Burke v. State

• Decision Date: 21 February 1922
• Docket Number: 17119
• Citation: 104 Ohio St. 220,135 N.E. 644
• Parties: Burke v. State Of Ohio
• Court: Ohio Supreme Court

135 N.E. 644

104 Ohio St. 220

Burke v. State Of Ohio

No. 17119

Supreme Court of Ohio

February 21, 1922

Criminal law - Forger - Section 13083, General Code - Sufficiency of indictment - Description of forged instrument - Constitutional law - Compelling one to testify against himself - Section 10, Article I, Constitution - Accused subpoenaed before grand jury -Failure to claim privilege - Duty to advise witness - Articles I to X, Amendments to U.S Constitution - Restrict federal and not state power.

1. Where an indictment for forgery under Section 13083, General Code, which section enumerates among other subjects of forgery a "promissory note for the payment of money or other property," alleges the forgery of a "promissory note" with the intent to defraud, and a copy of the instrument is fully let out in the indictment showing that it is an unconditional promise for the payment of a fixed sum of money on a day certain, the indictment is sufficient.

2. When a person is subpoenaed to appear before a grand jury then investigating an alleged crime and is examined as to his acts and conduct in relation thereto, and such person does not claim his privilege, he will he deemed to have testified voluntarily, and such examination does not constitute a violation of Section 10, Article I of ohio Bill of Rights which provides: "No person shall be compelled in any criminal case to he a witness against himself." In such case the state does not owe to such person the duty to first caution him and advise him of his constitutional privilege.

3. The first ten amendments to the Constitution of the United States, constituting a bill of rights, were not designed as limits upon the state government, in reference to their own citizens, but exclusively as restrictions upon federal power.

The facts are stated in the opinion.

Mr. M A. Daugherty; Mr. U.S. Brandt; Mr. A.C. Raver and Mr. John H Cooper, for plaintiff in error. Mr. C. A. Radcliffe, prosecuting attorney, for defendant in error.

MARSHALL C. J.

This cause comes to this court from the court of appeals of Fairfield county. In the court of common pleas of Fairfield county, at the October 1920 term, Joseph M. Burke was indicted, tried and convicted of the crime of forgery. A number of legal questions are presented in the error proceedings to this court, some of which arise upon exceptions to admission and rejection of evidence and others upon alleged error in the court's charge and in the refusal to charge certain requests made by counsel for the defendant. None of these questions was seriously urged by counsel for Burke in this court and upon examination none is found to be of sufficient importance to justify a discussion of same or a declaration of principles pertaining thereto. There are, however, two questions which are of sufficient importance to demand the serious attention of this court.

In the indictment the forged instrument was described as "a promissory note." The Ohio forgery statute, Section 13083, General Code, enumerates among the instruments which may be the subject of forgery "promissory note for the payment of money or other property." It was sought to test the sufficiency of this indictment by motion to quash and by demurrer, it being claimed that the indictment was fatally defective in not stating the precise instrument upon which an indictment for forgery can properly be predicated, it not being one of the instruments mentioned in the statute. It is urged that the identical words of the statute should be employed or the precise equivalent of those words. Measured by the standard argued by counsel in this court, the conclusion must necessarily be reached that this indictment is sufficient. The statute enumerates promissory notes for the payment of money and the term "promissory note" has such a well-settled and uniformly-accepted meaning that it is difficult to see upon what theory it can be claimed that a promissory note is not the precise equivalent of a promissory note for the payment of money. In Bouvier's Law Dictionary promissory note is defined as a written promise to pay a certain sum of money at a future time, unconditionally. We have examined a large number of cases in which this term is defined and almost without exception there is included as one of the necessary elements of the definition the payment of money. If upon the proof the instrument proved to be a promissory note not for the payment of money or other property a more serious question might arise. But upon consideration of the sufficiency of the indictment no serious difficulty is encountered. While it may be conceded that in most instances the employment of the identical words of the statute is the safest practice it is equally well settled that it is not always indispensable. It is only necessary that the offense itself should be set forth with clearness and certainty, and That the instrument should be described in such terms as to bring it substantially within the statutory provisions. Any other view would be out of harmony with the oft-repeated expressions of this court, beginning with Lougee v. State, 11 Ohio 68. and reiterated in Poage v. State, 3 Ohio St. 229, and many later decisions.

Attention is called to the provisions of Section 13586, general Code, as follows: "In all other cases when it is necessary to make an averment in an indictment as to an instrument, whether it consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which it is usually known, or by the purport thereof."

Clearly a promissory note is a designation which is universally understood as an instrument for the payment of money. We therefore find no error in overruling the motion to quash and the demurrer.

The language of the constitutional guarantee is very plain and simple, merely requiring that the accused is entitled "to demand the nature and cause of the accusation against him and to have a copy thereof."

The courts in recent times are to be commended for an effort to reach decisions based upon substantial principles rather than wornout forms. The niceties, refinements and technicalities of criminal practice had their origin in the early English practice at a time when the larceny of any value above twelve pence was punishable by death. It is not strange that the English judges would construe indictments strictly and rigidly enforce rules of practice to perfectly absurd limits in an effort to reach humanitarian results. Although the reason for such barrow and technical constructions has long since passed away, it is unfortunately true that too many courts, too closely wedded to precedent, fail to catch the modem spirit of adherence to the substantial and antipathy to the formal. Fortunately the number of such is comparatively small. The more recent tendency of legislatures is toward lightening the prescribed penalties, that of the courts toward leniency of sentence, and that of the executive branch toward liberality in exercise of pardoning power. There can therefore be no valid or sensible reason for applying absurd and senseless technicalities in the criminal practice and procedure. The sound, sensible rules which have found favor in the civil procedure should be given application to criminal procedure. The courts would fail to catch-the true spirit of Sections 13581 to 13596, inclusive, and 13745, General Code, if a different policy should be pursued. One of the most important and laudable purposes of organized government is to prevent and punish crime and to protect life and property against the aggressions of persons of criminal tendencies. The government of our state would be working at cross-purposes if the judicial branch should by the application of technical rules of practice and procedure make it difficult for the executive branch to afford this much-needed protection.

We now come to the second question presented. A plea in abatement was filed against the indictment in the court of common pleas, before the trial, which alleged in substance that Burke was subpoenaed to appear before the grand jury in the usual way, that he appeared and testified as a witness, that he was by the grand jury examined as to all matters touching the alleged crime and gave material testimony relating to said matters, that there was not other sufficient testimony to justify the finding of an indictment against him, that he had no notice of the intention of the grand jury to investigate his conduct or to attempt to indict him for any offense and did not know that any act of his was under investigation, nor was he cautioned by the grand jury or other officials of his right to refuse to testify con- cerning any matter which might tend to incriminate him, that he was ignorant of such right to so refuse and otherwise would not have testified, and that by reason thereof he was deprived of his constitutional right not to be compelled to be a witness against himself in any criminal case.

It will be observed that the plea in abatement did not allege that no other witnesses were examined, and it must also be conceded that the allegation in the plea that there was no other testimony offered sufficient to justify the finding of an indictment was purely a legal conclusion wholly unjustified on any theory, because no one could know what might be sufficient...