Russell v. State

• Decision Date: 06 March 1906
• Citation: 51 Fla. 124,40 So. 625
• Parties: RUSSELL v. STATE.
• Court: Florida Supreme Court

40 So. 625

51 Fla. 124

RUSSELL v. STATE.

Florida Supreme Court, Division B.

March 6, 1906

Error to Circuit Court, Jackson County; Francis B. Carter, Judge.

John Russell, alias Humpie, was convicted of forgery, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

There are two kinds of orders for the payment of money or the delivery of goods which may be the subjects of forgery, viz those which are such on their face, and those which may be shown to be such by averment and proof. If on the face of the writing there is all that belongs to an order, the law regards it as such, though in fact the drawer had no funds and the drawee was under no obligation to respond. The question whether or not particular words bring a case within this branch of the definition may be nice and delicate. The tests are that looking simply at the writing there must appear on its face to be a drawer having a disposing power over the fund or goods, a person under obligation to obey and one to whom delivery or payment is to be made sufficiently described to exclude uncertainties of meaning. If the latter is not mentioned by name in the writing, or is imperfectly described, these uncertainties may be made certain by averment and proof.

Where a party is charged with forging or uttering an alleged forged writing which is in these words, viz., 'Mr. Crutch, let Humpie have three dollars for me,' the indictment should by proper averments explain who was meant by 'Mr. Crutch,' as well as who was meant by 'Humpie,' and these explanations should be followed up by proof at the trial.

COUNSEL Edwin R. Blow, for plaintiff in error.

OPINION

HOCKER J.

On the 15th of November, 1905, the plaintiff in error, hereinafter called the defendant, was indicted in the circuit court of Jackson county, and on the 22d of November, 1905, was convicted on the second count of the indictment, and sentenced to the state reform school during his minority, and, in the alternative, to the state prison under section 1, c. 5388, p. 64, Laws 1905. From this sentence and judgment a writ of error was sued out from this court. The second count of the indictment is as follows, viz.: 'And the grand jurors aforesaid, upon their oaths aforesaid, do further present that one John Russell, alias Humpie, at and in the county of Jackson, state of Florida, on the 17th day of June, A. D. 1905, at and in the said county of Jackson, and state of Florida, then and there being, did then and there have in his possession, custody, and control a certain false, forged, and counterfeited writing for the payment of money, which was in substance as follows: 'Mr. Crutch, let Humpie have three dollars for me, Jim Gaddy,' the said writing for the payment of money being lost, and a better description of the same being to the grand jurors unknown; that said John Russell, alias Humpie, then and there well knew said writing for the payment of money was forged, and then and there knowing same was forged and counterfeited, did then and there in said state and county utter and publish same as true by presenting same for payment to one J. L. Crutchfield, with intent to injure and defraud the said Jim Gaddy and the said J. L. Crutchfield, against the form of the statute in such case made and provided,' and containing the ordinary conclusion.

A motion to quash the indictment was made, containing, among others, the following grounds:

'(1) Said indictment is vague, indefinite, and insufficient, and charged no offense against the laws of the state of Florida. * * *

'(4) Because said indictment does not allege extrinsic facts sufficient to impose upon J. L. Crutchfield, the party to whom said paper writing is alleged to have been presented for payment, authority to pay an instrument, directed for payment to Mr. Crutch.'

This motion was denied and the defendant excepted to the ruling. This ruling is assigned as error here.

We have examined a large number of authorities treating of the proper method to be pursued by a pleader in framing an indictment for the forgery of a writing for the payment of money.

In the case of Smith v. State, 29 Fla. 408, text 425, 10 So. 894, this court has said: 'The authorities hold that where a party is charged with forging a check, promissory note, or order for the payment of money, it is sufficient to allege in the indictment that he falsely made, forged, and counterfeited the writing with intent to defraud some person, setting out the instrument in haec verba, with the names of the makers, indorsers, and payees on it. By pursuing this...