Leslie v. State

• Decision Date: 28 May 1902
• Parties: LESLIE v. STATE
• Court: Wyoming Supreme Court

69 P. 2

10 Wyo. 10

LESLIE v. STATE

Supreme Court of Wyoming

May 28, 1902

10 Wyo. 10 at 23.

Original Opinion of July 26, 1901, Reported at: 10 Wyo. 10.

Rehearing denied.

E. E Enterline, for plaintiff in error.

On petiton in rehearing: It is necessary that the information state or show that the instrument was either the instrument of a person or corporation. (8 Ency. Law (1st Ed.), 457, 458 460.) There was no allegation as to where the newspaper was published, or that Campbell was the business manager; and, if those facts are material, they should have been pleaded. The great weight of authority supports the contention that the instruction requested as to the failure of the defendant to testify should have been given. (Wharton's Crim. Ev Sec. 435; State v. Weems (Ia.), 65 N. W., 394; Fulcher v. State (Tex.), 13 S. W., 750; Metz v. State, 46 Neb. 547; State v. Cameron, 40 Vt. 556; Linbeck v. State (Wash.), 25 P. 452; Farrell v. People, 133 Ill. 244; State v. Landry, 85 Me. 95; Matthews v. People, 6 Colo. App., 456; People v. Flynn, 73 Cal. 513; Foxwell v. State, 63 Ind. 539; Thrawley v. State, 153 Ind. 375; Guinn v. State, 39 Tex. Cr., 257; Haynes v. State (Miss.), 27 So. 601; State v. Johnson, 50 La. Ann., 154; People v. Fitzgerald, 46 N. Y. S., 1020; Unsell v. State (Tex.), 45 S. W., 902; State v. Carnagy (Ia.), 76 N. W., 805; State v. Stevens (Ia.), 25 N. W., 777; State v. Magers, 58 P. 892; Grubb v. State (Ind.), 20 N. E., 257; Ferguson v. State (Neb.), 72 N. W., 590; State v. Evans, 58 P. 240; State v. Goff (Kan.), 61 P. 683.) Only two cases support the holding of the court in the original opinion, viz: State v. Robinson, 117 Mo. 663, and State v. Pearce, 56 Minn. 226.

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

ON PETITION FOR REHEARING.

CORN JUSTICE.

Counsel for plaintiff in error urges with great persistence that the writing in this case is not a "letter of attorney or other power to receive money" under our statute. He presents only one authority where the instrument was similar in form to the one in this case. It is a Michigan decision, holding that a paper, authorizing the bearers to solicit subscriptions for the relief fund of a labor organization, was not a "letter of attorney" or "order for money," under the Michigan statutes. (People v. Smith, 112 Mich. 192.) The difference between an authority to solicit subscriptions and an authority to collect and receive payment of money due for a specified service is so marked as to make the case practically valueless as an authority in this case. Moreover, the term employed in our statute is more comprehensive. An order for money, as explained in the Michigan decision, has a well understood meaning and usually contains a request or direction to a third party, who is indebted to the maker of the order, to pay such money to the person named. A power is an authority, whether evidenced by letter of attorney or otherwise. The word is defined in Bouvier's Law Dictionary as "technically, an authority by which one person enables another to do something for him;" and in Anderson's Law Dictionary it is defined as "the authority which one person gives another to act for him." Our statute enumerates as one of the subjects of forgery "any letter of attorney or other power to receive money," the purpose evidently being that if the writing in question was not in strictness a letter of attorney, yet if it was in substance and in fact a written authority to receive money, it should be deemed included within the penalties of the law. It is plain upon the face of the writing and without additional averments that this purports to be such an authority and is within the statute.

In support of his contention, that the information does not state an offence, counsel further presents an argument which, as we understand it, is as follows: The forged instrument must be the instrument of another, and the information must state or show that it is the instrument of another. That, in order to do this, the information must show whose instrument it is. That our statute provides that it must appear that it is either the instrument of a person, or body politic or corporate, and hence it is necessary that the information should state or show that it was either the instrument of a person or a corporation in addition to the other requirements necessary to constitute forgery. That the information does not so state or show. This is the reasoning as we understand it, and we think it is based upon some misconception of the principle relied upon.

