People v. Van Alstine

• Decision Date: 03 June 1885
• Citation: 23 N.W. 594,57 Mich. 69
• Court: Michigan Supreme Court
• Parties: PEOPLE v. VAN ALSTINE.

23 N.W. 594

57 Mich. 69

PEOPLE v. VAN ALSTINE.

Supreme Court of Michigan

June 3, 1885

Exceptions from Hillsdale.

Moses Taggart, for the People.

E.L Koon and Geo. A. Knickerbocker, for defendant.

CHAMPLIN, J.

The respondent, Charles Van Alstine, was convicted in the circuit court from the county of Hillsdale upon an information charging him, jointly with Charles A. Parker and Edward C Cleveland, with the forging and uttering of a deed of 40 acres of land, lying in the township of Somerset, in Hillsdale county. The deed purported to be executed by Eleanor Van Alstine, in the presence of Parker and Cleveland and acknowledged by the grantor before Parker, as a notary public of Lenawee county. It bears date the ninth day of May 1876. The legal title to the land at the date of the deed was in Eleanor Pelton. It was claimed by the prosecution that she was one and the same person with Eleanor Van Alstine. She had for several years lived with the respondent, Van Alstine, and the evidence showed that he treated her as his wife, and claimed her to be such; that she had united with him in the execution of a deed of land as Eleanor Van Alstine, although she was never married to him by any formal ceremony, and her estate was administered after her death, which occurred in August, 1876, as the estate of Eleanor Pelton. She left as heirs at law two sisters, a Mrs. Giddings and a Mrs. Wescott. She died testate, and her will was admitted to probate in Hillsdale county, an executor appointed, her estate appraised, and the ordinary steps taken to administer her estate. At the time the executor made his inventory, the title of record to the S.E. 1/4 of the N.W. 1/4 of section 26, township 5 S., range 1 W., being in the town of Somerset, county of Hillsdale, appeared to be in Eleanor Pelton, and he included it in his inventory as property belonging to the estate. Afterwards, and in 1876, the respondent, Van Alstine, placed upon record in the office of the register of deeds for Hillsdale county a quitclaim deed of said lands, bearing date May 9, 1876, and purporting to have been executed by Eleanor Van Alstine to him, in the presence of the other two respondents. It is claimed by the prosecution that this deed was forged by the respondent. The case comes here upon exceptions before judgment.

The information contains 10 counts. Counsel for respondent insists that the first nine are not sufficient upon which to convict the defendant, for the reason that they contain no allegations that Eleanor Van Alstine had any interest in the land. Forging was a misdemeanor at the common law. From the earliest times in the history of the criminal law of England statutes have been passed upon the subject. As early as 1413 a statute (1 Hen. V. c. 3) was enacted which recited that many persons had been deprived of their property by false deeds, wherefore it was enacted "that the party so grieved shall have his suit in that case, and recover his damages; and the party convict shall make fine and ransom at the king's pleasure." Again, the English statute of 5 Eliz. c. 14, � 2, prohibited the making or forging of any false deed, etc., "to the intent that the state of freehold or inheritance of any person in lands, etc., shall not be molested, troubled, defeated, recovered, or changed;" and the third section fixes a penalty for any person to forge or make any false charter, deed, or writing, to the intent that any person shall have or claim any estate or interest for term of years of, in, or to any lands. The forgery of deeds was made felony, without benefit of clergy, by 2 Geo. II. c. 25. The precedents framed under the English statutes, and especially those under the second section of 5 Eliz. c. 14, on account of the particular phraseology of the enactments, uniformly set out the title of the party whose estate in the land was intended to be molested. 2 Starkie, Crim.Law, 481; 2 Chit.Crim.Law, 1062. The necessity of doing so is apparent from the provisions of the law. It is an essential ingredient of the offense, and must therefore be stated.

