Ex parte Solway
| Citation | 265 P. 21,82 Mont. 89 |
| Decision Date | 15 March 1928 |
| Docket Number | 6298. |
| Parties | Ex parte SOLWAY. |
| Court | United States State Supreme Court of Montana |
Original application for a writ of habeas corpus by Thomas Davis on behalf of George Solway, a prisoner, directed to the warden of the prison. Writ quashed and prisoner remanded to custody.
L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for respondent.
The question of the legality of the confinement of George Solway in the state prison at Deer Lodge is submitted for our determination on writ of habeas corpus issued out of this court, directed to the warden of the prison, and his motion to quash the writ.
The application for the writ shows that Solway was informed against on January 6, 1927, for "forgery" alleged in the information to have been committed as follows:
"That at the county of Big Horn, state of Montana, on or about the 29th day of December, A. D. 1926, * * * the said defendant did * * * willfully, wrongfully, unlawfully falsely, and feloniously, and with the intent to defraud, forge the name of L. H. Hamilton to a certain check, * * * signed L. H. Hamilton as maker and payable to George Solway, and did publish, utter and pass said check and did obtain on said forged check moneys and credit from one Sam Poullos. * * * "
It is further shown that Solway entered a plea of guilty and thereon was sentenced to a term of not less than one nor more than two years in the state prison, but the sentence was suspended and the defendant paroled in charge of the state board of prison commissioners, effective March 12, 1927, and that in January, 1928, on complaint made and on a hearing had, the parole was revoked and Solway committed to the state prison.
Petitioner asserts that Solway is illegally restrained of his liberty, as the information does not state facts sufficient to charge the crime of forgery or any public offense, and therefore the judgment rendered thereon is void. He points out three particulars in which he contends the information is fatally defective: (1) That there is no allegation therein that the check was indorsed by Solway, and without the indorsement it could not have been passed as alleged; (2) that it is alleged that the check was "signed by L. H. Hamilton as maker," and was therefore not a forged check, although it also bore a forged signature; and (3) that it is alleged that the check was "payable to George Solway" and not the order of George Solway, and was therefore not negotiable and could not be used for the purpose of defrauding Poullos.
In support of his contentions, counsel for Solway cites a number of cases in which informations or indictments were held insufficient on demurrer or on appeal; but these decisions are not controlling here, for the following reasons:
1. Proceedings on writ of habeas corpus are authorized for the purpose of testing the validity of commitments, in cases such as this, and are collateral attacks upon the judgments upon which the commitments are issued; they lie, therefore, only when the judgment attacked is absolutely void for the reason that the court rendering it was without jurisdiction to do so. In re Lockhart, 72 Mont. 136, 232 P. 183; State ex rel. Boone v. Tullock, 72 Mont. 482, 234 P. 277; 29 C.J. 30. The writ is not supervisory in character and does not perform the function of an appeal (In re Lockhart above; 29 C.J. 25), nor is it available as a substitute for a demurrer to the information (Ex parte Stacey, 45 Or. 85, 75 P. 1060; Ex parte Prince, 27 Fla. 196, 9 So. 659, 26 Am. St. Rep. 67).
2. An information may therefore be sufficient to support a judgment collaterally attacked in such a proceeding as this, even though it would have been held insufficient on demurrer, motion in arrest of judgment, or on appeal. Ex parte Bunkers, 1 Cal.App. 61, 81 P. 748; In re Myrtle, 2 Cal. App. 383, 84 P. 335; Ex parte Avdalas, 10 Cal.App. 507, 102 P. 674. In Ex parte Kowalsky, 73 Cal. 120, 14 P. 399, it is said that:
"If enough appears in such defective indictment to show that an offense has been committed, of which the court has jurisdiction, the party charged cannot be discharged under a writ of habeas corpus."
3. However, in order for a judgment to be proof against an attack by habeas corpus, the court which rendered it must have had jurisdiction of the person of the defendant and of the subject-matter, and, in addition thereto, must have had jurisdiction to render the particular judgment which it did pronounce, and the absence of either of these factors renders the judgment subject to collateral attack (In re Mettler, 50 Mont. 299, 146 P. 747); therefore, in such a proceeding as this, the information may be examined for the purpose of determining whether, upon any admissible theory, it states a public offense (In re Farrell, 36 Mont. 254, 92 P. 785); in doing so the court will resolve every intendment in favor of sufficiency and will not discharge the prisoner if the information does not fail entirely to charge a public offense (In re Lockhart, above).
It is apparent from the record that the court had jurisdiction of the person of the prisoner and of the subject-matter of the charge, and the sole remaining question for determination is as to whether the information states the crime of forgery with sufficient particularity, under the above rules, to vest the trial court with jurisdiction to pronounce sentence upon the accused.
4. Section 11355, Revised Codes of 1921, declares that:
"Every person who, with intent to defraud another, falsely makes alters, forges, or counterfeits * * * any check * * * or utters, publishes, or passes or attempts to pass as true and genuine any of the above-named false, altered, forged, or counterfeited matters * * * with intent to * * * damage, or defraud any person, * * * is guilty of forgery."
To the two statutory elements of forgery connected with the making of such an instrument, viz., a false writing and the intent to defraud, has been added by judicial construction a third necessary element, to wit, that the instrument, if genuine, would have validity (In re Farrell, above; State v. Evans, 15 Mont. 539, 39 P. 850, 28 L. R. A. 127, 48 Am. St. Rep. 701); or, as stated in 2 Wharton on Criminal Law (11th Ed.) 1109, the forged instrument must be of such a nature that, if genuine, it would expose a particular person to legal process, apparent legal efficiency for this purpose being sufficient. This addition is in conformity with the rules announced generally by the authorities. 2 Bishop's Criminal Law, 533; 26 C.J. 897.
5. In support of his contention that the information does not charge forgery in the absence of an allegation that the check was indorsed, counsel for Solway cites the cases of People v. Cole, 130 Cal. 13, 62 P. 274, and People v. Thornburgh, 4 Cal. App. 38, 87 P. 234, but in each of those cases the check in question was made by the defendant to himself and the forgery, if forgery was committed, consisted in indorsing thereon the name of another; the allegation of such indorsement being omitted, of...
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