Mackguire v. State

• Decision Date: 04 November 1907
• Citation: 91 Miss. 151,44 So. 802
• Court: Mississippi Supreme Court
• Parties: LEMON MACKGUIRE v. STATE OF MISSISSIPPI

44 So. 802

91 Miss. 151

LEMON MACKGUIRE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 4, 1907

October 1907

FROM the circuit court of Claiborne county, HON. JOHN N. BUSH Judge.

Mackguire the appellant, a negro, was indicted and tried for forgery was convicted and sentenced to the penitentiary for five years; and appealed to the supreme court.

Appellant was convicted of the forgery of a written order directed to the American Express Company, which order was as follows:

"Mr Express Agent, Please let this boy have my jug. [Signed] William Foster."

William Foster was a white man and testified for the state that he had never written and knew nothing of the order.

The indictment, as originally drawn, charged appellant with an attempt in forging the instrument to defraud William Foster. The appellant demurred to the indictment, on the following reasons:

(1) Because no offense in law is charged in the indictment.

(2) Because the indictment does not show an instrument in either count which on its face may be the subject of forgery, without alleging extrinsic facts which are not alleged in either count.

(3) Because said indictment does not charge in either count that the intent therein alleged was felonious.

(4) Because said instrument which is set forth in each count purports to be an order for the delivery of something, and neither count sets forth that the drawee was in possession of such thing at the time of the making or at the time of the uttering.

(5) Because the said instrument set forth in each of said counts is not of legal efficacy on its face, bears no date, and is too vague and uncertain, without the allegation of extrinsic facts not alleged in either count, to be the basis of forgery.

The court below overruled the demurrer. Before the jury were empaneled the district attorney asked leave of the court to amend the indictment in open court by striking out the name, "William Foster," as the party attempted to be defrauded and in lieu inserting the name, "American Express Company," in order to show that the order was written by appellant with intent to defraud the American Express Company. The amendment was, by permission of court, made over the objection of appellant. Appellant thereupon made application for continuance on the ground of surprise, which was denied. When the state had rested its case the appellant moved for an acquittal because of an alleged variance between the allegations of the indictment and the proof, but the motion was overruled.

Affirmed.

R. B. Anderson, for appellant.

Appellant's demurrer to the indictment should have been sustained. The indictment does not state such extrinsic facts as would make the forged order the basis for the charge of forgery, because the order is merely for the delivery of goods, and is signed, "William Foster," and does not state upon its face that the agent of the American Express Company had any jug either belonging to Foster, or which should have been delivered to Foster's order. Moreover, the order is vague, uncertain, without date, and does not state who "this boy" was.

The indictment should have alleged that the agent had in custody, subject to the order of Foster, a jug; and, further, that the indictment should have alleged who "this boy" was. 19 Cyc., 1405; Russell v. State (Fla.) 40 So. 625.

The indictment was fatally defective, because it failed to charge the intent to have been felonious, the intent being by universally acknowledged principles of law, an essential averment, and necessarily can be set out properly only by saying it was with felonious intent.

Under the circumstances, the court should have granted the continuance, after it allowed the district attorney to amend the indictment; appellant having promptly made application for continuance on the ground of surprise.

Geo. Butler, assistant attorney-general, for appellee.

In answer to appellant's contention, that the indictment is insufficient because of the failure to allege extrinsic facts, we submit, that the writing of the, order is clearly one of which forgery is predicable. Code 1906, § 1137. The three essentials are alleged, viz.: A writing in terms of apparent legal efficacy; a fraudulent intent in the mind of defendant, and a false making and uttering. Bishop's New Crim. Proc., 400.

The order quoted in the indictment is not so incomplete in form as to leave an uncertainty in law whether or not it is valid. It shows that both the maker and the addressee may be affected thereby; that both are connected with the property mentioned. The instrument is one that appears on its face to possess legal validity. France v. State, 83 Miss 281, S.C. 35 So. 313. It was, therefore, not necessary to set out any extrinsic facts. Bishop's Directions & Forms, 470. Where the offense is a felony, the indictment must charge a felonious forgery, but not...