Cox v. State

• Decision Date: 18 February 1889
• Citation: Cox v. State, 66 Miss. 14, 5 So. 618 (Miss. 1889)
• Court: Mississippi Supreme Court
• Parties: WILLIAM COX v. THE STATE

5 So. 618

66 Miss. 14

WILLIAM COX v. THE STATE

Supreme Court of Mississippi

February 18, 1889

APPEAL from the circuit court of Monroe county, HON. LOCK E HOUSTON, Judge.

Appellant Cox, was tried and convicted for the crime of forgery.

The indictment, caption omitted, was in the following form: The grand jurors of the state of Mississippi elected, summoned impanelled, sworn, and charged to inquire in and for the body of M o n roe county, state of Mississippi, at the term aforesaid, of the court aforesaid, in the name and by the authority of the state of Mississippi, upon their oaths present that Wm. Cox, late of the county aforesaid, on the 22d day of October, 1888, in the county aforesaid, and within the jurisdiction of this court, did unlawfully, knowingly falsely, and feloniously forge and counterfeit and alter a certain writing, purporting to be a tax receipt issued by the sheriff and tax-collector, J. H. Marshall, of Monroe county to one G. H. Lann, for the sum of one dollar for the taxes due by said G. H. Lann to said county and state, the tenor whereof is as follows:

No. 3184, sheriff's office, Monroe county, Miss., page--. December 22, 1887.

Received of G. H. Lann one dollar, state, county, school fund, and other taxes for the fiscal year 1886 as per following statements and descriptions of personal property, to wit:

Total personal assessment three hundred and twenty dollars, rate per cent. , dollars , cents , division of sec. S. , T. , R. , acres, ; state tax, ; common county, ; school, 1887, ; special, poll. Total, one dollar.

J. H. MARSHAL,

Sheriff and Tax-collector, Monroe County,

by which said forged writing a certain pecuniary demand of one dollar of the county of Monroe and state of Mississippi against said G. H. Lann, for taxes as aforesaid, was then and there purported to be discharged, with the felonious intent to injure and defraud the said state and county and the said G. H. Lann, against the peace and dignity of the state of Mississippi.

W. B. WALKER, District Attorney.

The indictment contained another count, similar to the above, alleging a forgery at the same time and in the same manner of a tax receipts given to Mrs. N. B. Byrd, and also counts for uttering and publishing the receipt in both instances.

The defendant moved to quash the indictment because it showed that the tax receipts, after the alleged alteration, were invalid instruments, and, therefore, did not, and could not discharge any liability of the state or county or G. H. Lann, who were alleged to have been defrauded, or likely to be, by the receipt.

This motion was overruled.

The trial developed the following facts as testified to by witnesses for the state: The defendant, Cox, had furnished G. H. Lann with supplies during the year 1887, and had promised Lann to pay for 1887 his taxes and the taxes of Mrs. N. B. Byrd, his mother-in-law, and to enable defendant to find out what lands Mrs. Byrd paid taxes upon, Lann gave defendant a tax receipt for the taxes paid by Mrs. Byrd for 1886. When this was returned by defendant to Lann at the close of the year 1887, the date "December 22, 1886," had been erased and "December 22, 1887," had been substituted therefor, and at the same time defendant delivered to Lann a receipt which had been issued by the sheriff to defendant in 1886 for his personal tax for that year. This receipt had been changed by the erasure of the name Wm. Cox and substitution therefor of the name of G. H. Lann, and by erasure of the figures, showing the amount of taxes paid, and substituting therefor another amount. These two altered receipts were given by defendant to Lann with the statement by defendant that he had paid the taxes for 1887 as agreed, and charged the same to Lann on account.

One witness testified that defendant had been seen "figuring upon the receipt," but defendant, in his own behalf, as well as other witnesses, denied all the foregoing statements, and defendant exhibited his accounts against Lann to show that he had never charged upon them the amount of any tax receipts.

The trial resulted in a conviction and sentence of defendant to two years' imprisonment in the penitentiary.

Judgment reversed and cause remanded.

Clifton & Eckford, for appellant.

The taxes due by Lann and Byrd, for the year 1886, had been paid by them. How then could the state, the county, or Lann or Byrd be injured or defrauded by giving to Lann a receipt for what had already been paid? Could defendant be legally convicted under the facts in testimony for the state? Clearly not. The instrument forged must be such as, if genuine, would create, diminish, or discharge some pecuniary liability. 1 Whar. Cr. L., §§ 692, 696; People v. Stearns, 21 Wend. 414; 2 Bish. Cr. L., §§ 523, 533, 538; Commonwealth v. Dallenger, 118 Mass. 439.

Gilleylen and Leftwich, for appellant.

Forgery is a common law offense, belonging to the general class of cheats, and is defined to be "The fraudulent making of a false writing which, if genuine, would be apparently of some legal efficacy. 2 Bish. Cr. L., § 523.

Cox was indicted, under § 2827 of our code of 1880, but the statute does not change the offense of forgery as known at common law. Commonwealth v. Ayer, 3 Cush. 150; State v. Ames, 2 Greenl. 365. A writing, to be the basis of an indictment for forgery, must be of such form as apparently to be of same legal efficacy. There seems to be no exception to the application of this principle. 2 Bish. Cr. Law, §§ 533, 538 et seq.; Whart. Cr. Law, § 494; U. S. v. Bornhart, Fed. Rep., March 6, 1886; People v. Galloway, 17 Wend. 540; DeBow v. People, 1 Denio 9; State v. Smith, 8 Yerger 150; Rex v. Moffatt, 2 Leach 483; Rex v. Sterling, 1 Leach 117; People v. Stearns, 21 Wend. 414.

There are two kinds of invalidity: (1) that which is apparent on the face of the instrument; and, (2) that brought about by extrinsic facts. These receipts come under the first class. "Where the writing is invalid on its face it cannot be the subject of forgery because it has no legal tendency to effect a fraud." 2 Bish. Cr. Law 538.

Under our statutory definition of forgery, code 1880, § 2827, the writing altered must be one "by which any right of property whatever shall be or purport to be transferred, conveyed, discharged, diminished, or in any manner affected, etc." These receipts do not on their face purport to be in discharge of any obligation that really existed, and no person could have been affected or injured by them.

E. H. Bristow, on the same side.

I submit that the indictment is defective in not setting out fully the purport and history of the alleged tax receipts. While we admit as a general rule that the setting out of the tenor--an exact copy of an instrument alleged to have been forged, will be sufficient, yet when the indictment undertakes to describe the purport and when the purport and history of the instrument became material, then the indictment must set it out to a "certain intent in general." It must leave nothing to be assumed, presumed or conjectured.

The mere tax receipt does not show for what fiscal year the taxes were due, does not show when the tax receipt was issued-does not show that there were any taxes due or that any assessment was ever made. A tax receipt is utterly worthless unless backed by an assessment. There are no "taxes due" unless the taxes have been assessed.

An analogous case in civil proceedings is a suit on an indemnifying bond. The plaintiff must aver the rendition of the judgment against a third party--issuance of execution thereon--its levy on plaintiff's goods--his demand for indemnity, and then the bond and a breach. In support of this, see People v. Wright, 9 Wend. 193; 3 Chitty Cr. Law 1046, 1053, 1063, 1067. These cases show that it is not enough to set out the instrument in hoec verba, but there must be averments of facts and circumstances going to show their purport, and how they can operate to the detriment of the parties whom the...