Cross v. People of State

• Decision Date: 31 January 1868
• Citation: 95 Am.Dec. 474,1868 WL 4951,47 Ill. 152
• Parties: J. BUCHANAN CROSSv.THE PEOPLE OF THE STATE OF IILLINOIS.
• Court: Illinois Supreme Court

47 Ill. 152

1868 WL 4951 (Ill.)

95 Am.Dec. 474

J. BUCHANAN CROSS

v.THE PEOPLE OF THE STATE OF IILLINOIS.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Recorder's Court of the City of Chicago; the Hon. E. VAN BUREN, Judge, presiding.

The opinion states the case.

Mr. J. P. WALKER, for the plaintiff in error.

Mr. W. K. MCALISTER and Mr. CHARLES H. REED, for the people.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

The plaintiff in error was convicted, at the June term, 1867, of the Recorder's Court of the city of Chicago, of forging a bank check, and sentenced to the penitentiary for six years.

He has brought the case here by writ of error, and alleges that the indictment is substantially and fatally defective, and no legal conviction could be founded on it.

The indictment is in the usual form, and alleges that the prisoner did, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-six, in said city of Chicago, in the county and State aforesaid, unlawfully, feloniously and falsely make, forge and counterfeit, a certain bank check for the payment of money, which said false, forged and counterfeit bank check, is in the words and figures following, to-wit: (setting out a copy of the instrument), with the intent to damage and defraud one Charles H. Beckwith, contrary to the statute, and against the peace and dignity of the same people of the State of Illinois.

This indictment describes the offence declared forgery by section 73 of the criminal code; and by section 162 of the same code, it is provided, that every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of this code, or so plainly, that the nature of the offence may be easily understood by the jury; and section 163 provides, that all exceptions which go merely to the form of an indictment, must be made before trial, and no motion in arrest of judgment or writ of error shall be sustained for any matter not affecting the real merits of the offence charged in the indictment.

The defect in this indictment is alleged by the prisoner's counsel to consist in the omission of the averment, that the check was stamped, in pursuance of the act of Congress of 1865, and that without a stamp it is void under that act, and he insists a forgery cannot be predicated of an instrument void in law.

We do not so understand, and have so decided in two cases, that the act of Congress providing for stamping, declares them void if they have no stamp, but only if the omission to stamp them was with the intent to evade the provisions of the act; and we went still further, and held it was not within the constitutional competency of Congress to declare what should, or should not, be a valid instrument in a State, or what should be evidence in the courts of justice of the States; that while admitting the power to lay a tax in the shape of a stamp duty, a failure to affix the stamp could only be visited upon the offender by subjecting him to the penalty provided by the act. Latham v. Smith, 45 Ill., 29; and Craig v. Dimock, et al., post p. 308. We do not believe Congress, by the act in question, intended to interfere with the criminal laws of any of the States, but it was for revenue purposes solely, and the party offending was made subject to a heavy penalty.

It is said by the counsel for the people, that the check had, in fact, a stamp upon it and was so proved on the trial.

With the views we entertain of the question, we should be inclined to hold, that it was an immaterial fact, and the conviction would be good without such proof, if the check was proved to be false and forged, and made with the intent charged.

The next objection made by the prisoner's counsel is, that as the check on its face purports to be drawn by an agent, the indictment should allege the fact, and the authority of the agent to draw it.

The check purports to be signed “C. H. Beckwith,” with the word “Randolph” underneath. The offence charged is forging a check with Beckwith's name to it, to defraud him, and it does not enter into the essence of the charge that another man signed it by the authority of Beckwith. It is usher'd to the public as a check signed by Beckwith; it is alleged it was false and forged and made with the intent to damage and defraud Beckwith. If the party had no authority to draw the check in Beckwith's name, he might not be injured by it; but whether he had or not, is to be established on the trial. We do not remember a case, and we have not been referred to one, where, in the indictment for forging a paper made by an agent in the name of his principal, it was held necessary to aver the authority of the agent, or to aver it was so drawn; setting out the check in hœc verba, with an allegation it was made with intent to defraud the party whose name is signed to it, is all that is necessary under our code of criminal procedure.