It is true that, by all the authorities, the instrument must purport to be the instrument of another. But nothing more is meant than that if it purports to be the instrument of the defendant himself, whatever other criminal liability may be incurred by its execution, his offence is not forgery. A person cannot forge his own name or his own deed or other instrument. If, for instance, one executes an instrument, signing his own name as agent for another, although with intent to defraud, and, although he has no authority as agent, yet his offence is not forgery. This arises from the nature of the crime. True, it has been held that if there are two persons of the same name, one of them may, in some cases, commit forgery by signing his own name, as by endorsing a draft payable to a person of his name, though he knows that he is not the one intended. But this is not an exception to the rule, for it is a forgery of the name of the other person, though the names are identical, and the essence of the offence is that the writing purports to be the instrument of such other person.

But as the instrument under consideration is not signed with the name of the defendant and does not purport to be made by himself, but by another, the principle can have no possible application in this case.

As to the proposition that our statute, Section 5128, requires that it must appear to be the instrument either of a person or corporation, it is sufficient to say that the statute contains no such requirement. The language referred to occurs in defining the intent necessary to constitute the offence. The information alleges the uttering to have been with intent to defraud one Charles Swanson. This allegation is sufficient and is sustained by the evidence. But, independent of any supposed statutory requirement upon the subject, the instrument upon its face clearly purports to be the act of the Rocky Mountain News, a newspaper published in Denver. And we think it is not material and need not be averred or proved whether the business concern known as the Rocky Mountain News is owned or conducted by an individual, a partnership, a corporation or an unincorporated company. It has been repeatedly held that where the writing purports to be the instrument of a company or corporation, it is not material whether such company or corporation has any existence or not. (Com. v. Smith, 6 Serge. & Rawle 568; State v. Hayden, 15 N.H. 355; People v. Peabody, 25 Wend. 473; People v. Stearns, 21 Wend. 409; Com. v. Carey, 19 Mass. 47; State v. Van Hart, 17 N.J.L. 327.) The forgery of a deed was held to be complete, though there never was any such person as the supposed grantor in existence. (Anne Lewis case, Fost., 116, 118.)

2. The court refused to instruct the jury at the request of the defendant, that "the defendant is not required to testify and the jury have no right to presume anything against him because he has failed to testify." In the brief of counsel upon the original hearing of this case it was said that it is uniformly held by the courts of last resort, in States having similar statutory provisions, that it is error to refuse the instruction when requested by the defendant, unless covered by another instruction. And in support of this statement three cases only are cited: State v. Evans (Kans. Ap.), 9 Kan.App. 889, 58 P. 240; State v. Magers (Or.), 58 P. 892, and State v. Carnagy (Ia.), 106 Iowa 483, 76 N.W. 805. The Kansas statute provides that the failure of the defendant to testify "shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place." As only the attorney for the prosecution, and not the court, is forbidden to refer to the matter, it is perhaps a reasonable construction of the statute that the court may properly inform the jury of the law that it raises no presumption of the defendant's guilt and of their duty to give it no consideration whatever in making up their verdict. The language of our statute, however, and apparently its policy, is different, for it provides "nor shall any reference be made to, nor shall any comment be made upon such neglect or refusal." This language includes as well the court and the counsel for the defense as the attorney for the prosecution. The apparent purpose is that, in cases where the defendant does not desire to testify, the trial shall proceed, as nearly as practicable, as at common law, so far as the testimony of the defendant is concerned; that is, that he may rest upon his plea of not guilty, and the State must prove every element of the crime against him, or else he must be acquitted by force of the presumption of his innocence. And to accomplish this purpose the method selected by the Legislature was to forbid any reference to the matter whatever throughout the trial. In the Oregon case referred to nothing more is decided than that the failure of the court to instruct upon the subject was not error when the instruction had not been seasonably requested by the defendant, and the Oregon statute differs still more widely from ours. It simply provides that his waiver of...