Neilsen v. State

• Decision Date: 06 February 1928
• Docket Number: 26702
• Court: Mississippi Supreme Court
• Parties: NEILSEN v. STATE. [*]

115 So. 429

149 Miss. 223

NEILSEN v. STATE. ^[*]

No. 26702

Supreme Court of Mississippi

February 6, 1928

Division B

APPEAL from circuit court of Pike county. HON. E. J. SIMMONS, Judge.

Pete Neilsen was convicted of uttering a forged instrument, and he appeals. Affirmed.

Case affirmed.

M. S. McNeil and E. G. Williams, for appellant.

The demurrer to the indictment in this case should have been sustained. The indictment is misleading in its phraseology; charges two crimes in one count, and fails to inform the defendant of the nature of the accusation against him. See Hill v. State, 72 Miss. 527; Burges v. State, 81 Miss. 484. The indictment charges the appellant with having in his possession a forged altered and counterfeited instrument, in writing, under section 966, Hemingway's Code, and charges the appellant with uttering a forged instrument, under section 968 of same. It would be just as admissible to charge in an indictment "that he did then and there wilfully, unlawfully and feloniously rape, ravish and carnally know a female, against her will, and did then and there wilfully, unlawfully and feloniously and of his malice aforethought kill and murder the same female person."

There is another serious objection to the indictment, when tested in the light of authorities, and that is, the instrument upon its face is not a subject of forgery. See Moore v State, 107 Miss. 181. It is possible that the instrument in question, under a proper indictment, could have been made the subject of forgery, but forgery cannot be predicated upon this instrument alone, which has no efficacy upon its face to injure. It is not sufficient under this indictment to allege that the appellant had in his possession the instrument, knowing that it was forged, and that he uttered the same, with the intent to cheat and defraud. This would not charge a crime. But the pleader should have gone further and shown by proper averments all the extrinsic facts, making the instrument capable of affecting the rights of another. In other words, uttering and declaring the instrument in question to be true, with the intent to cheat and defraud, could not in any possible way effect the rights of another, unless some further steps were taken, and the further steps taken in this case, as shown by the evidence, were the execution of notes to the bank and the assignment of the paper in question as collateral security, all of which was left out of the indictment. Upon this feature of the case we respectfully refer the court to 12 R. C. L., pages 149 and 150, and the authorities cited.

Instructions for the state are erroneous. Instruction number 2 is erroneous, for this reason: Instruction number 1 identified the instrument, as it should do, purported to have been uttered as the writing set out in the indictment. Instruction number 3 identified the instrument introduced in evidence as the contract between Pete Neilsen & Company and T. Singletary, but instruction number 2 was as follows: "The court instructs the jury for the state that if you believe beyond a reasonable doubt that Pete Neilsen wilfully, unlawfully and feloniously uttered and passed to the Mechanics' State Bank as true a forged instrument, with the intent to defraud, etc.," leaving the inference that there were possibly other forged instruments than the one described in the indictment. There were other instruments offered in evidence in this case. There were three notes, which the evidence showed the defendant carried away from the bank to have his two partners sign. There was no evidence that his partners signed them, but there was evidence that their signatures were on the notes when he took them back to the bank, and this instruction, construed together with the other instruction, told the jury that if they believed from the evidence that the defendant feloniously uttered and passed as true any other forged instrument than that charged in the indictment he was guilty. This, however, is not the most serious criticism of this instruction. We insist the granting of the second and third instructions is reversible error, for another reason: The two instructions read: "The court instructs the jury for the state that if you believe beyond a reasonable doubt, etc.," leaving out the essential and indispensable provision necessary to the safety of every defendant charged with crime to believe from the evidence beyond a reasonable doubt. Instruction number two told the jury that if they believed beyond a reasonable doubt that the defendant uttered a forged instrument--not from the evidence-- not the instrument alleged in the indictment--a forged instrument--any other instrument. The jury under these two instructions were left to speculate and indulge in suspicions against the defendant. The testimony shows that this case had been discussed throughout the county; that there had been several newspaper articles with reference to the alleged offense, which were read extensively by men all over the county. The jury were not confined to the evidence they heard in the trial of the case, but were warranted in basing their verdict upon belief, regardless of the source from which it came. They were warranted in believing what they heard before being accepted upon the jury. The criticism we offer to these instructions was held to be reversible error in Gordon v. State, 95 Miss. 543. See, also, Schappert v. Ringler, 45 N.Y.S. 345; McGonigal v. Pittsburgh Rys. Co., 89 A. 805, 243 Pa. 47; State v. Cooler, 98 S.E. 845, 112 S.C. 95; Lundon v. City of Chicago, 83 Ill.App. 208; State v. Hamilton, 157 P. 796, 80 Ore. 562; Peterson v. Bogner, 117 P. 805, 59 Ore. 555; International Harvester Co. of America v. Campbell, 96 S.W. 93, 43 Tex. Civ. App. 421; Lavenburg v. Harper, 27 Miss. 299. See, also, 129 Miss. 226, 91 So. 897; Hemming v. Rawlings, 144 Miss. 648.

