Beyerline v. The State

• Decision Date: 15 January 1897
• Docket Number: 17,945
• Parties: Beyerline v. The State
• Court: Indiana Supreme Court

45 N.E. 772

147 Ind. 125

Beyerline v. The State

No. 17,945

Supreme Court of Indiana

January 15, 1897

Rehearing Denied Feb. 25, 1897.

From the Allen Circuit Court.

Affirmed.

William P. Breen and John Morris, Jr., for appellant.

William A. Ketcham, Attorney-General, and N. D. Doughman, for State.

OPINION

Howard, J.

The appellant was charged by affidavit and information with the forging of a promissory note, and on the trial was convicted of the offense charged, and sentenced by the court.

The errors assigned and discussed by counsel relate to the sufficiency of the affidavit and information, and the special answer, and also question the correctness of the action of the court in overruling the motion for a new trial.

In the affidavit and information it is charged, amongst other things, that the appellant "did then and there feloniously, falsely, and fraudulently, make, forge and counterfeit a certain promissory note purporting to have been made and executed by Fred Beyerline, George Beyerline (whose name is signed to said note in German characters), Jacob F Schaefenacker, by and under the name of Jacob Schapvenacker, and Peter F. Poirson." In the copy of the note set out, these names appear as signed thereto, the name of George Beyerline being followed in parenthesis by the words "in German."

Appellant contends that "because the name signed to the note in German and said to be, in English, 'George Beyerline,' is not set forth in the copy of the note exactly as it appears upon the note, appellant believes the affidavit and information were bad and should have been quashed."

We do not think so. It is true that if the forging were in a foreign language, an exact copy of the forged document, as made in the original, should be set out in the indictment, or affidavit and information, and this should be followed by an English translation. But, as said by Mr. Bishop, 1 New Crim. Proced., section 564, "if there is simply a name, like the signature of a note in forgery, and it is, for example, written in German or Gothic characters, and is the same name in English as in German, there is no need to aver that the signature is in German, and add a translation," citing Duffin v. People, 107 Ill. 113, 47 Am. Rep. 431.

But in the affidavit and information before us, the State did aver that the name was signed in German characters, and added a like statement after the signature itself. There could be no such thing, strictly speaking, as a translation of the name. It was the same whether written in script or print, in Roman, italic, old English or German letters. Words in a foreign language must be translated that we may understand their meaning and the thoughts expressed; but proper names serve only to indicate the persons that are known by such names. It is certainly enough to give such names in English, and to state, as was done in this case, that the names were written in the characters shown in the document alleged to have been forged.

The first paragraph of answer, or defense, is a plea of former acquittal; and it is contended that the court erred in sustaining a demurrer to this plea.

It is averred in the plea so made that appellant had theretofore been charged by affidavit and information with the uttering and publishing of the same note he is here charged with forging, and that on a trial had upon such charge he had been acquitted. And the contention is that the charge of forging was included in the former affidavit and information.

Counsel say: "The first information charges that appellant did 'unlawfully, feloniously, fraudulently and knowingly utter, publish and pass, endorse and deliver to one Adam H. Bittinger, as true and genuine, a certain false, forged and counterfeit note,' etc. (here follows note); 'that of the signatures to said note, only that of the said Fred Beyerline and Peter Poirson were genuine; that the names of the said George Beyerline and Jacob Schapvenacher were false, and forged by the said Fred Beyerline with intent then and there and thereby feloniously, falsely and fraudulently to defraud the said Adam H. Bittinger,' etc."

It is admitted that such information was probably defective and might have been quashed upon motion; but it is contended that there was sufficient in it to sustain a conviction for forgery. Forgery, and the uttering of a forged instrument are two distinct crimes; and the charge in the information referred to in the plea of former acquittal is unquestionably one of uttering a forged instrument, and it is of that charge, and not of forgery, that the appellant was acquitted. Neither is it correct to say that the proof to sustain one charge is the same as would be required to support the other. It is true that it is stated in the information set out in the plea "that the names of the said George Beyerline and Jacob Schapvenacker were false, and forged by the said Fred Beyerline;" but that is by way of recital, and not as a charge, the words being simply descriptive of the signatures to the note. Surely if such statement and description had been made showing that the names had been forged by another person named, it would not be contended by counsel that such other person would thereby be sufficiently charged with the crime of forgery.

The twenty-ninth reason for a new trial had reference to certain evidence given by appellant's wife, over his objection. She was called by the State and gave the following evidence, which was objected to: "I was in the kitchen ironing, and he [the appellant, her husband] came with the note and he took me by the back of the neck and led me into the bedroom. That was our room, we were living out at his mother's house, and I did not know what he wanted; and after I went into the bedroom he handed me this paper. He said I had to sign Mr. Schaefenacker's name on there. * * * And I did not know how to spell his name I had to sign. He spelled the name. He stood right over me and made me sign it, and so I signed it."

The objection made to this evidence was that it detailed a confidential communication made to the wife by her husband, and also that if there was any forgery shown, she committed it. It does not appear, however, from this evidence that there was, in fact, any communication from the husband to the wife, whether confidential or otherwise. A communication implies something communicated, knowledge imparted by one to another. This is rather evidence of a crime committed by the husband, or, which he forced his wife to aid him in committing; not of a communication made by him to her of any crime which he had committed.

In Polson v. State, 137 Ind. 519, 35 N.E. 907, it was held competent for a wife to give evidence of the communication to her by her husband of a loathsome disease. "Such conduct on his part," said the court in that case, "was a gross breach of his duty as a husband, and he could not, therefore, shield himself from exposure in a court of justice, where such fact became material evidence in a cause, on the ground that it was a confidential communication."

In the conduct shown in the evidence here objected to, the husband, instead of being engaged in confidential communications, such as the marital relation would shield from public exposure, was occupied in a double wrong, abusing his wife, and using her as the instrument of his forgery.

It is not every conversation between husband and wife, nor every word or act said or done by either in the presence of the other, that is protected under the seal of secrecy, but only such communications, whether by word or deed, as pass from one to the other by virtue of the confidence resulting from their intimate relations with one another. Where the criminal, in seeking advice and consolation, lays open his heart to his wife, the law regards the sacredness of their relation, and will not permit her to make known what he...