Leslie v. State

• Decision Date: 26 July 1901
• Parties: LESLIE v. STATE
• Court: Wyoming Supreme Court

65 P. 849

10 Wyo. 10

LESLIE v. STATE

Supreme Court of Wyoming

July 26, 1901

On Petition for Rehearing, May 28, 1902.

Rehearing Denied 10 Wyo. 10 at 23.

ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.

J. H Leslie was convicted of forgery, and sentenced to three years in the penitentiary. A motion in arrest of judgment was overruled and the defendant prosecuted error. The facts are fully stated in the opinions.

Affirmed.

E. E Enterline, for plaintiff in error.

The facts stated in the information do not constitute an offence punishable by the laws of Wyoming. The instrument could not be considered the instrument of or one executed by the Rocky Mountain News. It did not have the capacity to injure or defraud. Where an instrument does not show on its face that one can be defrauded thereby extrinsic facts must be averred to show fraudulent tendency. (R. S., 5128, 5135; State v. Wheeler, 19 Minn. 98; People v. Smith, 112 Mich. 192; 8 Ency. Law (1st Ed.), 494, 497, 523, and cases cited; 9 Ency. Pl. & Pr., 550, 559-567, and cases cited; Reed v. State, 28 Ind. 396; State v. Evans, 15 Mont. 539; Crawford v. State (Tex.), 50 S. W., 378; People v. Terrill (Cal.), 59 P. 836; Com. v. Hinds, 101 Mass. 209; Hutton v. State (Tex.), 38 S. W., 209.) Guilty knowledge must exist at time of publishing a forged instrument. (3 Greenleaf Ev., Sec. 111.) The same must be uttered as true and genuine. (R. S., 5128.) It was error to refuse the instruction requested that the jury should presume nothing against the defendant from his neglect to testify. (State v. Evans (Kan.), 58 P. 240; State v. Magers, (Or.), 58 P. 892; State v. Carnagy (Ia.), 76 N. W., 805.)

J. A. Van Orsdel, Attorney General, and Taliaferro & Watts, for the State.

The instrument speaks for itself, and no extrinsic facts were necessary to be shown to determine its nature and character. It is a power to receive money under the statute. (R. S., 5128.) It was not necessary for the State to allege or prove that the Rocky Mountain News was an existing corporation, or whether C. R. Campbell was a real or fictitious person, since it was proven that the instrument was false and so known to defendant when he uttered it as true and genuine. (2 Bishop's New Cr. Pro., Sec. 454; 9 Ency. Pl. & Pr., 589; Jackson v. Com. (Ky.), 34 S. W., 14; Santolini v. State, 6 Wyo., 110.) It was not error to refuse the instruction based on the defendant's failure to testify. Our statute is to be distinguished from most others, in that it provides that no reference shall be made to such failure. (Sec. 5346; State v. Pearce, 56 Minn. 226; State v. Robinson, 117 Mo. 663.) It is sufficient that the instrument charged to have been forged appears to be good and effectual if valid, though the circumstances which would render it effectual do not appear. The instrument was clearly the subject of forgery. (Allgood v. State, 87 Ga. 668; Wilcoxson v. State, 60 Ga. 184; Henderson v. State, 14 Tex. 503; Smith v. State, 29 Fla. 408; People v. Bibly, 91 Cal. 470; Kennedy v. State, 33 Tex. 183; State v. Bauman, 52 Ia. 68; Hendricks v. State, 26 Tex. App., 179; Dovaline v. State, 14 id., 324.) It is utterly immaterial whose name was signed as business manager, or whether the name as signed varied from the true name of the business manager of the newspaper in question. The existence of the person whose name is forged is immaterial. (U. S. v. Turnet, 7 Pet., 132; U. S. v. Brewster, id., 164; State v. Price, 8 Ia., 231; Com. v. Russell, 156 Mass. 196; State v. Flye, 26 Me. 312; Snow v. State, 14 Wis. 479.)

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

OPINION

KNIGHT, JUSTICE.

