Hepburn v. Chapman

• Decision Date: 16 March 1933
• Citation: 109 Fla. 133,149 So. 196
• Parties: HEPBURN v. CHAPMAN, Superintendent of State Prison.
• Court: Florida Supreme Court

149 So. 196

109 Fla. 133

HEPBURN v. CHAPMAN, Superintendent of State Prison.

Florida Supreme Court, Division B.

March 16, 1933

On Rehearing July 6, 1933.

Petition by Norman Joseph Wise Hepburn, alias Dr. Samuel H. Johnson against L. F. Chapman, Superintendent of State Prison, for writ of habeas corpus.

Petitioner discharged.

On Rehearing.

COUNSEL Zach H. Douglas and Francis B. Bull, both of Gainesville, for petitioner.

Cary D. Landis, Atty. Gen., and Roy Campbell, Asst Atty. Gen., for respondent.

OPINION

BROWN Justice.

The petition, upon which a writ of habeas corpus was issued in this case by a justice of this court, alleged that the information under which petitioner was tried and convicted in the criminal court of record of Palm Beach county at the July term, 1932, of said court, charges no offense known to the laws of the state of Florida; that the instrument of writing set forth therein and alleged to have been forged is not a 'writing obligatory' under section 7324, Comp. Gen Laws, and that such writing is not such as is the subject of forgery under the criminal laws of this state. The certified copy of the information upon which petitioner was convicted, attached to the petition, omitting the formal caption and introductory, portions, charges that the petitioner on March 11, 1932, in Palm Beach county, Fla., 'did feloniously, unlawfully and falsely make, forge and counterfeit a certain writing on paper, to-wit:

'3/11/32

'3/6 Stipman's Arcade

'Buick Garage:

'Sir: We will take care of Dr. Samuel Johnson's bill tomorrow.

'Dr. is perfectly alright. Will send you a check anyhow tomorrow.

'Schroders & Dickoff

'By Eric Schroder

'3/11/32

with intent then and there to injure and defraud Eric Schroder and Joseph Dickoff, and other persons to the County Solicitor unknown,' etc.

The respondent in his writ states that he holds the petitioner in his custody under and by virtue of a commitment issued out of and under the seal of the criminal court of record of Palm Beach county, Fla., and attaches to the writ a copy of the judgment of conviction, and sentence to imprisonment in the state penitentiary for a period of three years.

In support of the contention that the information charges no offense known to the law of this state, counsel for petitioner cite the case of Russell v. State, 51 Fla. 124, 40 So. 625. One of the species of written instruments which is made the subject of forgery by the statute (now section 7324, Comp. Gen. Laws) is an order for money or other property. In the Russell Case, the plaintiff in error, John Russell, alias 'Humpie,' was charged by the indictment with uttering and publishing as true and presenting for payment to one J. L. Crutchfield, with the intent to injure and defraud Jim Gaddy and J. L. Crutchfield, a certain forged and counterfeited writing for the payment of money, which was in substance as follows: 'Mr. Crutch, let Humpie have three dollars for me, Jim Gaddy.' A motion to quash the indictment was made and overruled. The defendant excepted to this ruling, and sought review by writ of error. This court held that the trial court erred in denying the motion to quash, and reversed the judgment of conviction. The substance of the opinion is very well summed up in the headnotes, which read as follows:

'1. There are two kinds of orders for the payment of money of the delivery of goods which may be the subjects of forgery, viz., those which are such on their face, and those which may be shown to be such by averment and proof. If on the face of the writing there is all that belongs to an order, the law regards it as such, though in fact the drawer had no funds, and the drawee was under no obligation to respond. The question whether or not particular words bring a case within this branch of the definition may be nice and delicate. The tests are that looking simply at the writing there must appear on its face to be a drawer having a disposing power over the fund or goods, a person under obligation to obey, and one to whom delivery or payment is to be made, sufficiently described to exclude uncertainties of meaning. If the latter is not mentioned by name in the writing, or is imperfectly described, these uncertainties may be made certain by averment and proof.

'2. Where a party is charged with forging or uttering an alleged forged writing which is in these words, viz., 'Mr. Crutch, let Humpie have three dollars for me,' the indictment should by proper averments explain who was meant by 'Mr. Crutch,' as well as who was meant by 'Humpie,' and these explanations should be followed up by proof at the trial.'