The court should have sustained the peremptory instruction requested by the defendant in the court below at the conclusion of all of the testimony in this case. While it is exceedingly doubtful whether or not the proof was sufficient to make out a prima-facie case against the defendant on the state's testimony, the question of his guilt under the indictment was settled by his testimony, in view of the recent decisions of this court. Viewing the testimony offered by the state in connection with the testimony of the defendant this case comes within the rule laid down by Judge ANDERSON in Gaddis v. State, 110 So. 691.

Rufus Creekmore, Assistant Attorney-General, for the state.

Counsel first insist that the indictment in this case was bad for duplicity in that it charged in the same count two separate and distinct felonies, the first of which was the possessing of a forged, altered, or counterfeit instrument of writing, and second the uttering and publishing of the said forged instrument of writing. It will be observed from counsel's brief that they argued that the demurrer should be sustained because the indictment was duplicitous as stated above, but at the outset he is confronted with an insurmountable obstacle. In the case at bar, the demurrer did not set forth each one of its grounds, for the fact that the indictment was duplicitous, and, by its failure to do this, the trial judge was not given the benefit of this objection, which is urged for the first time. Under the well-settled rules of law, counsel cannot at this stage of the game raise this objection to the indictment. See State v. Butterfield Lumber Company, 103 Miss. 286, 60 So. 322.

Certainly it could not be said that the mere possessing of a forged instrument is a crime. The rule is well settled in this state that where an indictment in apt language charges the commission of a crime setting forth the necessary allegations to constitute such crime, and in the same count of the indictment also attempts to charge another crime, but charges it insufficiently, then the indictment is not bad for duplicity. Donaldson v. The State, 102 Miss. 346, 59 So. 99; State v. Howell, 106 Miss. 461, 64 So. 159; Ross v. The State, 135 Miss. 862, 101 So. 289. For other cases involving similar circumstances where the court has held the indictment not to be duplicitous, see the following: Greene v. The State, 23 Miss. 509; Sarah v. The State, 28 Miss. 267; Smith v. The State, 57 Miss. 822; Clue v. The State, 78 Miss. 661, 29 So. 516; Jimerson v. The State, 93 Miss. 685, 46 So. 948; State v. Clark, 52 So. 691; State v. Stringer, 105 Miss. 851, 63 So. 270.

Counsel next insist that the indictment in this case is void because the writing alleged to have been forged was not one which, even though genuine, might injure another. The argument of counsel is that inasmuch as the writing by which the contract was assigned does not appear in the indictment, the contract itself is not one of apparent legal efficacy. In support of this contention they cite the case of Moore v. The State, 107 Miss. 181. A casual reading of the opinion of the court in that case will show that it is not authority for the position of appellant. The instrument there alleged to have been forged could, under no circumstances, have injured anyone. There was no apparent legal efficacy, because, even if it had been genuine, it would have conferred on no one whatsoever the power to pay on it. In the case at bar, it cannot be denied that the contract is one which, if genuine, imposed duties and obligations on the parties contracting and therefore could injure someone. Or, in other words, it clearly is of apparent legal efficacy. 26 C. J., sec. 90, p. 942; McGuire v. State, 91 Miss. 151, 44 So. 802; France v. State, 83 Miss. 281.

Argued orally by M. S. McNeil and E. G. Williams, for appellant, and Rufus Creekmore, Assistant Attorney-General, for appellee.

OPINION

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