Santolini v. State
| Decision Date | 19 November 1895 |
| Citation | 42 P. 746,6 Wyo. 110 |
| Parties | SANTOLINI v. STATE |
| Court | Wyoming Supreme Court |
Information filed in District Court September 24, 1894.
ERROR to the District Court for the County of Sweetwater, HON JESSE KNIGHT, Judge.
The plaintiff in error was informed against under Section 924 of the Rev. Stat., 1887. The charging part of the information was as follows: "That Felice Santolini * * * on the thirteenth day of September, A. D. 1894, at and in the county aforesaid did feloniously pass as true and genuine to John Slaviero a certain forged bank check, purporting to be the check of G. W. Edwards, payable to the order of William Colbers for the sum of forty-five dollars, he, the said Felice Santolini at the time he passed said forged check well knowing said check to be forged with the intent to defraud the said John Slaviero, etc."
To the information the defendant interposed a demurrer on the ground "That the facts stated in said information do not constitute an offense punishable by the laws of this State." The court overruled the demurrer, to which ruling the defendant excepted.
Upon the trial of the cause, the court over the objection of the defendant admitted the check in evidence, to which the defendant excepted.
The court over the objection of the defendant admitted in evidence the testimony of the witness G. W. Edwards, as to the indorsements on check to which the defendant excepted. The defendant moved to strike out the testimony of Edwards "For the reason that it is not shown that the check offered and shown him has his name signed to it, and it is not signed, G. W. Edwards." The court overruled the motion to strike out and the defendant excepted. It appeared by the evidence that on the 13th day of September, 1894, the accused met in Rock Springs a man by the name of John Slaviero, and obtained from him $ 16 and a promise of the balance of a forty-five dollar check, by passing to said Slaviero a check for $ 45, representing it to be the check of one G. W. Edwards, a man well known in that community, and whose check was known to be good. Upon production of the check at the trial it appears that the signature of the supposed maker was "G. W. Ewareeds." The other facts are stated in the opinion.
The jury returned a verdict of guilty against the defendant. The defendant filed his motion for a new trial, alleging as grounds:
1. The verdict is not sustained by sufficient evidence because there is no evidence that the check was a forgery and that the defendant knowingly passed the same. 2. The court erred in admitting the testimony of the witness, G. W. Edwards, as to indorsements on the back of the check. 3. The court erred in admitting the check in evidence. 4. The court erred in refusing to strike out the testimony of the witness G. W Edwards.
The court overruled the motion for a new trial, to which ruling the defendant excepted. The defendant filed his motion in arrest of judgment, alleging the same grounds as in the demurrer, and the court overruled the same, to which ruling the defendant excepted.
Affirmed.
Mail & Chiles, for plaintiff in error.
A bank check is a negotiable instrument, and as such, if payable to order, is transferable on the written order of the payee. (Laws 1888, p. 146.) Any paper to be the subject of forgery must be of some apparent legal efficacy. And the same rule is true of the uttering or passing of a forgery. (Clark's Cr. L., 297; 2 Bish. Cr. Proc., 3d Ed., 400; 2 Bish. Cr. L., 6th Ed., 524, 533, 538, 341, 545; 1 Whart. Cr. L., 9th Ed., 739; Haslip v. State, 10 Neb. 590; Com v. Dallinger, 118 Mass. 439; Rembert v. State, 53 Ala. 467.) There is no evidence that the name signed to the check bore any such resemblance to the name of Edwards as to deceive any one. There is no evidence that the accused knew the check to be forged, and knowledge of the forgery is a material averment, and must be proved in order to sustain a conviction of the crime of passing a forged instrument.
The court erred in admitting the testimony of Edwards as to any indorsements on the back of the check. The variance between the information and proof as to the name signed to the check was fatal. .)
Benjamin F. Fowler, Attorney-General, for the State.
