People v. Tilden

• Citation: 242 Ill. 536,90 N.E. 218
• Parties: PEOPLE v. TILDEN et al.
• Decision Date: 22 December 1909
• Court: Supreme Court of Illinois

242 Ill. 536

90 N.E. 218

PEOPLE

v.TILDEN et al.

Supreme Court of Illinois.

Dec. 22, 1909.

Error to Criminal Court, Cook County; Arthur H. Chetlain, Judge.

William D. Tilden and another were convicted of making, uttering and publishing a false and fictitious note, knowing the same to be forged, and they bring error. Reversed.Fresenthal, Foreman & Beckwith and William S. Forrest, for plaintiffs in error.

W. H. Stead, Atty. Gen., and John E. W. Wayman, State's Atty. (Zack Hofheimer, of counsel), for the People.

DUNN, J.

The plaintiffs in error, William D. Tilden and Chauncey L. Graham, were convicted in the criminal court of Cook county upon an indictment consisting of one count, which charged that on June 18, 1906, they ‘unlawfully, feloniously, fraudulently, and wickedly did, with the intent to defraud a certain corporation, to wit, Milwaukee Avenue State Bank, make, pass, utter, and publish a certain false and fictitious note, said note then and there being an instrument of writing for the payment of money and purporting to be the note of Gabriel Artz, which said note is in words and figures, in substance, as follows, to wit: ‘$5,000. Chicago, June 18, 1906. Three months after date I promise to pay to the order of myself five thousand dollars at the Milwaukee Avenue State Bank, value received, with interest at the rate of six per cent. per annum after date. Gabriel Artz. No. _____ Due _____ U. S. Bond.’ On the back of which said note appears the following, ‘Gabriel Artz,’ when in fact and in truth, at the time the said false and fictitious note was so as aforesaid made, passed, uttered, and published, there was no such individual in existence, they, the said William D. Tilden and said Chauncey L. Graham, then and there well knowing the said note to be fictitious,' etc. After verdict finding both the defendants guilty, they entered a motion in arrest of judgment, and now insist that it was error to deny this motion because the indictment does not profess to set forth a literal copy of the instrument alleged to be forged and is for that reason bad.

That every indictment for forgery or other crime, the essence of which consists in the publication or fabrication of a written instrument, must, on its face, profess to set out the instrument according to its tenor, except where the instrument is in the possession of the accused. Destroyed, or for some other reason not accessible to the grand jury, in which case the excuse for not setting it out must be distinctly averred, is a rule of criminal pleading sustained by textbooks and decided cases almost without exception. The word ‘tenor’ imports an exact copy; that the instrument is set forth in the very words and figures. Griffin v. State, 14 Ohio St. 55;Commonwealth v. Wright, 1 Cush. (Mass.) 46; State v. Atkins, 5 Blackf. (Ind.) 458; Wright v. Clements, 3 Barn. & Ald. 503; 27 Am. & Eng. Ency. of Law (2d Ed.) 46. It is sufficient, however, if the indictment uses any form of expression indicating that the copy set forth is exact, as, ‘in the words and figures following,’ ‘as follows,’ ‘that is to say.’ The indictment here purports to give the words and figures of the instrument in substance only, and not exactly. In Chitty on Crininal Law, vol. 3, p. 1040, it is said: ‘Every indictment for forgery must set forth the instrument charged as fictitious in words and figures, in order that the court may be able to judge from the record whether it is a document in respect to which forgery can be committed. * * * The recital of the instrument is usually prefaced by the words ‘to the tenor following,’ which imports an exact copy; but the words ‘as follows' are sufficient. They intend the same and profess the same exactness.’ ‘At common law written instruments, wherever they form a part of the gist of the offense charged, must be set out verbatim. Thus, in the case of forgery the instrument forged must before St. 2 & 3 Wm. IV, c. 127, § 3 (rep.), have been set out in the indictment in words and figures.’ Archbold on Crim. Pl., Pr. & Ev. (23d Ed.) 74. In Wharton on Criminal Pleading and Practice the rule is laid down that, where the words of a document are essential ingredients of the offense, the document should be set out in words and figures. Sections 167-170. And the same author, in American Criminal Law, vol. 2, § 1468, says: ‘The indictment should not only set forth the tenor of the bill or note forged, but should profess to do so. The instrument charged as fictitious must be set out in words and figures, so that the court may be able to judge from the record whether it be an instrument in respect of which forgery can be committed.’ The same rule is announced in Bishop on New Criminal Procedure, vol. 2, § 403.