In the case cited, of Gutchins v. The People, 21 Ill., 642, the instrument set out in the indictment was one which could not, by the laws of this State, be valid, if genuine. This case is very different. Is it not plain that Beckwith could be damaged by this check if uttered? The word “Randolph” does not explain itself; it may be without explanation, a check word, or the name of the street in which Beckwith did business; at any rate, it requires parol evidence to explain its meaning. It appears to be Beckwith's own signature, and the averment is sufficient, that the check purported to have been drawn by him, that it was false and forged, and made to defraud the man whose signature appeared to the check.

These objections go to the motion in arrest of judgment, and as we do not deem them valid, the motion in arrest was properly overruled. The offence was stated in the terms and language of the code, and so plainly that the nature of it could be easily understood by the jury. Mohler v. The People, 24 Ill., 26; Chambers v. The People, 4 Scam., 351.

It is complained by the prisoner's counsel that the court did not grant a new trial, for the reason, first, that the case, as alleged and charged in the indictment, was left unproved in its entire scope and meaning by the evidence.

This reason is predicated upon a supposed variance between the check described in the indictment, and the one given in evidence.

The first answer to this is, that the original check was lost or destroyed, and a copy went in by consent of prisoner's counsel, and, as no objection for variance was made on the trial, it is too late to make it on error. Pearsons v. Lee, 1 Scam., 193.

The variance consisted in the omission of the figures denoting the number of the check, and of the letter “C” attached to or written under “Randolph.”

In a prosecution for counterfeiting bank notes, it has never been held necessary to set out the marks and cyphers, orna ments, devices, or mottoes on bank notes, and this court held, in the case of Quigley v. The People, 2 Scam., 301, that on the trial of an indictment for having in possession a forged bank bill, with intent to utter and pass the same, in which the bill was set out in hœc verba, but the letter “C” was omitted, and the bill introduced in evidence had this letter upon its face, it was held there was no variance.

The prisoner's counsel contends, second, that the case was left unproved in another respect. That it was not proved that Randolph had any authority to sign Beckwith's name to any check.

On this point, Randolph stated on his examination, that he was cashier for Beckwith, who was a wholesale grocer, and that he was in the habit of signing his name to the drafts of the company, and that Beckwith kept his accounts in the First National Bank. It was for the jury to decide on these facts, if the authority to draw was proved. The evidence may not go to his authority to draw drafts, but he said he was in the habit of doing so, and if permitted by Beckwith, authority would be presumed in the absence of any counter evidence.

The prisoner, by his counsel, further insists, that the forgery was left unproved, for the reason that the only witness to the fact of forgery was Mooney, and that he was a self-acknowledged and self-condemned accomplice of the real forger, whoever he was, and that, in his statement that the prisoner was the forger, he was not corroborated by one word or fact of legal testimony.

Counsel for the prisoner, under this head of objection, admits that in strict law, the jury may convict upon the uncorroborated testimony of an accomplice, but denies that in practice it is ever allowed to be done.

The doctrine may be all true, and respectable authority is vouched, that a conviction should not be had on the uncorroborated testimony of an accomplice, and that, too, in material points, but that the witness is an accomplice must be clearly shown. All the cases cited by the prisoner's counsel on this head, show that the witness was “art and part” in the commission of the crime, but we fail to discover any evidence that Mooney was particeps criminis. If his statements are to be taken as true, and we do not see why they should not be, he was the dupe of the prisoner and not an accomplice. An accomplice is defined to be one who is in some way concerned in the commission of a crime, though not as a principal, and this includes all persons who have been concerned in its commission, whether they are considered, in strict legal propriety, as principals in the first or second degree, or merely as accessories before or after the fact. 4 Bl. Com., 331; 1 Phil. Ev. 28. Another definition of an accomplice is, one of many equally concerned in a felony, the term being generally applied to those who are admitted to give evidence against their fellow criminals for the furtherance of justice which...