Marshall v. State
| Decision Date | 06 October 1927 |
| Docket Number | 25727 |
| Parties | CHARLES EARL MARSHALL v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Sarpy county: JAMES T. BEGLEY JUDGE. Affirmed as modified.
AFFIRMED AS MODIFIED.
Nickerson & Nickerson and Pitzer & Tyler, for plaintiff in error.
O. S Spillman, Attorney General, and T. J. McGuire, contra.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON and EBERLY, JJ ELDRED and HASTINGS, District Judges.
The defendant was tried and convicted in the district court for Sarpy county, Nebraska, upon the charges of forgery and uttering forged notes. The information upon which he was convicted contained four counts. In the first count of the information defendant was charged with having forged the signature of Mike Klien to a note in the amount of $ 1,500, the second count charged the defendant with uttering and publishing said note, and the third count charged the defendant with having forged the signature of H. A. Timmerman to a note in the amount of $ 2,500, and the fourth count charged the defendant with uttering and publishing the Timmerman note. By this proceeding the defendant seeks a reversal of the judgment of conviction.
Before the arraignment the defendant moved to quash the information, one of the grounds being that same was not verified as required by law. The motion was overruled and the ruling thereon is assigned as error. An examination of the information discloses that it has no formal verification attached to it. The information is in the form of an affidavit. Immediately following the title of the case and preceding the information appears the following: "State of Nebraska, County of Sarpy, ss." In the body of the information the county attorney says he gives the court to understand and be informed, then follows the first count, wherein forgery is charged in direct and positive terms, and in the beginning of the second, third and fourth counts the county attorney "being first duly sworn on his oath shows," then follow in direct and positive terms the charges of uttering and publishing, forgery, and uttering and publishing. At the end of the information appears the signature "H. A. Collins," the county attorney referred to in the information, and following his signature: "Subscribed and sworn to before me this 9th day of October, 1926, Eliza M. Wilson, Clerk of the District court, by C. S. Marth, Deputy." To this is attached the seal of the court.
Counsel for defendant contend that because no formal verification in the form of a statement or certificate is appended to the information stating that the facts therein contained are true, or true as the county attorney verily believes, the same is not verified by the oath of the county attorney, as required by section 10088, Comp. St. 1922. The statute requires that the information "shall be verified by the oath of the county attorney, complainant, or some other person." The statute is mandatory and has been so construed by this court. Trimble v. State, 61 Neb. 604, 85 N.W. 844. Verify means 3 Bouvier, Law Dictionary (3d Rev.) 3394. To meet the requirements of the statute, it is sufficient if it appears, no matter in what form, that the truth of the charge or charges contained in the information are confirmed and substantiated by the oath of the county attorney. The county attorney subscribed to the information and was sworn thereto by an officer qualified to administer the oath. It appears in the information that he made the charges on his oath; the legal import of this is that the county attorney made oath that the charges therein were true. This is sufficient to meet the requirements of the statute, although no formal verification was appended thereto. However, the form used is not recommended as a model to be used in verifying informations. A form meeting all requirements of the statute is set out in Nichols v. State, 109 Neb. 335, 191 N.W. 333, and should be used in verifying informations, although any form may be used that meets the requirements of the statute.
It is assigned as error that the information was not filed while the court was in session at a regular jury term, and that by reason thereof the court did not acquire jurisdiction to try the defendant.
It appears from the record that on preliminary examination the defendant was held to appear at the next jury term of the district court for Sarpy county, which commenced on October 11, 1926. A transcript of the preliminary examination was filed on August 2, 1926. The information on which defendant was tried was filed October 9, 1926.
It is stated by counsel, although such does not appear in the record, that the term during which the information was filed was an equity term, and that court was not in session at the time the information was filed. The question here presented was not brought to the attention of the trial court in any way, but is raised for the first time in this court. In support of their contention counsel cite In re Vogland, 48 Neb. 37, 66 N.W. 1028, and Cubbison v. Beemer, 81 Neb. 824, 116 N.W. 862, wherein it is held:
"Under the provisions of chapter 108 of the Laws of Nebraska passed in 1885, the requirement that 'all informations shall be filed during term, in the court having jurisdiction of the offense specified therein,' is mandatory, and an information, upon which the accused is to be tried for felony, is void if filed in vacation."
If the statute on which those decisions were based was still in force the contention of counsel would be correct, but in 1915 the legislature amended the section by striking out "during the term," and the section now reads:
"All informations shall be filed in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant." Section 10087, Comp. St. 1922.
The plain intention and purpose of the legislature in making that amendment was to do away with the construction placed thereon by this court in the cases cited. To give the statute the construction that counsel for the defendant now contends for would be to judicially legislate that back into the statute which the legislature deliberately took out by the amendment. This we are not inclined to do. The statute as amended does not require that an information must be filed "during the term," and no good reason exists for requiring it to be done. "In the absence of a statute to the contrary, informations may be properly filed with the clerk of court in vacation." 31 C. J. 637, sec. 151; State v. Kyle, 166 Mo. 287, 65 S.W. 763; State v. Corbit, 42 Tex. 88. An information may now be filed in vacation in the court having jurisdiction of the offense.
Counsel for defendant cite Nichols v. State, supra, as holding that an information must be filed when the court is in session at a jury term. This is not correct. In that case a brief form of an information charging murder in the first degree was approved as sufficient and as a proper standard to be followed, and the question now under consideration was not involved or decided. We conclude that the trial court was not without jurisdiction to try the defendant on account of the information having been filed while the court was not in session at a regular jury term.
It is urged that there is a material variance between the name "H. A. Timmerman," alleged to have been forged, and the name "H. A. Timnernan" appearing as maker on the forged note. The evidence shows beyond any doubt that it was the name "H. A. Timmerman" that was intended to be forged on the note, and that of no other person. The simulation of the signature of "H. A. Timmerman" on the forged note is so well executed that a person used to comparing signatures might be deceived thereby. In writing the signature of "Timmerman" the forger misspelled the name by substituting the letter "n" in two places in the name for the letter "m," but the signature is so cleverly simulated otherwise that it takes more than a casual inspection to determine that the name has been misspelled and that it is not the genuine signature of H. A. Timmerman.
It is upon the misspelling of the name "Timmerman" and the spelling of it as "Timnernan" that the defendant predicates his contention of material variance. It is claimed that by reason of the misspelling of the name "Timmerman" the names "Timmerman" and "Timnernan" are not idem sonans, and that the trial court should have held as a matter of law that such variance was fatal. The names are practically idem sonans, and the person writing the name to the forged note intended that it should be taken for the name "Timmerman," and having written it with that intention in such a way as might deceive a person of ordinary prudence, his fraudulent purpose and felonious intent to commit a forgery are as clearly manifested as they would have been if the spelling had been entirely correct.
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