Newby v. State

• Citation: 75 Neb. 33,105 N.W. 1099
• Parties: NEWBY v. STATE.
• Decision Date: 22 November 1905
• Court: Supreme Court of Nebraska

75 Neb. 33

105 N.W. 1099

NEWBY

v.STATE.

Supreme Court of Nebraska.

Nov. 22, 1905.

Syllabus by the Court.

To charge the crime of having possession of a forged, false, and altered deed, with intent to utter and publish the same as true and genuine, with intent to damage or defraud, as defined in the last clause of section 145 of the Criminal Code, the words “knowing the same to be false,” or their equivalent, must appear in the information, and where such words are wholly omitted the information will not sustain a conviction.

Error to District Court, Saline County; Hurd, Judge.

William L. Newby was convicted of having in his possession a forged instrument with intent to utter the same, and brings error. Reversed.Wm. L. Newby, John D. Milliken, W. G. Hastings, and W. L. McGintie, for plaintiff in error.

Norris Brown, Atty. Gen., B. V. Kahout, and Joshua Palmer, for the State.

BARNES, J.

William L. Newby was convicted in the district court of Saline county of having in his possession a forged instrument, with intent to utter the same as genuine,for the purpose of defrauding one Joseph R. Jennings, and was sentenced to serve a term of two years in the state penitentiary. To reverse that sentence, he brings the case here on error.

The information on which he was tried contained three counts charging him with three separate offenses for the violation of the provisions of section 145 of the Criminal Code, entitled “Forgery, Counterfeiting,” etc. The first count of the information charged the accused with having forged a certain deed to lots 144 and 145 in R. S. Bentley's addition to the town of Friend, Saline county, Neb., and alleged that the offense was committed at Coyle, in the territory of Oklahoma. But for the fact that it appeared that the act complained of was committed in a foreign jurisdiction, the facts stated therein were sufficient to sustain a conviction. The second count charged the accused with having the forged instrument described in the first count in his possession in Saline county, Neb., with intent to utter and publish the same, and thereby defraud the said Joseph R. Jennings. While the third count, which was sufficient in form and substance, charged him with having uttered and published the forged instrument above mentioned in Saline county, Neb., knowingly, and with the intent to defraud the said Jennings. It appears that the jury found him not guilty as to the first and third counts, but guilty of the crime attempted to be charged in the second count of the information, which reads as follows: “And the said B. V. Kahout, county attorney in and for said county and state, gives the court to further understand, and be informed, that the said William L. Newby did, on the 18th day of February, 1904, in Saline county, Nebraska, aforesaid, unlawfully, feloniously, and purposely, have in his possession with intent to utter and publish as true and genuine the false and fraudulent deed as aforesaid, with intent then and there and thereby to damage and defraud the said Joseph R. Jennings, aforesaid.”

It appears that the accused, after verdict and before sentence, filed a motion in arrest of judgment, and alleged as one of the grounds of his motion that the second count of the information upon which he was convicted did not state facts sufficient to charge a crime against the laws of the state of Nebraska, and he now assigns the overruling of the motion as one of his principal grounds of error. Section...