Moore v. Com.

• Decision Date: 03 March 1892
• Citation: 18 S.W. 833,92 Ky. 630
• Parties: Moore v. Commonwealth.
• Court: Kentucky Court of Appeals

18 S.W. 833

92 Ky. 630

Moore v. Commonwealth.

Court of Appeals of Kentucky.

March 3, 1892

Appeal from circuit court, Hardin county.

"To be officially reported."

Indictment of Charles Moore for forgery. Defendant was convicted, and appeals. Reversed.

Holt C.J.

The charge is forgery of a witness certificate against the state. It is urged the statute does not embrace such a case. It provides: "If any person shall forge or counterfeit any writing whatever, whereby fraudulently to obtain the possession of or to deprive another of any money or property or cause him to be injured in his estate or lawful rights, or if he shall utter and publish such instrument, knowing it to be forged and counterfeited, he shall be confined in the penitentiary not less than two nor more than ten years." It is said the word "another" is plainly so limited by the succeeding words, "or cause him to be injured in his estate," as not to include the state; and that there is no statute to punish one, if it be the object of the fraud. Such a legislative omission would be singular. If the contention be well grounded, then, but for the statutory rule that a word importing the masculine gender shall apply to females, it would only be when the fraud relates to a man that the offender could be punished. If perpetrated upon a body politic, or a society or a corporation, there is no statute embracing the case. While criminal laws are to be strictly construed, yet their letter is not to be so far followed as to render them ineffectual to suppress the mischief. The words referred to were evidently intended merely to mean the party intended to be defrauded. It is manifest this was the legislative intention. The word "another" means a different person; and the word "person," by our statute, includes corporations societies, bodies politic, and the public generally, as well as individuals. After properly using a word so comprehensive it cannot well be supposed it was intended to limit its meaning, as contended, by the use of the pronoun. It was used as equivalent to the word "another," which in legal meaning embraces the state.

It is next said the indictment is defective because it does not aver that the certificate was forged in order to deprive the state of any money or property, or to injure it in its estate. It does, however, aver that it was done with intent to cheat and defraud it. An indictment, in setting forth a statutory offense, need not follow the language of the statute. It is sufficient if it does so in substance, as is the case here.

It is also sufficiently specific as to the act of the accused. It avers, after using the proper legal words necessary to such a charge, that he forged the certificate, which is then fully set forth. He was at the time not a sworn or regular deputy of the clerk of the court, but was acting as such with authority to issue certificates in the clerk's name to witnesses who were in attendance upon the court. He signed the clerk's name to this certificate, but there is evidence showing the person in whose favor it issued was not in attendance as a witness. It is therefore urged the request of the accused to direct the jury to find him not guilty should have been granted, upon the ground that there was a fatal variance between the charge in the indictment and the evidence. In other words, that he was charged with making the paper without authority, while the evidence showed he was authorized to sign the clerk's name to it, but that it was false. He had no authority, however, to make a false certificate. It could not have been conferred. Although he was authorized to sign the clerk's name to witness certificates, yet, if he did so to a false one, made out by him, it was forgery. It, says Blackstone, is "the fraudulent making or alteration of a writing to the prejudice of another man's rights." 4 Cooley, Bl. Comm. p 247. Another leading writer says it is "the false making, or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." 1 Bish. Crim. Law, § 572. The clerk himself would be liable to the charge of forging a false witness certificate, although signed by him, if it were in fact false. It purports to be an obligation upon the state. If genuine, it evidences an indebtedness upon its part. One may be guilty of the false making of an instrument, although signed and executed in his own name, if it be false in a material part, but calculated to induce another to give credit to it as genuine. ...