There can exist no doubt that it is necessary to the sufficiency of an indictment for forgery at common law that it should set forth the instrument forged with strict verbal accuracy. This rule has been announced and uniformly followed by the courts of England and the various states of this country, and the federal courts, for a great many years. In 1698 it was announced by the King's Bench in the case of Rex v. Beares, 1 Ld. Raym. 464. It was again decided in Rex v. Gibbs, 1 East. 173; Mason's Case, Id. 180n; Loyd's Case, Id.; Gilchrist's Case, 2 Leach's C. C. 657; Rex v. Powell, 1 Leach's C. C. 77. It continued to be the requirement in indictments for forgery until a statute (St. 2 & 3 Wm. IV, c. 123, § 3, afterwards replaced by St. 24 & 25 Vict. c. 98, § 42) made it unnecessary to set forth a copy of the forged instrument. Regina v. Davies, 9 C. & P. 427; Regina v. Sharpe, 8 C. & P. 436; 2 Russell on Crimes, 796. The same rule has been declared by a large number of decisions of the courts of this country: West v. State, 45 Fla. 118, 33 South. 854; State v. Callendine, 8 Clarke (Iowa) 288; State v. Atkins, 5 Blackf. (Ind.) 458; Hill v. Commonwealth (Ky.) 33 S. W. 823;Commonwealth v. Houghton, 8 Mass. 110;Commonwealth v. Wright, 1 Cush. (Mass.) 46;Commonwealth v. Tarbox, 1 Cush. (Mass.) 66;State v. Bonney, 34 Me. 383;State v. Witham, 47 Me. 165; State v. Gustin, 5 N. J. Law, 744; State v. Potts, 9 N. J. Law, 26, 17 Am. Dec. 449;State v. Twitty, 9 N. C. 248;State v. Dourdon, 13 N. C. 443;Dana v. State, 2 Ohio St. 91;McMillen v. State, 5 Ohio, 269;Commonwealth v. Sweney, 10 Serg. & R. (Pa.) 173;State v. Jones, 1 McMul. (S. C.) 236, 36 Am. Dec. 257;State v. Brownlow, 7 Humph. (Tenn.) 63;Croxdale v. State, 1 Head (Tenn.) 139;Thomas v. State, 18 Tex. App. 213; Smith v. State, Id. 399; Edgerton v. State (Tex. Cr. App.) 70 S. W. 90; State v. Parker, 1 D. Chip. (Vt.) 298, 11 Am. Dec. 735; State v. Morton, 27 Vt. 310, 65 Am. Dec. 201;United States v. Fisler, 4 Biss. 59, Fed. Cas. No. 15,105; United States v. Britton, 2 Mason, 464, Fed. Cas. No. 14,650; United States v. Smith, 2 Cranch, C. C. 111, Fed. Cas. No. 16,326. In those cases in which it has not been required that the indictment shall set forth a copy of the instrument forged according to its tenor, the decision has been based upon a statute making it unnecessary. Bostick v. State, 34 Ala. 266;McGuire v. State, 37 Ala. 161;Jones v. State, 50 Ala. 161;State v. Johnson, 26 Iowa, 407, 96 Am. Dec. 158;State v. Pons, 28 La. Ann. 43;State v. Nelson, 28 La. Ann. 46;Commonwealth v. Hall, 97 Mass. 570;Commonwealth v. McKean, 98 Mass. 9;State v. Clinton, 67 Mo. 380, 29 Am. Rep. 506;State v. Fay, 65 Mo. 490;Chidester v. State, 25 Ohio St. 433;State v. Childers, 32 Or. 119, 49 Pac. 801;Coleman v. Commonwealth, 25 Grat. (Va.) 865, 23 Am. Rep. 711;State v. Henderson, 29 W. Va. 147, 1 S. E. 225;State v. Wright, 9 Wash. 96, 37 Pac. 313;State v. Hill, 30 Wis. 416;Santolini v. State, 6 Wyo. 110, 42 Pac. 746,71 Am. St. Rep. 906.

It is insisted on behalf of the people that the instrument is set forth in the indictment in haec verba, and that this is sufficient, and the cases of Langdale v. People, 100 Ill. 263, and Trask v. People, 151 Ill. 523, 38 N. E. 248, are cited. In the first place, it may be said that the indictment does not profess to set out the instrument in haec verba, but only in substance. Further, the cases cited do not decide any question whatever as to the indictment. The only question considered with reference to the description of the instrument set out in the indictment in either case is one of variance. In the Langdale Case the indictment professed to set out an exact copy of the fictitious instrument, and in introducing the discussion of the question of a variance in the instrument produced this language appears in the opinion: ‘While it was not at all necessary to set out the order in haec verba in the indictment, yet when the pleader undertook to do so, and averred that it was in the words and figures as follows, he was bound to set out each and every part of the written instrument which constituted any part of the written contract.’ The first clause above quoted, ‘while it was not at all necessary to set out the order in haec verba in the indictment,’ had nothing...