Uttering a forged instrument is a felony distinct from forgery. (People v. Rathbun, 21 Wend. 534.) Where the instrument, if uttered, would create an obligation against the party whose name is signed, the forgery is complete. (Dixon v. State (Tex.), 26 S.W. 501.) The supposed variance amounts to no more than a misspelling of the name. To constitute forgery, it is sufficient if there be a bare possibility of imposing on another with the forged instrument. Nor is it necessary that it be intelligently written. .) It is not necessary that there should be such a resemblance to the signature forged as to deceive a careful person. (State v. Ferguson, 35 La. Ann., 1042; State v. Ford, 38 id., 497; State v. Bennett, 19 id., 395; Gooden v. State, 55 Ala. 178; U. S. v. Turner, 7 Pet., 132; 2 Bish. Cr. Pro., 400; 1 Whart. Cr. Dig., 695, 473; State v. Gillette (Mo.), 26 S.W. 354; State v. Warren (Mo.), 19 S.W. 191; Parker v. People, 97 Ill. 32; Garmire v. State, 104 Ind. 444.) To utter and publish an instrument alleged to be forged, is to declare, directly or indirectly, by words or actions, that it is good.
Mail & Chiles, for plaintiff in error, in a reply brief cited the following additional authorities.
The plaintiff in error was convicted of the crime of forgery in the district court for Sweetwater County, and on October 12 1894, was sentenced thereunder to be imprisoned in the penitentiary for the term of four years. The uttering of forged paper knowing it to be forged with intent to defraud is denominated forgery by our statute, and is included in the statutory definition of the crime. The information, after laying the venue and alleging the time and place of the commission of the offense, charges that the defendant below "did feloniously pass, as true and genuine, a certain forged bank check purporting to be the check of G. W. Edwards, payable to the order of William Colbers, for the sum of forty-five dollars, he, the said Felice Santolini, at the time he passed said check, well knowing said check to be forged, with intent to defraud the said John Slaviero." A demurrer was filed to this information on the ground that the facts stated therein do not constitute an offense punishable by the laws of this State, and this demurrer was overruled. Forgery by our statute in general terms is the false making or altering of certain written instruments therein set out at length, including checks, drafts, bills of exchange, and promissory notes, with intent to damage or defraud some person, either natural or artificial, and also the uttering, publishing, or passing any of the said false instruments, knowing the same to be false, forged, or counterfeited, with the like intent to defraud. Rev. Stat., Sec. 924. Our criminal code is very liberal in its provisions relating to the construction of indictments, the rules of which apply by express statutory provisions to informations. An indictment or information is not invalidated by any defect or imperfection therein which does not tend to the prejudice of the substantial rights of the defendant, or by want of any allegation or averment of any matter not necessary to be proved, nor by any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime or person charged. Rev. Stat., Sec. 3244; Sec. 13, Ch. 59, Sess. Laws 1890-91; Sec. 13, Ch. 123, Sess. Laws 1895. "In any indictment (or information) for falsely making, altering, forging, printing, photographing, uttering, disposing of, or putting off any instrument, it shall be sufficient to set forth the purport and value thereof." Rev. Stat., Sec. 3247. Under the rules of the common law, indictments for forgery must contain the tenor of the instrument, that is, the instrument verbatim is required to be set forth, except where it has been destroyed by the defendant or is maintained in his possession, and perhaps in other cases where the instrument can not be produced and where there is no laches on the part of the prosecution, but in every case where the instrument is not set out in full, the reason for the omission is to be given. An exact copy is required under this rule in order that the court might be able to determine on the face of the indictment whether the instrument is one the false making of which can constitute forgery. Clark's Crim. Proc., 206; 2 Bish....
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Jenkins v. State
...of law unless a proper instruction containing a correct statement of the law is offered. (Starke v. State, 17 Wyo. 55; Santolini v. State, 6 Wyo. 110). Even the instruction requested contained a correct statement of the law it would not have been error to refuse it, for it contained nothing......
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... ... Harrison , 14 Cal.App ... 545, 112 P. 733, it was held that in view of the rule of idem ... sonans there was no variance between the names "William ... Strandberg" and "William Elmer Standberg" as ... would affect the validity of the judgment of conviction. The ... case of Santolini v. State , 6 Wyo. 110, 42 ... P. 746, 71 Am. St. Rep. 906, involved a conviction for ... uttering a forged bank check. The name signed to the check ... was "G. W. Ewareeds." The information charged the ... uttering of a check purporting to be that of "G. W ... Edwards." G. W. Edwards ... ...
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...§ 25 (1968); see Wyatt v. State, 257 Ala. 90, 57 So.2d 366 (1952); Norton v. State, 129 Wis. 659, 109 N.W. 531 (1906); Santolini v. State, 6 Wyo. 110, 42 P. 746 (1895). Our research reveals no Virginia case precisely on point. However, Gordon holds that the writing or alteration does not ha......
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