May v. State

• Decision Date: 05 November 1917
• Docket Number: 19895
• Citation: 76 So. 636,115 Miss. 708
• Court: Mississippi Supreme Court
• Parties: MAY v. STATE

76 So. 636

115 Miss. 708

MAY v. STATE

No. 19895

Supreme Court of Mississippi

November 5, 1917

Division A

APPEAL from the circuit court of Leflore county, HON. F. E. EVERETT Judge.

Gibb May was convicted of unlawfully uttering and publishing a forged check and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Alfred Stoner, for appellant.

The instruction shown on page 32 of the record informs the jury that if they believe beyond a reasonable doubt that the defendant uttered or passed, or undertook to pass the said check, knowing it to be forged or counterfeit, then they should convict, etc. This instruction is very inaccurately drawn and clearly does not impart the correct law. The jury were not even informed that the check must have been uttered or published as true with the intent to defraud. It is evident that this indictment was found under section 1192 of the Code of 1906, which section is as follows: "Every person who shall be convicted of having uttered or published as true, and with intent to defraud, any forged, altered or counterfeit instrument, or any counterfeited gold or silver coin, the forgery, altering or counterfeiting of which is hereinbefore declared to be an offense, knowing such instrument or coin to be forged, altered or counterfeited shall suffer the punishment herein provided for forgery."

No intent to defraud is mentioned in this instruction, nor were the jury informed that this check must have been published as true. Testimony as to whether Dr. Bowles signed the check was admitted when the question of the signature of Mr. Bowels was before the court, over the objection of the defendant, also as to whether Dr. Bowles carried an account with the Bank of Commerce. The facts do not prove nor tend to prove any fact concerning the signature of Bowels as alleged in the indictment.

"Where extrinsic facts are necessary to be known and considered along with a writing in order to constitute forgery, an indictment therefor must be set out in the facts, as well as the instrument itself. Moreover, the persons whose names are forged to such a certificate must be trustees of the public schools, and this fact must be alleged and proved." Griffin v. State, 96 Miss. 309, 51 So. 466.

The indictment charged the defendant with an attempt to defraud T. A. Bowels, and of course, was not demurrable, since nothing on its face showed that Mr. Bowels would not be introduced to deny the signature.

"If a writing is so incomplete in form as to leave an apparent uncertainty in law whether it is void or not, a simple charge of forging it fraudently, etc., does not show an offense but the indictment must set out such extrinsic facts as will enable the court to see that, if it were genuine it would be valid." France v. State, 85 Miss. 687, 35 So. 313. We submit that on the authority of this case alone the case should be reversed.

In conclusion, we respectfully submit that this cause should be reversed and the defendant discharged from jail.

Gardner, McBee & Gardner, for appellant.

We respectfully submit that there is error in the record and that this case must be reversed because of the giving of the instruction at page 32 of the record, which is as follows:

"The court instructs the jury that in this case you do not have to believe that the defendant can read or write or that he forged the check in question; it is only necessary that you believe from the evidence in this case beyond a reasonable doubt that he uttered or passed or undertook to pass said check knowing the same to be forged or counterfeited, and if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Gibb May, did pass or utter or undertake to utter said check knowing it to be false, then you will find him guilty as charged.

The trouble with this instruction is that it disregards the intent necessary to be alleged and proven, and this, we submit, is fatal error.

In the instant case, is it necessary to allege a fraudulent intent? The statute upon which this indictment was found in section 1192 of the Mississippi Code of 1906. Ivy v. The State, 84 Miss. 265; Rutherford v. State, 57 So. 224; 19 Cyc. 1427; Agee v. State, 113 Ala.. 52, 21 So. 207; Claiborne v. State, 51 Ark. 88, 9 S.W. 851; People v. Wyman, 148 N.Y. 29, 42 N.E. 408; 12 R. C. L. 152; State v. Sherwood, 90 Iowa 550, 58 N.W. 911, 48 A. S. R. 461; State v. Weaver, 149 Iowa 403, 128 N.W. 559; Ann. Cases 1912C, 1137, 31 L. R. A. (N. S.), 1046.

We respectfully submit that the giving of the instruction above complained of is error. We think we have shown that it was necessary to allege and prove the fraudulent intent. We further submit that there is fatal error, in this: The prosecution proceeds along the line that the defendant sought to utter a check, which had been forged by some persons who attempted to forge the name of T. A. Bowles, a witness for the state.

Under the indictment in this case, all of this testimony was inadmissible. We do not mean to say that under a proper indictment it might not have been admitted, but, we do contend that in this case, it ought not to have been.

The attorney-general contents himself with the idea that the name "T. A. Bowles," as contained in the indictment is idem sonans, with T. A. Bowels.

In the first place, we submit as a matter of fact, this is not correct; one of these names being a word of one syllable and the other a word of two syllables. "Idem sonans means of the same sound or sounding the same." State v. Witt, 8 P. 769, 34 Kas. 488; State v. Griffie, 123 S.W. 878, 118 Mo. 188; State v. Griffie, 123 S.W. 878; Brown v. Marqueze & Co., 30 Tex. 77.

In the light of the above authorities, we say that "Bowels" and "Bowles" are not idem sonans. State v. Fay, 65 Mo. 490; Brown v. People, 66 Ill. 344; Porter v. State, 15 Ind. 433; McClellan v. State, 23 Tex.App. 401, 5 S.W. 248.

In the above case there was in the names used, a difference in syllables, just as in the case at bar. That the indictment by proper allegations should explain the meaning of names when the name signed to a check is meant for another name, we cite: Section 327, Bishop on Statutory Crimes (3 Ed.); Crawford v. State, 40 Tex. Cr. R. 344, 50 S.W. 378; Polk v. State, 40 Tex. Cr. R. 668, 51 S.W. 909; 19 Cyc. 1405; Russell v. State, 40 So. 625; Macguire v. State, 91 Miss. 151.

We respectfully submit that for the reasons above given, this case should be reversed.

Frank Robinson, assistant attorney-general, for the state.

This indictment is based on section 1192, of the Code of 1906, which reads as follows: "Uttering false instrument, counterfeit coin, etc. Every person who shall be convicted of having uttered or published as true, and with intent to defraud, any forged, altered, or counterfeit instrument, or any counterfeit gold or silver coin, the forgery, altering or counterfeiting of which is hereinbefore declared to be an offense, knowing such instrument or coin to be forged, altered, or counterfeited, shall suffer the punishment herein provided for forgery."

The first error argued by counsel for appellant is, that the court erred in giving the following instructions for the state: "The court instructs the jury for the state, that you do not have to know that the defendant is guilty as charged in the indictment, before you can convict him; it is only necessary that you should believe from the evidence beyond a reasonable doubt that he is guilty. If you believe from all of the evidence beyond a reasonable doubt that the defendant is guilty, then it is your sworn duty to so find.

"The court instructs the jury that in this case you do not have to believe that the defendant can read or write or that he forged this check in question; it is only necessary that you believe from the evidence in this case beyond a reasonable doubt that he uttered or passed, or undertook to pass, said check knowing the same to be forged or counterfeit, and if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Gibb...