Bennett v. State

• Decision Date: 08 July 1896
• Citation: 36 S.W. 947
• Parties: BENNETT v. STATE.
• Court: Arkansas Supreme Court

Page 947

36 S.W. 947

BENNETT v. STATE.

Supreme Court of Arkansas.

July 8, 1896.

Appeal from circuit court, Clay county; Felix G. Taylor, Judge.

J. P. Bennett was convicted of forgery, and appeals. Reversed.

Cate, Hughes & Cate and Block & Sullivan, for appellant. N. F. Lamb and E. B. Kinsworthy, Atty. Gen., for the State.

HUGHES, J.

There was no error in the judgment of the circuit court in overruling the demurrer to the indictment. It sufficiently charges the crime of forgery. It is not necessary to allege the mode in which the offense was committed, further than it is stated in this indictment; and it is not essential that the indictment should state that the forgery was committed by signing the name of another without his authority, in so many words. The charge that the defendant "did unlawfully, willfully, knowingly, and feloniously and fraudulently make, write, forge, and counterfeit a certain deed and acknowledgment thereof, in words and figures as follows, to wit [setting out a copy of the deed alleged to have been forged], necessarily imports that it was done without authority, and sufficiently states the manner of its execution. 2 Bish. Cr. Proc. § 437. It is not necessary to set out the particular acts in which the forgery consisted. State v. Maas, 37 La. Ann. 292; People v. Van Alstine, 57 Mich. 69, 23 N. W. 594; People v. Marion, 28 Mich. 255. And this is according to the weight of authority. But it is said in People v. Marion, 28 Mich. 255, that the omitting to do so is a practice not to be commended, as an instrument may be forged in various ways, and fairness to the accused would seem to require it. The case of Com. v. Williams, 13 Bush, 267, holds that it is necessary to do it. But this seems to be against the weight of authority. 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. We are of the opinion that the acknowledgment was only a part of the deed, and that the indictment, in charging forgery of the deed and of the indictment, charges but one offense.

One of the errors assigned in the motion for a new trial is "that the court's charge on the question of intent was erroneous, and there was no evidence to support the intent alleged in the indictment," which is that Bennett made the deed with the intent to defraud Burns, his heirs and estate. The counsel for the defendant contend, with much earnestness and plausibility, that inasmuch as the evidence was to the effect that Bennett forged the deed for the sole purpose of use as evidence for the defendant on the trial of Watkins, charged with taking timber from the land of another, the presumption of intent to defraud Burns, his estate and heirs, was fully rebutted, and that the defendant was not guilty of forgery, within the meaning of the law. Bishop, in his New Criminal Law (volume 2, § 597), says: "We have seen that forgery is an attempt to cheat. And an attempt, within the ordinary doctrine, exists only where the wrongdoer's intention is specific, — to do the particular criminal act. Whence it might be inferred that there can be forgery only where there is a specific intent to effect the particular fraud which the false writing is adapted to accomplish. But we are about to see that the adjudged law is not exactly so." "In the ordinary language of the books, there must be in the mind of the wrongdoer an intent to defraud a particular person or persons, though no one need in fact be cheated. Yet the intent is not necessarily, in truth, exactly this. It is rather that the instrument forged shall be used as good." Section 598. Consequently: "(2) If the forger means, for instance, to take up the bill of exchange or promissory note when it becomes due, or even if he does take it up, so as to prevent any injury falling upon any person, * * * or if a party forges a deposition to be used in court, stating merely what is true, to enforce a just claim, he commits the offense, the law inferring conclusively the intent to defraud; and (3) from the intent to pass as good, the law draws the conclusion of the intent to defraud whatever person may be defrauded. (4) Ordinarily there are two persons who may legally be defrauded, — the one whose name is forged, and the one to whom the forged instrument is to be passed. Therefore the indictment may lay the intent to be to defraud either, and it will be sustained by proof of an intent to pass as good, though there is shown no intent to defraud the particular person." See the authorities cited to support the doctrine of these sections. They are numerous. There must be a possibility of fraud, but that is sufficient. The making alone of the false writing, with the evil intent, is sufficient. No fraud need be actually perpetrated. 2 Bish. New Cr. Law, §§ 599, 602; Com. v. Henry, 118 Mass. 460; State v. Kimball, 50 Me. 409. "Where the intent alleged is to defraud the person whose name is forged, it should be presumed from the forgery, without further proof." 2 Bish. Cr. Proc. § 427; Henderson v. State, 14 Tex. 503; Rounds v. State, 78 Me. 48, 2 Atl. 673. The deed in this case, as appears from the evidence, was forged with an evil intent; was designed and intended to be used as good and as material evidence on the trial of Watkins upon a criminal charge; and was so used, and procured the acquittal of Watkins. It purports to be the warranty deed of John T. Burns, and it requires no argument to show that, had it been genuine, it might have made the estate or heirs of Burns liable, if the warranty should be broken, or assets descend to the heirs. It is shown that he left an estate, and a brother him surviving. We make no question that the proof of these facts is sufficient to sustain the charge of forgery. 1 Whart. Cr. Law, § 743; 3 Greenl. Ev. §§ 18, 103; Billings v. State, 107 Ind. 54, 6 N. E. 914, and 7 N. E. 763; West v. State, 22 N. J. Law, 212; U. S. v. Shellmire, Baldw. 370, Fed. Cas. No. 16,271. "The courts are not entirely agreed as to how far the law will presume, in criminal cases, that a man intends to accomplish results which are the natural and probable consequences of acts which he does knowingly and intentionally. On the one hand, some courts have laid down the rule broadly that the law will presume such intention, and have acted upon the rule so laid down, with no intimation that there might be exceptional cases in which the rule would not apply." Note to People v. Flack (N. Y. App.) 11 Lawy. Rep. Ann. 810, 811 (26 N. E. 267), under head "Presumption as to Natural Consequences of Acts." "The New York court holds that the rule that a party intends the ordinary and probable consequences of his act is only a presumption, which may be rebutted by competent evidence, and is for the jury." Id. 11 Lawy. Rep. Ann. 811. "But even in that state it has been stated that, whether it be denominated a presumption of law or a presumption of fact, an intent to kill would be necessarily inferred from a voluntary and willful act which has a direct tendency to destroy another's life, and which in fact does so." People v. Majone, 1 N. Y. Cr. R. 89. An intent to defraud must be necessarily inferred by the jury, in a prosecution for forgery, where the evidence shows it to have been committed with the design that the instrument forged should be used as good, and it is also shown that there was a possibility that some person might be injured thereby, or that person's estate might be thereby injured or made liable. An estate is a person, in contemplation of law.

The second ground of the motion for a new trial is "that there was a variance between the deed offered in evidence, and the deed set out in the indictment." The deed admitted in evidence, in setting out the consideration, has it thus: "The sum of five hundred and fifty dollars $550.00 dollars, to us paid by J. N. Wadkins." The deed set out in the indictment has it thus: "Five hundred and fifty dollars (550.00) to us paid by J. N. Watkins." In describing the lands, as to one piece, the deed offered in evidence has it, "north half," while the deed set out in the indictment has it, "the north half," adding the word "the" before "north half." In the blank form for relinquishment of dower in the deed offered in evidence, in setting out the consideration the word "sum" is crossed as indicated, while in the deed set out in the indictment it is not, but appears without the...