Haslip v. State

• Decision Date: 11 November 1880
• Citation: 7 N.W. 331,10 Neb. 590
• Parties: WILLIAM HASLIP, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

7 N.W. 331

10 Neb. 590

WILLIAM HASLIP, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 11, 1880

ERROR to the district court of York county. Tried below before POST, J. Verdict against plaintiff in error, and sentence that he be confined in the penitentiary for four years.

REVERSED AND REMANDED.

France & Sedgwick, for plaintiff in error, cited 1 Bishop Crim Pro., 235. Brown v. The State, 66 Ill. 344. 1 Wharton Crim. Law, sec. 607. State v. Handy, 20 Me. 81.

C. J Dilworth, Attorney General, for the State.

OPINION

COBB, J.

A number of points are made and errors assigned by the plaintiff in error, but one of which will be considered.

The count in the indictment upon which the plaintiff in error was convicted is as follows, after the formal part: "That the said William Haslip * * * unlawfully and feloniously did utter and publish as true and genuine a certain false, forged, and counterfeited promissory note for the payment of money, which said false, forged, and counterfeited promissory note for the payment of money is of the purport, value, and effect following, to-wit:

"No. "YORK, NEB., Aug. 21, 1877.

"August 21, 1882, after date, for value received I promise to pay to the order of William Haslip five hundred (500) dollars at York, Nebr., with interest at twelve (12) per cent per annum, from date until paid, together with a sum equal to ten (10) per cent of said amount as attorney's fees if action is brought on this note or the mortgage given to secure the same, or if the same is not paid when due, interest payable semi-annually.

"Due Aug. 21, 1882.

"DAVID F.His x Mark BURTON.

"With intent thereby unlawfully to defraud," etc.

Upon the trial the district attorney offered in evidence a note, differing only on its face from the one set out in the indictment, as above copied, in this, that the note offered calls for interest payable annually, and upon the back of the note offered are the following words: "Wm. B. Haslip." "October 21st, $ 47.60." "November 10, 1.20."

To the introduction of this note the defendant below objected for the reasons--first, that it varies from the note set out in the indictment, etc. The court overruled the objection and the defendant excepted. The plaintiff in error made the overruling of his said objection and the admission of said note in evidence to the jury one of the grounds of his motion for a new trial, which was also overruled.

"In all criminal prosecutions where written instruments enter into the gist of the offense, as in forgery, uttering forged instruments, etc., they (the false instruments) should be set out in words and figures. Thus the omission of a word in an indictment for forgery is fatal." The law is thus laid down by Wharton in his work on "American Criminal Law," and is amply sustained by the numerous cases, both ancient and modern, cited by him. In some of the cases it is held that the mere mis-spelling of a word, where it does not by reason thereof come to have the sense and meaning of some other word, is not fatal, but I can find no case where it has been...