Appellant was convicted of forgery and given three years in the penitentiary under a statutory provision of Wyoming particularly intended, it would seem, to cover a multitude of sins, which is as follows:

"Sec. 5128. Every person who shall falsely make, alter, forge or counterfeit any record or other authentic matter of a public nature, or any charter, letters-patent, deed, lease, indenture, writing obligatory, will, testament, codicil, annuity, bond, covenant, United States treasury note or United States bond, bank bill or note, post note, check or draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for property or money, power of attorney, any auditor's warrant for the payment of money at the treasury, county order or any accountable receipt, or any order or warrant or request for the payment of money or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing or acquittance, release or receipt for money or goods, or any acquittance, release or discharge for any debt, account, action, suit, demand, or other thing, real or personal, or any transfer or assurance of money, moneys, stock, goods, chattels or other property whatever, or any letter of attorney or other power to receive money, or to receive or transfer stock or annuities, or to let, lease, dispose of, alien or convey any goods or chattels, lands or tenements or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft or order, or assignment of any bond, writing obligatory, promissory note for money or other property, or shall counterfeit or forge the seal or handwriting of another, with intent to damage or defraud any person or persons, body politic or corporate, whether the said person or persons, body politic or corporate reside in or belong to this State or not; or shall utter, publish, pass or attempt to pass as true and genuine, or cause to be uttered, published, passed, or attempted to be passed, as true and genuine, any of the above named false, altered, forged or counterfeited matters as above specified and described (knowing the same to be false, altered, forged or counterfeited), with intent to prejudice, damage or defraud any person or persons, body politic or corporate, whether the said person or persons, body politic or corporate, reside in this State or not, shall be deemed guilty of forgery, and upon conviction thereof shall be punished by confinement in the penitentiary for a term not more than fourteen years."

The evidence in this case shows that the plaintiff in error on March 31st, 1900, appeared at the place of business of one Charles Swanson in the city of Rock Springs, Sweet-water county, Wyoming, and continues as follows:

"I was home to dinner when I come back from dinner this gentleman over there come in and asked me if I was Mr. Swanson I says 'yes,' and he told me that he was writing up the town and taking up subscriptions for the Denver News and he didn't have the list of subscribers; he said he left them up in the hotel, but he showed me a couple of them, blue receipts, and he said also that the price is a little cheaper now, he said reduced rates. So I told him I got the paper. I was paid up a short time ago, but he told me if I renew the subscription it would be a little cheaper. And he told me that he had changed territory with Caldwell. Caldwell is the man that travels through Wyoming and collects for the Denver News, and he told me he got Nebraska, and Leslie told me he got Wyoming, and he told me that Mr. Campbell, the business manager of the News, was an uncle of his. He shows me a paper that he was authorized to collect for the Denver News. So I told him to come around a little later, I was short of small change. I telegraphed to the Denver News to find out if he was authorized to collect. I got an answer, 'We have no such agent in Wyoming; Mr. Leslie is a fraud.'"

Then follows evidence of the arrest, and he continues: "We went up to the city hall. Mr. Morton (the officer who had made the arrest) asked him by what authority he go around and collect for the Denver News, so he pulls out the same paper he showed me and shows Morton, with the business manager's signature in Denver." Witness identified paper (Ex. "A").

A. G. Morton testified that he was a deputy sheriff, and gave the following evidence: "Went up to the room, knocked at the door. Told him who I was, that I had a warrant for him and asked him to come outside. He said he would as soon as he was dressed. It was just about the head of the stairs. I sat down on the stairway to wait for him. I looked up in a couple of minutes. I sat there about that long. I see a gentleman standing at the head of the stairs. I asked him if he was Mr. Leslie; he said 'No.' He asked me if I wished to see him. I said 'yes.' He said he would call him. He went in I heard a window go open I went to the door and told him to come out, he came out. I took him over to the city hall. I asked him what authority he had to represent the Rocky Mountain News. He showed me the letter of authority there (Ex. "A"). He took that paper out of his pocket handed it to me says 'That is my authority' I asked him who gave him that authority. He says 'Mr. Campbell gave it to me.'"

Q. Did he say what business Mr. Campbell's was.

A. I asked him he says he was business manager of the Rocky Mountain News.

R. C. Campbell testified as follows: That he was business manager of the Rocky Mountain News at the time and also on March 31st, 1900; that he had never seen J. H. Leslie (dft. below) before that he was aware of; that the Rocky Mountain News was published in Denver. He was shown the letter identified by former witnesses (Exhibit A), testified that the signature was not his; that he never gave the letter to J. H. Leslie; that he did not know whose signature it was; that the instrument was not true and genuine, and that defendant was no relation of his that he was aware of.

During the examination of this witness and at about this point the...