Shannon v. State

• Decision Date: 29 January 1887
• Citation: 109 Ind. 407,10 N.E. 87
• Parties: Shannon v. State.
• Court: Indiana Supreme Court

109 Ind. 407

10 N.E. 87

Shannon

v.State.

Supreme Court of Indiana.

January 29, 1887.

Appeal from circuit court, Fountain county.

Indictment for forgery.

Nebeker & Dochterman, for appellant. H. H. Conley, for the State

HOWK, J.

In this case the indictment charged “that Charles Shannon, on the fourth day of September, 1886, at and in the county of Fountain and state of Indiana, did then and there unlawfully, falsely, feloniously, and fraudulently utter, publish, and pass to one Thomas Hemphill, as true and genuine, a certain false, forged, and counterfeit order, purporting to have been made and executed by one Theodore Points, for the payment and delivery of property, to-wit, one dress pattern, to the said Charles Shannon, he, the said Charles Shannon, then and there knowing that said order was false and forged, which said false, forged, and counterfeit order is as follows, to-wit:

“‘September 4, 1886.

Mr. T. Hemphill: Please let Charles Shannon have one dress pattern, and oblige, Theodore Points.'

-That the words and letters ‘Mr. T. Hemphill,’ in said false, forged, and counterfeit order aforesaid, then and there mean, and were by him, the said Charles Shannon aforesaid, meant and intended to mean as follows, to-wit, ‘Mr. Thomas Hemphill;’ that he, the said Charles Shannon, did utter, publish, and pass said false, forged, and counterfeit order as aforesaid, with intent then and there and thereby to feloniously and fraudulently prejudice, damage, and defraud the said Thomas Hemphill, contrary to the form of the statute,” etc.

Appellant's motion to quash the indictment was overruled by the court; and upon his arraignment he answered in two paragraphs, as follows: (1) A plea that he was not guilty as charged in the indictment; and (2) he averred that, at the time of the alleged uttering and passing of said forged and counterfeit order or instrument set out in the indictment, he was a person of unsound mind. The cause was tried by a jury, and a verdict was returned finding appellant guilty, as charged, and assessing his punishment at confinement in the state's prison for the period of five years, and a fine in the sum of ten dollars. Over appellant's motion for a new trial, the court rendered judgment against him upon and in accordance with the verdict. In this court, errors are properly assigned by appellant which call in question the overruling(1) of his motion to quash the indictment; and (2) of his motion for a new trial; and these errors we will consider in their order, and decide the several questions thereby presented.

The motion to quash the indictment was in writing, and it assigned two grounds of objection to the sufficiency of the indictment, namely: (1) That the facts stated therein did not constitute a public offense; and (2) that the indictment did not state the offense with sufficient certainty. These are two of the four statutory causes, for either of which causes, when apparent upon the face of the indictment, the defendant may move to quash. Section 1759, Rev. St. 1881. Appellant's counsel earnestly insist that the indictment herein was not good, and the motion to quash it ought to have been sustained for two reasons, namely: “ First. The instrument set out is not such an ‘instrument of writing’ of which forgery, under our statute, can be predicated, and, as a necessary sequence, of which a charge of uttering or passing as forged cannot be predicated. Second. If such an instrument could be made the subject of a charge of forgery, or the subject of a charge of uttering a forged instrument, it could only be done by averment of extrinsic facts, showing the fraudulent tendency of the instrument in view of the facts connected with its forgery or passing.”

We will consider these two reasons, urged against the sufficiency of the indictment herein, in the order of their statement, and of their presentation and discussion here by appellant's learned counsel. In the indictment under consideration, the offense charged, or intended to be charged, against the appellant is defined, and its punishment prescribed, in section 2206, Rev. St. 1881. In this section it is thus provided: “Whoever falsely makes, or assists to...