But our statute is more broad and general in its terms. It provides that every person who shall falsely make, alter, forge, or counterfeit any deed with intent to injure or defraud any person shall be punished, etc., (How.St. � 9213;) and section 9226 provides that in any case where an intent to defraud is required to constitute the offense of forgery, or any other offense that may be prosecuted, it shall be sufficient to allege in the indictment an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded, and on the trial of such indictment it shall be deemed sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States, or any state, county, city, or township, or any body corporate, or any public officer in his official capacity, or any copartnership or member thereof, or any particular person. There is no statutory definition of forgery. At the common law it is defined to be the "making of a false document with intent to defraud;" and the offense may be said to be complete when any person falsely makes any of the writings enumerated in the statute "with intent to deceive in such a manner as to expose any person to loss or to the risk of loss."

There is such a marked difference between the English and our statutes upon the subject, that neither precedents nor decisions based upon the former can be of service or authority under the latter, which, as we have seen, does not limit the operation of the statute to persons having interests in the same or other lands; and to so limit it would seem to be in direct contravention of the statute,--would greatly narrow its operation, and defeat its most important objects. It is apparent, upon the most cursory consideration, that fraud by means of a false or forged deed may be perpetrated, not only upon the owner of the land, but upon strangers to the title who are induced to rely upon the genuineness of the forged deed to advance or loan money upon the faith of the legal validity of such instrument. It was long ago held that a person could be guilty of forgery in signing his own name to a deed of land which he had already conveyed, when he antedated the instrument for the purpose of defrauding. 2 Russ.Cr. pp. 322, 323. In this view of the statute it can neither be necessary nor advisable to set out in the information the title of the person intended to be defrauded, nor in what the forgery consisted. It is not necessary, for the reason that such facts are not essential ingredients of the offense. I do not consider it advisable as a matter of general practice to do so, because, if stated, the proof must correspond with the averment, or the defendant must be acquitted. 2 East, Crim.Law, 988.

It was said in People v. Marion, 28 Mich. 255, that it is proper to set out, in at least one count of the information, with particularity, in what the forgery consisted; but the public prosecutor is not obliged to do so, and when he does, it is done ex mera gratia to the accused. I do not think it necessary that the information should contain any averment that Eleanor Van Alstine had any interest in the land at the time it is claimed the forgery was committed. The gist of the offense is the intent to defraud. The validity of the objection depends entirely upon the effect and operation of the statute upon which it is founded, and it is usually sufficient if the information is so framed that the offense is described in the words of the statute, or according to its legal effect and operation. Where the instrument alleged to have been forged is one enumerated in the statute, and appears to be complete on its face, to be effectual, all that is necessary is to aver that the act was done with intent to defraud. But how or in what manner the party was to be defrauded, is no ingredient of the crime, but is mere matter of evidence, which all the authorities agree need not be set out in the information. West v. State, 22 N.J.Law, 212, Archb.Crim.Proc. 23, 194; 2 East, Crim.Law, p. 989, � 59; The King v. Powell, 2 W.Bl. 787; 1 Leach, 77; Rex v. Goate, 1 Ld.Raym. 737.

The land which this deed purported to convey had an actual potential existence, definitely described and located, and the deed on its face appeared to work some effect upon the property, and was complete in itself for that purpose. It did not require the aid of averments of extrinsic facts to render its deception complete. I do not think the distinction which counsel for respondent seeks to raise between executed and executory contracts exists. The test, whether the party can be guilty of a forgery, does not consist in determining whether the instrument forged, if genuine, would be of any force or effect. A draft, falsely made, is no less a forgery because the drawee has no funds, and is under no obligation to pay if the draft had been genuine. A deed falsely made by a grantor, after he had conveyed all interest in the land, is no less a forgery because, if genuine, it would convey no title. Forgery may be committed when the name forged is fictitious, and I can see no reason why it should be necessary to aver what interest the alleged grantor, whose name is forged, had in the land described in the deed. In some cases it would be immaterial, and in others mere matter of evidence, bearing upon the intent to defraud, as it is in this case.

The seventh and eighth counts were each objectionable on the ground of duplicity. Each charges the respondents jointly with the offense of forgery. The seventh charges them also with the offense of uttering the forged deed, while the eighth charges Van Alstine alone with uttering it. This is uniting...