Maloney v. State

• Decision Date: 04 October 1909
• Citation: 121 S.W. 728,91 Ark. 485
• Parties: MALONEY v. STATE
• Court: Arkansas Supreme Court

121 S.W. 728

91 Ark. 485

MALONEY v. STATE

Supreme Court of Arkansas

October 4, 1909

Appeal from Ouachita Circuit Court; George W. Hays, Judge; reversed.

Judgment reversed and cause remanded for new trial.

Hal L Norwood, Attorney General and C. A. Cunningham, Assistant for appellee.

1. The indictment is sufficient in form fully to apprise the appellant of the particular crime with which he stood charged and against which he should defend himself. It fully meets the requirements of the statute. Kirby's Digest, § 1712. And a conviction or acquittal under it would prevent the State from putting the defendant in jeopardy a second time for the same offense. 5 Ark. 444; 19 Ark. 613; 73 Ark 487.

2. If there was any error in admitting the testimony of the witness Ketchum, that was waived. Moreover, it was not prejudicial. 77 Ark. 31; 51 Ark. 184; Id. 132; 43 Ark. 219; Id. 535.

FRAUENTHAL, J. BATTLE, J., absent, and not participating.

OPINION

FRAUENTHAL, J.

The defendant, Frank Maloney, was convicted of the crime of uttering a forged writing, and sentenced to the penitentiary for a term of two years; and from the judgment of conviction he prosecutes this appeal. The indictment upon which he was tried, with the caption omitted, was as follows:

"The grand jury of Ouachita County, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant, Frank Maloney, of the crime of uttering a forged writing, committed as follows, towit:

"The said defendant, on the 9th day of April, 1909, in Ouachita County, Arkansas, did unlawfully, wilfully and feloniously utter and publish as true to Spence Wooley a certain forged and counterfeit writing on paper purporting to be a check on the Bank & Trust Company of Walnut Ridge, Arkansas, in words and figures as follows, towit: 'Walnut Ridge, Ark., April 8, 1909, No. 614. Bank & Trust Company: Pay to the order of George Collins $ 6.17, six seventeen (6.17) dollars, C. B. McDonald.'

"The said forged writing being then and there passed, uttered and published by the said Frank Maloney to the

said Spence Wooley, with intent then and there feloniously to obtain possession of money, the property of said Spence Wooley, he, the said Frank Maloney, then and there well knowing the said paper to be forged and counterfeited; against the peace and dignity of the State of Arkansas."

The evidence tended to establish the following facts: On April 9, 1909, the defendant, in company with a person named Harris, entered the restaurant of one Spence Wooley in the city of Camden, Arkansas, and ordered supper. After finishing the meal, he gave to Spence Wooley the written instrument or check set out in the above indictment, and requested him to cash same, and to take therefrom the amount necessary to pay for the supper. Not having sufficient money to cash same, Wooley carried it to Mr. Harper and requested him to cash it, which he declined to do. He then showed the check to a policeman, who suggested that he see if the party had the money at the bank. Wooley then returned to defendant, and told him that he was unable to get the check cashed. The defendant then stated that he only had fifteen cents, and asked his companion, Harris, for some money, who did not have it. About that time the policeman appeared and arrested the defendant. Wooley was not acquainted with defendant, nor with his companion, and had not seen either of them before. The cashier of the First National Bank of Walnut Ridge testified that his said bank became the successor of the Bank & Trust Company of Walnut Ridge, Arkansas, in February, 1909, a short time before the alleged commission of this offense, and that the balances of deposits due all parties, as appeared on the books of the Bank & Trust Company, were transferred to the books of the First National Bank; and that his said bank had no deposit in the name of C. B. McDonald, and had no customer by that name. There was no other testimony relative to C. B. McDonald, the alleged drawer of the check, or as to his alleged signature; and no testimony whatever to as to George Collins, the alleged payee in the check.

It would appear from the testimony that there had been an examining trial of the defendant before a justice of the peace, and at that trial the party called Harris had been a witness. At the trial of the defendant in the circuit court the policeman, W. N. Ketchum, testified, over the objection of the defendant duly saved, that he had taken from the possession of Harris on said April 9th a little book, which book had been exhibited to the cashier of said First National Bank, and who stated that it was the kind used by the Bank & Trust Company. Over the objection of the defendant this witness, Ketchum, also testified that at the examining trial of defendant the party Harris testified that defendant signed a check while sitting in a hotel in Camden. There was no testimony as to where the person Harris was at the time of the trial in the circuit court. There was no testimony that any inquiry had been made for him or any effort to obtain his presence at the trial.

The defendant filed a motion in arrest of judgment on the ground that the indictment does not allege facts sufficient to constitute an offense. The crime of uttering a forged writing consists in offering to another a forged instrument with a knowledge of the falsity of the writing and with intent to defraud. Those essential elements of the crime are well charged in the indictment. To constitute the offense, it is not necessary that the writing should have been actually received as genuine by the party to whom the same is offered, or that the attempt to defraud be successful; the uttering is complete if the forged instrument is offered as genuine, or declared or asserted, either directly or indirectly, by words or by actions as good. Wharton's Criminal Law (10th Ed.) § 708; 5 Ency. of Evidence, 865; Elsey v. State, 47 Ark. 572, 2 S.W. 337; People v. Caton, 25 Mich. 388; State v. Horner, 48 Mo. 520; Smith v. State, 20 Neb. 284, 29 N.W. 923; 13 Am. & Eng. Ency. Law (2nd Ed.) 1102; 19 Cyc. 1388; Holloway v. State, 90 Ark. 123, 118 S.W. 256.

The instrument set out in the indictment was capable of working a legal injury. Although not indorsed by the alleged payee in the instrument, it had legal efficacy. The gravamen of the offense is the guilty intent which accompanies the attempt to defraud. As said by Mr. Bishop: "Since the offense of uttering is an attempt, it is complete when the forged instrument is offered; an acceptance of it is unnecessary, while yet it does not take away or diminish the crime." 2 Bish. New Crim. Law, § 605. If one, with intent to defraud, offers a forged instrument to another which is capable of injury, he has committed this offense, although the person to whom it is offered might not accept it without a written assignment. But in the instrument set out in the indictment one might obtain a right or an equitable title without a written assignment. Smith v. State, 20 Neb. 284, 29 N.W. 923; Lawless v. State, 114 Wis. 189, 89 N.W. 891; Brazil v. State, 117 Ga. 32, 43 S.E. 460. And the check could be transferred without a written assignment thereof so as to make the transferee the true owner thereof. Heartman v. Franks, 36 Ark. 501; Lanigan v. North, 69 Ark. 62, 63 S.W. 62.

It is urged by the defendant that there is not sufficient evidence to sustain the verdict, for the reason that it is not proved that the name of C. B. McDonald, affixed to the check as the alleged drawer, was a forgery. In a prosecution for uttering a forged writing, before there can be a conviction, the State must prove that the instrument offered was forged, and that the defendant knew it was forged. It is true that no witness testified that this was not the signature of C B. McDonald; but if C....