Mead v. State

• Decision Date: 17 November 1891
• Citation: 23 A. 264,53 N.J.L. 601
• Parties: MEAD v. STATE.
• Court: New Jersey Supreme Court

23 A. 264

53 N.J.L. 601

MEAD

v. STATE.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1891.

(Syllabus by the Court.)

Error to supreme court.

Indictment against William T. Mead for forgery. Verdict of guilty, and judgment thereon. Defendant brings error. Affirmed.

J. J. Crandall, for plaintiff in error. Thomas B. Harnett, for the State.

MCGILL, Ch. The plaintiff in error was convicted in the Camden county court of quarter sessions upon an indictment for forgery containing four counts, the first of which charged him with having forged the indorsement of D. H. Erdraan on the back of a promissory note of the following tenor, to-wit: "Camden, N. T., Feb. 7, 1890. One month after date I promise to pay to the order of D. H. Erdman, at Camden Safe-Deposit & Trust Company, Camden, N. J., three hundred and fifty dollars. $350. W. T. Mead, "—with intent to injure and defraud Daniel H. Erdman. The second count was similar to the first, except that it charged an intent to defraud generally, without alleging an intent to defraud a particular person. The third count charged him with uttering the same note with intent to injure and defraud Daniel H. Erdman; and the last count was similar to the third, except that it charged an intent to injure and defraud, without alleging an intent to defraud a particular person. Moving in arrest of judgment, the plaintiff in error sought to question the sufficiency of the indictment for that, among other things, it did not exhibit a forgery which could injure Daniel H. Erdman, or any other person. Upon the denial of this motion, error is assigned.

No objection was made to the indictment prior to the swearing of the jury. The fifty-third section of the criminal procedure act (Revision, 277) requires that all objections to an indictment, for any defect of form or substance apparent on the face thereof, shall be taken by demurrer or motion to quash before the jury is sworn; and it has not been suggested how the bar of this statute can be surmounted. But as the motion assumes that no crime was charged, and great stress has been put upon that point by counsel, I will shortly examine the indictment. It alleges that upon the back of a promissory note made by the plaintiff in error, payable to the order of D. H. Erdman, the name of Daniel H. Erdman was forged, with intent to injure and defraud. The forgery put Erdman in the attitude of accommodation indorser, not under obligation while the paper remained in the hands of the maker, but liable to be put under obligation whenever the maker should duly pass the note to a third person. The instrument was complete; and, so far as it was concerned, nothing more was needed to accomplish the injury to Erdman or a third person. No forgery can do injury until it is uttered. Nevertheless it is a crime, because it makes an instrument intended for use to the injury of another. Because it may be so used, and it is intended to be so used, it is justly regarded as tending to injure. In the case of State v. Robinson, 16 N. J. Law, 507, a bank-note for five dollars, issued by the Lafayette Bank of Boston, which was insolvent, was altered by pasting the words "New York" over the word "Boston,"— there being a solvent Lafayette Bank in New York,—with intent to use it as a genuine note of the New York bank. Such a note, in the hands of the forger, created no liability on the part of the New York Bank, yet it was held to be a criminal forgery because the alteration made the note purport on its face to be made by the latter bank, and thereby tended to charge that bank with its payment. It is not necessary to show upon the face of the indictment how, or in what manner, the party is to be defrauded. That is a matter of evidence at the trial. All that is necessary in the indictment is to show an instrument which on its face is capable of being used to create a liability, and to aver that it was made with intent to defraud. West v. State, 22 N. J. Law, 212, 235. The remaining objections to the indictment go to the sufficiency of the counts for uttering the forgery. It will not profit to examine them; for, aside from the bar of the statute to the consideration of such objections after the jury is sworn, it is well established that the counts for forgery alone will sustain the conviction. West v. State, Id. 236; Cook v. State, 24 N. J. Law, 845; Johnson v. State, 26 N. J. Law, 321, on error, 29 N. J. Law, 453; Hunter v. State, 40 N. J. Law, 532.

Another error assigned is that at the trial the state was permitted to produce secondary evidence of the note, and the forged indorsement upon it, without having first shown its inability to produce the originals. It...