Lewis v. State

• Decision Date: 13 June 1927
• Docket Number: Criminal 639
• Citation: 32 Ariz. 182,256 P. 1048
• Parties: P. K. LEWIS, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

256 P. 1048

32 Ariz. 182

P. K. LEWIS, Appellant, v. STATE, Respondent

Criminal No. 639

Supreme Court of Arizona

June 13, 1927

APPEAL from a judgment of the Superior Court of the County of Pima. Gerald Jones, Judge. Affirmed.

Messrs Struckmeyer, Jennings & Strouss, and Mr. George Darnell, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Earl Anderson and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.

OPINION

LOCKWOOD, J.

An information was filed against P. K. Lewis under the provisions of section 108, Penal Code of 1913, which reads as follows:

"108. Every person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office, within this state which instrument, if genuine, might be filed or registered, or recorded under any law of this state or of the United States, is guilty of felony."

The nature of the instrument as set forth in the information was ". . . an application for a loan of money from those certain permanent funds of the state of Arizona, created by and referred to in that certain statute of the state of Arizona known as chapter 5 of the Second Special Session, Laws of Arizona for the year 1915, and acts amendatory thereof, together with the three affidavits which by the provisions of chapter 95 of the Session Laws Arizona for the year 1919 are prescribed to accompany said application, . . ." which documents were alleged to have been filed in the office of the state treasurer. This application was for a loan from the state of Arizona to K. G. Freeland and Ruth L. Freeland, his wife, in the amount of $5,000, and ostensibly signed by them, and to it were attached affidavits purporting to have been subscribed and sworn to by W. M. Ellis, H. C. Miller and T. F. Fagan. It was the state's contention that Ruth Freeland's signature to the application had been forged, and that Ellis and Miller had neither signed nor sworn to the affidavits. The case was tried before a jury, which returned a verdict of guilty, and defendant, after the usual motion for new trial was made and denied, appealed to this court.

There are some nine assignments of error which we will consider in the manner which seems advisable. The first two raise the question as to whether or not the application and affidavits accompanying it are an "instrument" within the meaning of section 108, supra. This section first appeared in our laws as section 113, Penal Code of 1901, and was copied verbatim from section 115, Penal Code of California. The latter section has never been construed by the Supreme Court of California, but the district court of appeals of the first district of that state in People v. Fraser, 23 Cal.App. 82, 137 P. 276, has, since our adoption of the section, held the term "instrument" therein means only "an agreement expressed in writing, signed and delivered by one person to another, transferring the title to or creating a lien on real property, or giving a right to a debt or duty."

In so determining the court relied upon a number of cases decided by the Supreme Court of California construing various provisions of the Civil Code of that state which used the term "instrument," and particularly in the case of Hoag v. Howard, 55 Cal. 564.

It is the general rule that when we take a statute from a sister state we take it with the interpretation previously placed upon it by the court of last resort of that state. This, however, is not an absolute rule, and if we think the construction so given is not consonant with common sense, reason, and our public policy, we are not absolutely bound to accept it. Phoenix Title & Trust Co. v. Old Dominion Co., 31 Ariz. 324, 253 P. 435; Kingsbury v. State, 27 Ariz. 289, 232 P. 887. Still less are we bound when the decision is one of an intermediate appellate court, and rendered after we have adopted the statute. Elias v. Territory, 9 Ariz. 1, 11 Ann. Cas. 1153, 76 P. 605; Germania L. Ins. Co. v. Ross-Lewin, 24 Colo. 43, 65 Am. St. Rep. 215, 51 P. 488; Hardenbergh v. Ray, 151 U.S. 112, 38 L.Ed. 93, 14 S.Ct. 305.

We therefore consider the question on its merits. The term "instrument" when used in law always imports a writing unless it is expressly stated to be otherwise. But the term is not necessarily confined to any definite class of legal documents. 32 C.J. 945. It is generally necessary to resort to the context or circumstances attending the use of the word in order to know to what it refers. The application described in the information is obviously a written document and thus within the broadest sense an "instrument." Is it, however, one within the meaning of the particular section on which the information is based? It is apparent that the section does not of itself place any limit on the kind of instrument except that it be one which "might be filed or registered or recorded under any law of this state." Chapter 95 of the Session Laws of 1919 provides:

"All applications for loans on farm lands shall be made on blank forms, to be prepared and furnished by the state treasurer, and shall be filed with the state treasurer, provided, that no application for a loan shall be accepted for filing by the state treasurer unless such application is accompanied by the sworn statement of three disinterested owners of land situated within the county in which the land offered as security for the loan lies, who shall set forth in said statement their estimate of the actual cash value of the land offered together with such other information as may be required by the rules and regulations to be adopted by the state treasurer and commissioner."

That the office of the state treasurer is a public office is of course plain, and the statute not only permits but requires that applications like the one in question must be filed before a loan is made, and that they shall not be accepted for filing unless the sworn statement of three other parties accompanies them. The application, therefore, comes within the letter of section 108, supra. But not only does it do this, but in our opinion it is also within the spirit and the purpose of the statute. The whole object of all laws which require or permit instruments to be filed, registered, or recorded in any public office is that the general public, if interested in the subject matter of the instrument may proceed to the proper office, and if therein they find an instrument duly filed, registered, or recorded, they may and must act with the presumption that such an instrument is indeed in existence and is genuine, and govern their affairs accordingly.

The very fact that the state has specified an instrument may or shall be filed, registered, or recorded is evidence that in its public policy it deems it important enough for the general good of its citizens that a place and a manner be provided where the existence of the instrument may be established, and we think that section 108, supra, was passed for the express purpose of preventing the filing or recording of any false instrument no matter what its nature, if that instrument was of a character which the state considered important enough to make the instrument a public record.

We have examined the cases cited by the defendant on this point. They are either based on statutory provisions which show on their face that the term "instrument" is intended to be limited to some particular class of document, or else merely follow the earlier cases without noting the difference in the context of the statute involved. We therefore hold that the application in question is an "instrument" within the terms of section 108, supra, and the information states a public offense.

The next three assignments of error deal with the admission of certain evidence as to the genuineness of the signatures attached to two of the three sworn statements accompanying the application for the loan. Briefly stated, it is the contention of defendant that the statute does not require that these statements be signed, but merely sworn to; that therefore any charge the instrument in question was forged, so far as the statements were concerned, must be directed to the oath and not the signature, and it was immaterial as to whether the signatures were made by the parties whose names appeared as the affiants or not; that the certificate of the notary to the statements is by paragraph 140, Revised Statutes of @Arizona of 1913, Civil Code, made presumptive evidence of the things contained therein, and therefore any effort to establish a forged statement must be by showing that the certificate of the notary as to the oath was untrue.

We agree with defendant in all of the above statements of legal principles. Chapter 95, supra, requires a "sworn statement" of the three disinterested land owners, but nowhere expressly provides that the statement must be signed as well. The general rule is that an affidavit is valid without signature, unless the latter is expressly required. Clifton Bank v. Clifton Armory, 14 Ariz. 360, Ann. Cas. 1915A 1061, 128 P. 810.

It is equally true that an addition to or erasure in an instrument which in nowise changes its legal effect is not a forgery within the criminal law. 26 C.J. 902.

The alleged forgery of the statements then involved only the question of whether the parties named as affiants had actually sworn to them, and not whether they had signed them. The certificate of the notary was presumptive, and, so long as it stood unimpeached, conclusive evidence they had so sworn. We think, however, defendant's conclusion that the evidence as to the signatures was inadmissible does not follow from the admitted premises. The notary had certified to both the signing and swearing. If his certificate was proved false as to one...