendant that the information is fatally defective in failing to charge either that the possession of the check was with an intent to utter and publish the same as true and genuine, or that such possession was for the purpose of bartering, selling or disposing thereof. From the condition of the record it is difficult to definitely determine under what section of law the information was filed; but probably under section 9683, Comp. St. 1922. That is the section on which the trial court instructed the jury. Section 9683, in so far as it might apply to this case, provides:

"Whoever * * * shall have in his possession with intent to utter and publish as true and genuine, any of the above named false, forged, counterfeited, falsely printed or photographed matter, above specified and described, knowing the same to be false, altered, forged, counterfeited, falsely printed or photographed, with intent to prejudice, damage or defraud any person or persons, body politic or corporate, shall," etc.

The material elements of the offense of the unlawful possession of a forged instrument under the foregoing section are: (1) Possession, with intent to utter and publish as true and genuine, of the forged instrument, (2) knowing the same to be false, forged or counterfeited, (3) with intent to prejudice, damage or defraud any person or persons, body politic or corporate.

It will be observed that the information in the case at bar does not allege that the possession was "with intent to utter and publish as true and genuine," nor any words equivalent thereto.

To charge a statutory offense the information must contain a distinct allegation of each essential element of the crime as defined by the law creating it, either in the language of the statute or its equivalent. Newby v. State, 75 Neb. 33, 105 N.W. 1099; Altis v. State, 107 Neb. 540, 186 N.W. 524; Hase v. State, 74 Neb. 493, 105 N.W. 253; Gaweka v. State, 94 Neb. 53, 142 N.W. 287; 26 C. J. 955, sec. 107; 15 C. J. 361, sec. 25.

Some suggestion has been made that the information may have been filed under section 9684, Comp. St. 1922. That could in no manner relieve the present situation. It is possible that section 9684 was intended to cover possession of dies, plates and such instruments as might be used for the purpose of engraving, forging or counterfeiting, and not to cover instruments of the character involved in this case. But should it be construed to apply in a case of this character, it would merely emphasize the materiality of the element of the offense omitted from the information. The elements of the offense under the two sections referred to, so far as they might be construed to apply to possession of forged instruments, are practically the same, with the exception that in section number 9683 the possession must be "with intent to utter and...