Harrell v. State
| Citation | 83 So. 922,79 Fla. 220 |
| Parties | HARRELL v. STATE. |
| Decision Date | 04 March 1920 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Jackson County; C. L. Wilson, Judge.
Hamilton Harrell, alias Frank E. Harper, was convicted of uttering forged bills of exchange, and he brings error. Affirmed.
Syllabus by the Court
An indictment for uttering a forged check or draft, which charges that the defendant did utter and publish as true a certain 'false, forged, and counterfeited and altered' bill of exchange, does not charge two offenses under section 3360 of the General Statutes of Florida 1906 which provides for the punishment of any one who 'utters and publishes, as true, a false, forged or altered record deed, instrument or other writing,' etc.
An indictment charging one with the offense of uttering a forged instrument need not recite in detail the particular features of the instrument that render it false.
The words 'false, forged, and counterfeited and altered,' as used in an indictment charging one with uttering a forged instrument, are not repugnant nor inconsistent as a description of the false instrument.
An indictment charging one with the commission of a statutory offense may use the words of the statute without a particular statement of the facts and circumstances constituting the offense, when by using the words of the statute the act in which the offense consists is fully, directly, and expressly alleged, without uncertainty.
The offense of forgery consists of a writing in such form as to be apparently of some legal efficiency, and evil intent of the sort deemed in law fraudulent in the mind of the accused and a false making of such writing.
In uttering a forged instrument the offense consists in the knowledge on the part of the accused that the instrument is false and an intent to injure or defraud another by asserting that the instrument is true.
Where one deposits a forged instrument in the mail, directed to a person in another county where the instrument is received, the offense, if one is committed, is in the county where the instrument was received.
COUNSEL John H. Carter, of Marianna, and H. L. Grace, of Panama City, for plaintiff in error.
Van C. Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.
Hamilton Harrell, alias Frank E. Harper, was indicted in the circuit court for Jackson county for uttering two forged bills of exchange. There were two counts in the indictment; one described the alleged false instrument to be a bill of exchange and order for money in the sum of $537.74. The second count described the instrument to be an order for money in the sum of $314.59.
There was a general verdict of guilty, and to the judgment entered the defendant took a writ of error.
Before the defendant was put upon trial he moved to quash the indictment upon three grounds:
This motion was overruled, and such ruling is the basis of the first assignment of error.
The first count of the indictment, omitting certain formal parts, is as follows:
'One Hamilton Harrell, alias Frank E. Harper, at and in the county of Jackson, state of Florida, on the 27th day of May, A. D. 1918, then and there being, did then and there utter and publish as true a certain false, forged, and counterfeited and altered bill of exchange and order for money to and upon the First National Bank of Marianna, a corporation, which said false, forged, counterfeited, and altered bill of exchange and order for money was of the following tenor, to wit:
'Indorsed: 'Frank E. Harper.'
'He, the said Hamilton Harrell, alias Frank E. Harper, then and there knowing that the said bill of exchange and order for money to be false, forged, counterfeited, and altered, with the intent then and there to injure and defraud said the First National Bank of Marianna, a corporation.'
The second count charges the offense in the same language, but the paper alleged to be a forgery is designated as an order for money, and was alleged to be for the sum of $314.59. Each purported to be a draft of L. F. Driver & Co. upon the Moultrie Banking Company, and that the defendant uttered and published it as true to and upon the First National Bank of Marianna.
The able counsel for the defendant contends that the indictment is fatally defective, in that it 'does not set out the instrument that was forged, but sets out the instrument as uttered after it was forged.' This is not clear. The defendant is charged with uttering a false, forged, counterfeited, and altered bill of exchange. That is to say he tried to 'pass,' get money or goods upon a paper that he knew was a forgery. Whether it had any existence before he got possession of it or whether it was the work of his own hands is immaterial. The instrument as presented was false, forged, counterfeited, and he was charged with the uttering, not with the forgery. Counsel assumes that there was once in existence a valid document which was altered and came to the possession of the defendant who uttered it. Even so, the document as altered, if materially altered, became the forged, false, counterfeited instrument, and if the defendant knew at the time he offered the instrument to the bank that it had been materially altered, but endeavored nevertheless to obtain money upon it, he was guilty of uttering a forged writing, because a 'forged instrument' is a false instrument; a valid writing that has been materially altered is not the same document, and if has been so altered with intent to defraud it is a forgery, if the writing is of such character that, if genuine, it might apparently be of legal efficacy or the foundation of a legal liability. See 12 R. C. L. 139.
An indictment charging one with the offense of uttering a forged instrument need not recite in detail the particular features of the instrument that render it false. It need not allege that a genuine check signed by A. and made payable to B. was taken by the defendant and altered by him or another by erasing B.'s name and substituting the defendant's. The means adopted to produce the instrument are utterly immaterial in a charge of uttering a forged instrument. The offense consists in trying to defraud another by the use of a writing which the culprit knows to be a forgery, however created, whether by falsely making or altering it. Either method constitutes a forgery when adopted to perpetrate a fraud. See 12 R. C. L. p. 146. So knowing the instrument to be a forgery, he utters it with intent to defraud. In what possible way are his rights invaded if when charged with the fact he is not also advised of the means adopted to produce the false instrument? Could he plead that he did not know the particular means adopted constituted forgery?
Counsel also contend that the language of the indictment describing the instrument as a 'false, forged, counterfeited, and altered order for money' embarassed the defendant, deprived him of a fair trial, and put him at a great disadvantage, because the words are repugnant and inconsistent; for if the instrument was 'forged' it was not a 'counterfeited instrument,' or if it was the latter then it was not 'altered,' and from the language used the defendant was not definitely advised whether the falsity of the instrument consisted in its being an entire creation, or whether it was an imitation of a genuine order, or whether it consisted of a false material alteration of a genuine paper writing. Counsel insist that as the words 'false,' 'forged,' 'counterfeit,' and 'altered,' are repugnant, they cannot be coupled by the conjunction 'and.' In the case of King v. State, 43 Fla. 211, 31 So. 254, where the plaintiff in error had been convicted of forgery, the indictment charged that the defendant 'did falsely make, forge, and counterfeit a certain false, forged, and counterfeit writing,' the court held, upon a motion to quash the indictment, that the quoted language meant that the defendant falsely made and forged the instrument as his own creation, and that when so made by him it was a 'false, forged, and counterfeit writing.' Although the point was not directly presented that the terms used were repugnant, the court seemed to approve their use in the manner quoted. To the court, a writing which was 'false, forged, and counterfeit' was merely a writing falsely made to defraud. There seemed to be no difficulty on the part of the court in the matter of ascertaining the meaning of the language of the indictment, which is in the form approved by the authorities. See 8 Stand. Ency. of Proc. 1147; State v. Fisher, 65 Mo. 437; 2 Bishop's Crim. Proc. (3d Ed.) 167; 8 Ency. of Forms, 710; 9 Ency. of Pl. & Pr. 555.
A charge in an indictment may be made in the words of the statute, without a particular statement of facts and circumstances, when by using those words the act in which the offense consists is fully, directly, and expressly alleged without any uncertainty or ambiguity. This rule is particularly applicable to the charge of forgery where it is not necessary to set out in what particular act the forgery consisted, inasmuch as the word 'forge,' or 'forged,' includes in and of itself a statement of the particular acts which constitute...
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