Chambers v. State

• Decision Date: 08 October 1918
• Docket Number: 9535.
• Citation: 97 S.E. 256,22 Ga.App. 748
• Parties: CHAMBERS v. STATE.
• Court: Georgia Court of Appeals

97 S.E. 256

22 Ga.App. 748

CHAMBERS v. STATE.

No. 9535.

Court of Appeals of Georgia, Second Division

October 8, 1918

On Motion for Rehearing, November 12, 1918.

Syllabus by the Court.

The court did not err in overruling the demurrer to the indictment.

The first, second, third, fourth, and fifth special grounds of the motion for new trial not being complete within themselves, and it being necessary to refer to other portions of the record in order to understand the assignments of error, they cannot be considered by this court.

There is no merit in the ground that the colloquy which took place between the court and counsel for the defendant disparaged certain evidence offered by the defendant.

Counsel for the defendant made a motion for a mistrial, because of the inquiry by the court of counsel for the state as to the introduction of a certain paper. Under the facts as stated in the seventh special ground of the motion for a new trial, the court did not err in overruling the motion for a mistrial.

The eighth special ground is based upon the refusal of the court to permit the defendant to make another statement after the state had offered certain testimony in rebuttal. No abuse of discretion by the court appears from the facts as stated in the record. Jones v. State, 12 Ga.App. 133, 76 S.E 1070(2).

When considered in connection with the entire charge of the court and the facts of the case, the excerpt complained of is not error for any reason assigned.

There was some evidence to authorize the verdict, and, the trial judge having approved it, this court will not interfere.

Additional Syllabus by Editorial Staff.

An indictment charging a forgery of an order addressed to a county treasurer, directing payment to a named person for services of bailiff at a term of the superior court, signed by the sheriff, was subject to demurrer for lack of certainty.

Where a demurrer was filed before arraignment, but was not called to the court's attention until after arraignment, and after one juror had qualified in his voir dire and one had been put on defendant, the insistence came too late, and the court did not err in overruling it, in view of Pen. Code 1910, § 975.

Error from Superior Court, Haralson County; A. L. Bartlett, Judge.

D. C Chambers was convicted of forgery, his motion for new trial was overruled, and he excepts and brings error. Affirmed.

Lloyd Thomas, M. J. Head, and G. R. Hutchens, all of Tallapoosa for plaintiff in error.

J. R. Hutcheson, Sol. Gen., of Douglasville, and Griffith & Matthews, of Buchanan, for the State.

HARWELL J.

Chambers, with another, was indicted for the offense of forging an order for money, a copy of which is set out in the indictment, and is as follows:

"Georgia, Haralson County. To the Treasurer of Said County: Pay to W. H. Garner $20.00 for services rendered as bailiff at the January term of Haralson superior court for 10 days. This 6th day of February, 1914.

R. H. Parker, Sheriff."

The indictment, in the second count, charged the defendants with uttering and publishing as true the alleged order, with intent to defraud the county of Haralson and the county treasurer of said county, knowing the order to be forged. Chambers was put on trial, and demurred to the indictment generally, and also upon certain special grounds complaining of lack of certainty. This demurrer was overruled, and exceptions pendente lite were filed. The trial judge certifies that the attention of the court was called to the demurrer after formal arraignment, and after the jurors were put on the defendant, and after one juror had disqualified on voir dire and a second juror had qualified. Chambers was found guilty of uttering and publishing as true the alleged forged order, knowing it to be forged. He made a motion for a new trial upon the general grounds and certain special grounds. The motion was overruled, and he excepted.

Grounds 7 and 8 of the demurrer are as follows:

"(7) Said indictment should be quashed, because the script or warrant described therein was not a legal charge on any fund in the hands of the treasurer of Haralson county, because R. H. Parker, as sheriff, had no authority of law to draw a script, warrant, or order.

(8) Said indictment does not allege that R. H. Parker, as sheriff, was an officer authorized by law, and whose duty it was to draw said warrant."

It is insisted that the sheriff had no authority to issue the order on the county treasurer for paying bailiffs, and that the order had no "legal efficacy," and therefore cannot form the basis of a charge of forgery. Counsel for plaintiff in error cited Brazil v. State, 117 Ga. 32, 43 S.E. 460, and other authorities in support of this contention. It is said that:

"Forgery may be committed of any writing which, if genuine, would operate as the foundation of another man's liability or the evidence of his right. It is sufficient if the instrument forged supposing it to be genuine, might have been prejudicial." 19 Cyc. p. 1380.

If the writing purports to have "legal efficacy," it may be the subject of forgery.

"In other words, it was distinctly held that the paper under consideration purported to have 'legal efficacy,' and therefore did not come within the operation of the rule 'that the forgery of an instrument which, if genuine, would be void, is not a crime.' Such has been the test applied by this court in a number of cases wherein the question arose whether or not a particular writing was properly to be regarded the subject-matter of an indictment for forgery." Brazil v. State, supra. See, also, Underhill on Criminal Evidence (2d Ed.) 721, 722, § 430.

"As a general rule, any writing in such form as to be the means of defrauding another may be the subject of forgery. * * * The writing need not be such as, if genuine, would be legally valid. If it is calculated to deceive, and intended to be used for a fraudulent purpose, this is enough. * * * Orders--as, for instance, orders for money or goods--may be the subject of forgery; and it is not necessary that there should be an acceptance of the order to constitute the crime. * * * It has been held that the forgery of an order in the name of a person who, by reason of legal disability, would not have been liable on such order had it in fact been genuine, is punishable." 13 Am. & Eng. Ency. Law (2d Ed.) 1093-1096.

"The intent of the accused to defraud is the essence of the crime, and must be proved beyond a reasonable doubt; and, if it is shown, evidence that the party whose name was forged had no legal capacity to sign is irrelevant." Underhill, Cr. Ev. (2d Ed.) 722, § 422, and cases cited under footnotes 22 and 23; Hughes, Criminal Law, 250, §§ 916, 919.

"Since men are not legally presumed to know facts, a false instrument good on its face may work a fraud, though extrinsic facts show it to be invalid, even if it were genuine; therefore there may be forgery of such an invalid instrument. * * * That the person whose name is forged had no legal capacity to make the instrument is not a defense." 2 Bishop's New Crim. Law, 310, § 541, and People v. Krummer, 4 Parker, Cr. R. (N. Y.) 217, cited in footnote.

"It is not essential that the person in whose name the instrument purports to be made have the legal capacity to make it." 12 R.C.L. 151, § 14.

"Instruments which are not nudum pactum, but merely void on the ground that they are against public policy or ultra vires, are the subject of forgery. * * * The more liberal doctrine, and the doctrine which in the interests of good government should be sustained, is declared in People v. Krummer, 4 Parker's Cr. R. [ N.Y.] 219, where the court says: 'We are never called upon to determine whether in legal construction the false instrument or writing is an instrument of a particular name or character. It is a matter of perfect indifference whether it possesses or not the legal requisites of a bill of exchange, or an order for the payment of money or the delivery of property. The question is whether upon its face it will have the effect to defraud those who may act upon it as genuine, or the person in whose name it is forged. It is not essential that the person in whose name it purports to be made should have the legal capacity to make it, nor that the person to whom it is

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