Morearty v. State
| Decision Date | 09 January 1896 |
| Docket Number | 7864 |
| Citation | 65 N.W. 784,46 Neb. 652 |
| Parties | E. F. MOREARTY v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Trie below before SCOTT, J.
REVERSED AND REMANDED.
John O Yeiser, Martin Langdon, and Mahoney & Smyth, for plaintiff in error:
The instrument set out in the information, being of doubtful or uncertain validity, cannot be the subject of forgery except by the allegation of extrinsic matter. .)
A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state:
In reply to the objections to the sufficiency of the information, reference was made to the following cases: Roush v. State, 34 Neb. 326; State v. Hart, 67 Iowa 142; State v. Baumon, 52 Iowa 68; Peete v. State, 2 Lea [Tenn.], 513; Dixon v. State, 26 S.W. [Tex.], 500; State v. Gullette, 26 S.W. [Mo.], 354; People v. Krummer, 4 Park. Crim. Rep. [N. Y.], 217; Noakes v. People, 25 N.Y. 380; Rudicel v. State, 13 N.E. [Ind.], 114; Powers v. State, 87 Ind. 97; Arnold v. Cost, 3 G. & J. [Md.], 231; Rex v. Ward, 2 Ld. Ray. [Eng.], 1461; Crawford v. State, 19 S.W. [Tex.], 766; State v. Wheeler, 25 P. [Ore.], 394; People v. Brown, 72 N.Y. 571; Commonwealth v. Costello, 120 Mass. 370; Commonwealth v. Brown, 18 N.E. [Mass.], 587; Stewart v. State, 16 N.E. [Ind.], 186; Hendricks v. State, 9 S.W. [Tex.], 555; Brewer v. State, 22 S.W. [Tex.], 41; Billings v. State, 107 Ind. 57.
OPINION
The facts are stated in the opinion.
As a result of a trial during the May, 1895, term of the district court of Douglas county the plaintiff in error was convicted of the crime of forgery and was sentenced to be imprisoned for a term of one year in the penitentiary and to pay a fine of $ 100. To obtain a review of the proceedings therein the plaintiff in error brings the cause to this court on petition in error.
The information filed contained two counts, the first of which charged as follows:
The second count charged that the plaintiff uttered and published the order as true and genuine, with intent to defraud.
It is first argued that the information filed is insufficient and did not charge a crime; that there are two defects apparent upon its face, one of which is a failure to allege an intent to defraud "any person or persons, body politic or corporate, or any military body organized under the laws of this state," and the other that the instrument set out in the information by copy as forged was one on which no action could be predicated without an allegation of extraneous matter, and no such facts were pleaded. The first of these objections to the information is untenable. It is sufficient, in an information for forgery, to charge the intent to defraud in general terms. It is not necessary to state or prove an intent to defraud any particular person. ( Roush v. State, 34 Neb. 325, 51 N.W. 755; Criminal Code, sec. 417.)
It is claimed, as we have before stated, that the information was defective for the reasons that the instrument alleged to have been forged, which was set out in the information in full as the basis of the charge of forgery, was so imperfect or incomplete in its terms that it was not on its face apparently good and valid and that it was necessary, to a good information, that there should have been averments of matters extrinsic to the instrument, explanatory of or extending its signification and that no such matters were pleaded. In our statutes (see Criminal Code, sec. 145) there is stated, in a long and quite comprehensive list, a number of instruments which may be the subject of forgeries, and among them, "any order or any warrant or request for the payment of money, or the delivery of goods and chattels of any kind." The instrument declared upon in the information purported to be an order for the delivery of a trunk, and its false making, if sufficiently perfect in its terms, would be within the provisions of our Code relating to forgery. The only further question is, was it apparently sufficient within itself to effect the purpose for which it was made? The instrument in this case was one which upon its face called for the delivery to the bearer of a specific article, "the trunk I put in your house at 5:30 this P. M." "The bill is all paid and everything is O.K." The signature attached was "Frank McKinzie, Constable." While it is true it was not addressed to any person, yet it is apparent that it could be but for the one party with whom the trunk was left or in whose house it was placed at 5:30 P. M. of the day the instrument was dated, and it seems quite clear that the order, if genuine, would have been explicit and clear enough for presentment to such party and demand for the delivery of the trunk and to warrant him in honoring it. This being true, its making was forgery, and it was not necessary to plead any facts extrinsic to it in the information. If used, it was of a character to deprive some one of property rights. There was a possibility of some person being defrauded by its false making, and this was apparent from its face, and no averments of other and extrinsic matters were necessary in the complaint. Its meaning was sufficiently apparent or could be gathered from the face of the instrument alone, and it was not essential to a full charge that there should be statements of evidential matters in the pleading. (Dixon v. State, 26 S.W. 500; State v. Gullette, 121 Mo. 447, 26 S.W. 354; Noakes v. People, 25 N.Y. 380; Hendricks v. State, 26 Tex. Ct. App. 176, 9 S.W. 555; People v. Krummer, 4 Park. Cr. 217.) "But if the meaning of the transaction can be sufficiently extracted from the instrument itself, it will not be necessary to state matters of evidence, so as to make out more fully the charge." (1 Wharton, Criminal Law, sec. 740.)
It was assigned that the court erred in giving...
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