Counsel for petitioner also cite 2 Wharton's Criminal Law, 1247, § 948, where it is said:

'Where an instrument is incomplete on its fact, so that as it stands it cannot be the basis of any legal liability, then, to make it the technical subject of forgery the indictment must aver such facts as will invest the instrument with legal force. Thus, where an indictment charged that A did feloniously and fraudulently forge a certain writing, as follows: 'Mr. Bostwick, charge A's account to us, B and C,' with intent to defraud B and C, it was held that the indictment was not valid without charging that A was indebted to Bostwick, as there could be no fraud unless a debt existed.'

Counsel also cite to like effect Rice, Criminal Evidence, vol. 3, 772, 773; also Johnson v. State, 47 Fla. 37, 36 So. 166, and West v. State, 45 Fla. 118, 33 So. 854; Barker v. State, 78 Fla. 477, 83 So. 287. In the lastnamed case the order for the payment of money as set out in the indictment was held sufficient. None of these cases deal with a 'writing obligatory,' such as the one here involved, in the nature of a promise or agreement to answer for the debt, default, or miscarriage of another.

Counsel for petitioner contend that the written instrument in the case at bar is only addressed to 'Buick Garage,' and that this is not a definite designation of any natural person, association, or corporation anywhere within the state of Florida; also that the instrument set forth in the information refers to Dr. Samuel Johnson, whereas the defendant is charged under the alias of Dr. Samuel H. Johnson, which variance is not explained by any allegation in the information. They further insist that the writing set forth in the information is of no binding force or efficacy for any purpose, and could impose no liability upon or injury to any one, even had it been genuine, and hence could not be the subject of forgery. In this connection counsel cite the case of State v. Humphreys, 10 Humph. (29 Tenn.) 443, where the instrument alleged to have been forged was as follows:

'Mr. J. G. Bostick:

'You will please to charge Mr. J. S. Humphreys' account to us, up to this date. February 7, 1849.

[Signed] 'Twyman & Tannehill.'

And the Tennessee court held that the instrument 'could not be of any benefit to befendant or prejudice to the other parties, unless the defendant were indebted at the time to Bostick; and it could have no other effect, if genuine, but to discharge that indebtedness. This is an important and material ingredient in the description of the offence charged, and because there is no averment in the indictment of such indebtedness, we think it does not sufficiently charge the offence.'

Perhaps the objections here raised to the sufficiency of the information might have been good as grounds for a motion to quash, but that does not mean that they are good grounds for holding the information, and the judgment of conviction based thereon, null and void in habeas corpus proceedings. 'Where an indictment, information or complaint, though inartificially drawn, shows an evident attempt to state the essential facts which constitute the crime sought to be charged, a defect in the statement will not warrant the discharge of the defendant on habeas corpus. To hold otherwise would be not only to adapt the writ to the ordinary uses of a proceeding in error, but to warrant, by its means, intolerable interference with the ordinary and regular process of criminal prosecutions, and to substitute the writ for a demurrer or motion to quash, which the law will not permit. The inquiry in such case is not whether there is in the indictment such specific allegation of the details of the charge as would make it good on demurrer, but whether the indictment describes a class of offenses of which the court has jurisdiction, and alleges the defendant to be guilty. If, however, an indictment, information or complaint is void, a trial thereon is also void and the prisoner is entitled to be discharged on habeas corpus. Thus it has been held that, when the facts charged or attempted to be charged do not constitute any public offense, the defendant will be discharged, as this goes to the jurisdiction of the court.' 12 R. C. L. 1202, 1203. See, also, 12 R. C. L. 1242, where it is said: 'So also it is well settled that mere errors or irregularities in warrants, indictments, information, or complaints are not reviewable on habeas corpus, and that whether the offense is sufficiently alleged is not a proper subject matter for inquiry on the hearing on such writ. Such a question is necessarily one of law which must be decided by the court in which the case originates, and is therefore clearly within its jurisdiction. Neither will the sufficiency of an indictment, as a matter of technical pleading, be inquired into on habeas corpus. But it has been held that the court will examine an indictment for the purpose of determining whether it charges any offense known to law.'

Our own decisions are much to the same effect. Thus in Ex parte Prince, 27 Fla. 196, 9 So. 659, 26 Am. St. Rep. 67, this court held that...