Gibson v. State

• Decision Date: 06 February 1888
• Citation: 79 Ga. 344,5 S.E. 76
• Parties: Gibson v. State.
• Court: Georgia Supreme Court

5 S.E. 76

(79 Ga. 344)

Gibson

v.State.

Supreme Court of Georgia.

February 6, 1888.

1. Forgery—Intent—Indictment—Demurrer.

Where an indictment contained two counts, the first of which properly charged defendant with forging an order for money, and the second with fraudulently and falsely uttering the same, without alleging any intent to defraud, or that it was uttered as true, while the latter count is insufficient in law, a demurrer to the entire indictment, not specially setting forth any objection to the second count, was rightly overruled.

2. Same—Intent—Motion in Arrest.

When a verdict is rendered finding a defendant guilty upon a count in an indictment alleging a forged order for money, there being no allegation in the count of an intent to defraud, or that the order was uttered as true, defendant's proper remedy is a motion in arrest of judgment.

3. Same—Order for Monet—Indictment.

A writing in these words: "January 11, 1886. Mr. Price: Please let Tom Mason have five dollars ($5.00) for Thomas Parker, Macon, Ga., "—is an order for money, and an indictment for forging or uttering such an order should be based on section 4442, and not section 4450, of the Code.

(Syllabus by the Court.)

Error from superior court, Bibb county; Simmons, Judge.

C. Howland, for plaintiff in error. J. L. Hardeman, Sol. Gen., for defendant in error.

Lumpkin, J.¹ 1. Clinton Gibson was indicted in Bibb superior court upon an indictment containing two counts, The first charged that he did "fraudulently make, forge, and sign an order for money, to-wit: 'January 11, 1886. Mr. Price: Please let Tom Mason have five dollars ($5.00) for Thomas Parker, Macon, Ga., '—the same being done with intent to defraud W. F. Price, said order being neither made nor authorized by said Thomas Parker." The second charged that he did "fraudulently and falsely utter and pass and demand and receive payment on a false and fraudulent order on W. F. Price, (here the above order is again set forth,) he knowing the same to be false and fraudulent and forged." The defendant demurred, in writing, to the entire indictment, on various grounds, but none of them referred specially to the second count, nor did any of them allege as objections to its sufficiency that it failed to charge an intent by the defendant to defraud, or that he uttered the forged paper as true. If these objections had been made, they should have been sustained; but as the first count contained a valid and sufficient charge of forgery, the court did right in overruling the demurrer as made.

2. After the trial began, the state abandoned the first count, and relied entirely upon the charge contained in the second, and upon this count the defendant was found guilty. We are of the opinion that this verdict ought notto stand, and that defendant's proper remedy would have been a motion in arrest of judgment, which, however, he did not make. In the case of Couch v. State, 28 Ga. 367, this court held that to complete the offense of uttering a forged paper it must be published as true, and with intent to injure somebody. The indictment is not set forth in the report of that case, but the presumption is that it charged the publication as true, and the intent to defraud, because the court stated, in the opinion, that if the jury had found the prisoner guilty generally, the verdict would have been good. The point arose there upon the verdict itself, which found defendant "guilty of publishing and passing the receipt in question, knowing it to be a forgery." This verdict was held to be a mere nullity upon which no judgment could be founded, because it failed to find that the defendant passed the paper as true, and with intent to defraud. If such a verdict was a nullity, it follows that an indictment wanting in these essential allegations is also a nullity, on which no conviction can be legally sustained, and that the proper way to set aside a verdict of guilty thereon would be a motion to arrest the judgment. The ruling in Couch's Case is affirmed in the case of Stephens v. Stale, 56 Ga. 604, in which the defendant in one count of the indictment was charged with having falsely and fraudulently passed and uttered as true a forged order for good,...