France v. State

• Court: Mississippi Supreme Court
• Writing for the Court: WHITFIELD, C. J.
• Citation: France v. State, 83 Miss. 281, 35 So. 313 (Miss. 1903)
• Decision Date: 30 November 1903
• Parties: LOUIS FRANCE v. STATE OF MISSISSIPPI

35 So. 313

83 Miss. 281

LOUIS FRANCE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 30, 1903

FROM the circuit court of Claiborne county. HON. GEORGE ANDERSON Judge.

France appellant, was indicted, tried and convicted of forgery, and appealed to the supreme court.

The indictment, leaving off the formal parts, is as follows "That Louis France, late of the county aforesaid, on the 14th day of January, 1903, with force and arms, at the county aforesaid, did then and there wittingly, falsely and feloniously make and forge the name of one J. M. Flowers to a certain writing on paper purporting to be an order or recommendation to A. A. Tichte, doing business in Port Gibson, said state, of the tenor following: 'Port Gibson Miss. August 7, 1902, Mr. A.A. Tichte. Dear Sir: Louis France comes to me for a note to you, he, are living on my place and worked a tract this year and he don't owe me any thing and he is alright and he has a good crop you can depend on him. J. M. Flowers'--with intent to defraud and injure the said Tichte, and against the peace and dignity of the state of Mississippi." A demurrer was interposed to this indictment on the grounds that it does not charge any offense; does not show an instrument, such as is embraced in the description of those which may constitute forgery; does not give with certainty the name and description of the thing alleged to be forged. The demurrer was overruled.

Reversed and remanded.

J. McC. Martin, for appellant.

Appellant did not write the letter in his own name, under the pretense that it is the act of another who bears the same name as himself. Appellant did not seek by the writing to create any pecuniary obligation, because, on its face, the document is nothing but a letter stating that Lewis came to the writer, J. M. Flowers, for a note to A. A. Titche; that Lewis lives on Flowers' place and worked there; that he does not owe Flowers anything; that he is all right, has a good crop, and that Titche can depend on him. How does this create any pecuniary obligation? Appellant did not seek by the writing to increase, discharge, defeat or diminish any pecuniary obligation, right or interest, or to transfer or affect any property whatever.

The indictment does not fall under any of the sections of the code.

Indictments for forgery at common law were limited; forgery at common law is a misdemeanor. Hence, the indictment under consideration cannot fall within the common law, because it charges a felony, and the punishment inflicted by the court is for felony, and not a misdemeanor.

"It is an indispensable element in the crime of forgery, that the forged paper be such that if genuine it may injure some person." State v. Biggs, 34 Vt. 501.

"A mere request from one person to let another have goods, without further request that they will be charged to some particular person, does not, on its face, impose an obligation; and it is not the subject of forgery unless extrinsic facts are adduced to show that it would in fact create an obligation." Crawford v. State, 50 S.W. 378.

"A paper affirming that certain persons are solvent and able to pay a note to which their names appear as makers, it being merely a written expression of opinion, is held not to be the subject of forgery, in case of State v. Givens, 5 Ala. 747." So "a false letter purporting to have been written by another person with intent to inufluence the collector of customs to reject an application of a Chinese subject to be permitted to land" in case of People v. Wong Sam, 117 Cal. 29, is held not to be subject of forgery.

Again, "To constitute the offense there must also be a capacity to injure; it is not an indictable offense to utter paper which could in no case be the subject of suit." State v. Anderson, 30 La. Ann., 557; Anderson v. State, 20 Tex. App., 598.

The paper, then, on which the indictment herein is based, and the evidence offered by the state, all fail to show a case of forgery. If the paper had in fact been a genuine one, how could it have operated to injure Titche? At best it was but an expression of opinion, or an indirect recommendation.

J. N. Flowers, assistant attorney general, for appellee.

If the indictment is good either at common law or under the statute it stands, even though it was meant to draw it on a statute. Bishop on Statutory Crimes (3d ed.), sec. 164.

If the indictment in the case at bar is good without reference to any statute defining forgery, then the appellant was properly sentenced as for a felony, although the crime he was convicted of is a misdemeanor at the common law. Section 1119 of the code fixes the penalty for every forgery, and this includes the common law as well as out statutory forgeries.

It is well settled that an instrument falsely made need not actually do any harm nor be capable of inevitably doing harm. It is sufficient if it is an instrument capable of doing harm. In Fondville v. State, 17 Tex. App., it was said that a writing which tends to create or defeat an obligation may be forgery.

It is plain at a glance that the note charged to have been forged would have been, if true, capable of creating or affecting legal obligations. It not only purports to recommend Louis France to Mr. Titche as being "all right" and worthy of confidence, but also advises him that Louis is working on his place "this year, and he don't owe me anything, and has a good crop." Under our laws the landlord has a lien on the crop of his tenant for everything furnished by way of supplies. This note, if true, would have operated as a waiver of this lien in favor of Mr. Titche, and if Mr. Titche had become Louis' creditor, and had tried to enforce a lien on his crop, Mr. Flowers could not have asserted his landlord's lien for advancements made prior to the date of...