McDonald v. State

• Decision Date: 04 October 1915
• Docket Number: A-1813. [a1]
• Parties: MCDONALD v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

152 P. 610

12 Okla.Crim. 144, 1915 OK CR 219

MCDONALD v. STATE.

No. A-1813. ^[a1]

Court of Criminal Appeals of Oklahoma

October 4, 1915

Syllabus by the Court.

(a) In order to constitute forgery under the statute in this state it is not essential that the document alleged to have been forged is capable upon its face of deceiving a third party. It is sufficient if the instrument is or purports to be the act of another, by which any right or interest in real property is or purports to be transferred.

(b) Deeds conveying lands allotted to members of the Five Civilized Tribes are not void on their face because a recital is contained therein giving the roll number of the allottee even though such allottee may, in fact, be a restricted member of the tribe, as that term is ordinarily used in Oklahoma.

A conviction cannot be based upon the uncorroborated testimony of an accomplice. For testimony sufficiently corroborative under the law of this state to support a conviction, see opinion.

A telegram, the genuineness of which is admitted, is admissible in evidence, although it may not be in the handwriting of the accused. Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390.

Appeal from District Court, Tulsa County; L. M. Poe, Judge.

Don McDonald was convicted of forgery, and appeals. Affirmed.

Rittenhouse & Rittenhouse, of Chandler, for plaintiff in error.

Chas West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.

ARMSTRONG J.

The plaintiff in error, Don McDonald, was tried and convicted at the May, 1912, term of the district court of Tulsa county upon a charge of forgery in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of seven years. The information in this case is as follows:

"Be it remembered that Pat Malloy, the duly qualified and acting county attorney for Tulsa county, Okl., who prosecuted in the name and by the authority of the state of Oklahoma, comes now into the district court for Tulsa county, state of Oklahoma, on this the 7th day of March, A. D. 1912, and gives the court to understand and be informed that M. F. Wheatley, Don McDonald, W. Pyeatt, and George Crawford, on the 11th day of November, 1911, in Tulsa county, state of Oklahoma, and within the jurisdiction of this court, did unlawfully, willfully, and feloniously, and with the intent to defraud one George N. Sanger, and while acting together and in concert with each other, forge one certain warranty deed purporting to be the act of George N. Sanger, by which forged deed rights and interest in real property was then and there and thereby purported to be transferred and conveyed to the said M. F. Wheatley, in the real property described in said forged deed; said forged deed being in words and figures as follows, to wit:

'General Warranty Deed.

This indenture, made this 11th day of November, A. D. 1911, between George N. Sanger, a Creek citizen, roll No. 2546, a single man of lawful age, Tulsa county, in the state of Oklahoma, of the first part, and M. F. Wheatley, of Creek county, Okl., of the second part, witnesseth: The said party of the first part, in consideration of the sum of two thousand ($2,000.00) and No/100 dollars, the receipt of which is hereby acknowledged, does by these presents grant, bargain, sell, and convey unto said party of the second part, his heirs and assigns, all of the following described real estate, situated in the county of Tulsa, state of Oklahoma, to wit: The southeast quarter (S. E. 1/4) of section twenty-one (21), township seventeen (17) north, of range thirteen (13) of the Indian base and meridian, containing one hundred and sixty (160) acres, according to United States government survey thereof. To have and to hold the same, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining forever.

And said George N. Sanger, for himself and for his heirs, executors, or administrators, do hereby covenant, promise, and agree to and with said party of the second part at the delivery of these presents he is lawfully seised in his own right of an absolute and indefeasible estate of inheritance in fee simple in and to all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, and discharged and unincumbered of and from all former grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances, of what nature and kind soever, * * * and that * * * he will warrant and forever defend the same unto said party of the second part, his heirs and assigns, against said party of the first part, his their heirs and assigns, and all and every person whomsoever, lawfully claiming or to claim the same.

In witness whereof the said party of the first part has hereunto set his hand

the day and year above written.

[Sign here.] George N. Sanger.

W. Pyeatt.

State of Oklahoma, Tulsa County--ss.:

Before me, W. M. Fleetwood, a notary public in and for said county and state, on this 11th day of November, 1911, personally appeared George N. Sanger a single man to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same as his free and voluntary act and deed for the uses and purposes therein set forth.

[Seal.] W. M. Fleetwood, Notary Public.

My commission expires March 4, 1914.

State of Oklahoma, Tulsa County--ss.:

This instrument was filed for record on the 15th day of November, A. D. 1911, at 1:40 o'clock p. m.

[Seal.] H. C. Walkley, Register of Deeds.

109--388.'

Contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state."

A demurrer was interposed to this information, upon the ground that it failed to state facts sufficient to charge a public offense. The statute upon which the conviction is based, and which was in force at the time the prosecution was instituted, is section 2560, Snyder's Compiled Laws, and is as follows:

"Every person who, with intent to defraud, forges, counterfeits or falsely alters: 1st, Any will or codicil of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed or in any way changed or affected; or, 2nd, Any certificate or indorsement of the acknowledgment by any person of any deed or other instrument which by law may be recorded or given in evidence, made or purporting to have been made by any officer duly authorized to make such certificate or indorsement; or, 3rd, Any certificate of the proof of any deed, will, codicil or other instrument which by law may be recorded or given in evidence, made or purporting to have been made by any court or officer duly authorized to make such certificate, is guilty of forgery in the first degree."

Counsel's first assignment of error, and the one most strongly relied upon in the brief, as well as in the oral argument, is based upon the contention that the information does not state a public offense on account of the fact that the deed set out as part of the said information recites the following language: "George N. Sanger, a Creek citizen, roll No. 2546, a single man"--it being their contention that this recital renders said deed void, and the information insufficient, without additional averments in the information showing Sanger to be capable of conveying the land free from federal restrictions. In other words, counsel contend that, because there is a conveyance of allotted lands, by an allottee, this court should declare the law to be that all such conveyances are presumed to be void, and no person can commit crime by forging deeds to lands of such person if, in fact, they belong to the restricted class. We cannot agree to any such doctrine. Deeds which recite that the grantor is an Indian allottee of any well-known tribe or otherwise are not void on their face, and such has never been the law. In addition, the statute upon which this prosecution is based does not require that the document must be such that upon its face it is capable of deceiving a third party. This statute says that:

"Every person who, with intent to defraud, forges, counterfeits or falsely alters," etc., "any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed," etc., "is guilty of forgery in the first degree."

It is the duty of the courts of this state, when such can be done without violating any of the established rules or canons of construction, to so construe the laws of the land that the rights of the law-abiding public shall be protected. This statute fairly and reasonably construed would penalize any person falsely altering or forging a deed in the name of another, and clearly is broad enough to cover the transaction at bar. Counsel have extensively briefed and argued the propositions and various phases of the laws of the United States concerning the removal of restrictions upon certain classes of allottees of lands in the Five Civilized Tribes and have cited and discussed a large line of authorities which tend to support the doctrine that a deed or document void upon its face cannot be the subject of forgery. Neither of these propositions is involved in this prosecution. In Roode v. State, 5 Neb. 174, 25 Am. Rep. 475, the Supreme Court of Nebraska is quoted as supporting the doctrine contended for by counsel. In that case the court held that the document in question was void upon its face, and was not considering any question based upon the conditions presented here. That court, in discussion...