State v. Allen

• Decision Date: 07 March 1900
• Citation: 35 S.E. 204,56 S.C. 495
• Parties: STATE v. ALLEN.
• Court: South Carolina Supreme Court

35 S.E. 204

56 S.C. 495

STATE v. ALLEN.

Supreme Court of South Carolina

March 7, 1900

Appeal from general sessions circuit court of Dorchester county; D A. Townsend, Judge.

C. J Allen was convicted of forgery, and he appeals. Affirmed.

Howell Gruber & Rumph and Griffin & Padgett, for appellant.

W. St Julien Jervey, for the State.

POPE J.

The defendant, C.J. Allen, was tried and convicted of the crime of forgery under an indictment containing two counts; one alleging, in the words of the statute, the forgery of a certain writing and instrument of writing, and the other alleging the uttering of said forged writing. After sentence, he has appealed from such judgment. While his exceptions, as printed, number 22, he has reduced that number, by abandoning exceptions 6, 7, 8, and 9, and also abandoning exceptions 14 and 15 to 16, and these need not be set out as presented but may be grouped under the following heads, which we will consider in their order:

1. It was error in the circuit judge in refusing to quash the indictment because the word "feloniously" does not there appear. This court has quite recently, in the case of State v. Bullock, 54 S.C. 300, 32 S.E. 424, considered our statutes relating to this crime, and so, therefore, we will not reproduce much there said. In brief, we may state that originally at the common law the crime was only a misdemeanor, but in the year 1801 it was advanced in this state to the dignity of a "felony", with the punishment of death attached to it. In the year 1845 the legislature changed the punishment from death to fine and imprisonment. In the case of State v. Rowe, 8 Rich. Law, 17, the supreme court held that, notwithstanding the act of 1845, reducing the punishment, forgery was still a felony under the act passed in the year 1801, though from this judgment Judge Wardlaw filed a vigorous dissenting opinion, based upon the thought that if felony, with us, does not mean a crime punishable by death after the first or the second conviction, he was at a loss to know what it did mean. So that, unquestionably, under our decisions, forgery was a felony. This idea is supported by the case of McConnell v. Kennedy, 29 S.C. 180, 7 S.E. 76, where it was stated, in an action to recover damages for false imprisonment, that the plaintiff, McConnell, had been arrested by the defendant, Kennedy, under a warrant supported by an affidavit wherein it was set forth "that one J. Q. McConnell did, on the 15th day of November, A. D. 1885, feloniously, and with the intention of fraud, make false entries on his cash book (he being employed by W. H. Kennedy as clerk), to the great injury and injustice of defendant," because this court held that, by the use of the language just quoted from the affidavit, although the crime of forgery eo nomine was not so embraced, yet that the said crime of forgery is set forth, more in accordance with out statute defining such crime than if there had been a bald charge of forgery eo nomine in the affidavit. We do not regard our recent case of State v. Bullock, 32 S.E. 424, as an authority for the position that indictments for forgery in this state need no longer contain the word "feloniously," for that question was not made in that case. But it seems to us that the act of the legislature of the year 1887 plays a most important part in settling this question. The act is found in the nineteenth volume of the Statutes of this state, at page 829. Its title is "An act to regulate criminal practice in the courts of general sessions in the state." Its first section, after the use of the enacting words, is as follows: "That every indictment shall be deemed and adjudged sufficient and good in law which, in addition to allegations as to time and place, as now required by law, charge the crime substantially in the language of the common law or of the statute prohibiting the same, or so plainly that the nature of the offense charged may be easily understood; and if the offense be a statutory offense that the same may be alleged to be contrary to the statute in such case made and provided." By reference to the statutes of this state defining forgery and the uttering of a forged instrument, it will be seen that the word "feloniously" does not appear on the definition of this crime. But the indictment strictly, in both of its counts, follows the language of our statute defining forgery and the uttering of forged instruments of writing, and the indictment concludes against "the statute in such case made and provided." We must hold, therefore, that the circuit judge did not err, as here alleged.

2. "In a trial for forging and uttering a forged instrument, is it competent for the state to introduce in evidence other instruments of writing, wholly unconnected with the transaction for which the defendant is being tried in point of time and otherwise, and introduce testimony tending to show that such instruments were forged and uttered by the defendant?" The facts out of which this question grew are about as follows: C.J. Allen is alleged to have forged the teacher's certificate, in which J. W. Hyer is named as the payee, whose certificate was certified to as correct by Lewis F. Le Bleux and John Stoll, as trustees of school district No. 16, on January 1, 1898, and to have collected from the county treasurer of Dorchester county, in this state, the sum of $30 in the name of J. W. Hyer, as said payee, by his own hand, signed by himself, the said C.J Allen, on the 4th day of January, 1898. Testimony was introduced by the state tending to show that the name of the payee, J. W. Hyer, was a forgery; that the names of Lewis F. Le Bleux and John Stoll as trustees of school district No. 16, who, it was set out in said certificate, had certified that $30 were due J. W. Hyer, were forged; and that the sum of $30, called for by said certificate as payable by the county treasurer of Dorchester county to the order of J. W. Hyer, was actually paid by the county treasurer of Dorchester county to the defendant, C.J. Allen, on the surrender by said C.J. Allen of the certificate held in his hands to said county treasurer of Dorchester County, and that said payment was so made by said county treasurer from the funds in his hands collected for Dorchester county, but after the same had been apportioned to school district No. 16 of said Dorchester county; and testimony was introduced tending to show that C.J. Allen had forged the names of said parties to the said certificate. It was necessary that the state should show in this case that C.J. Allen had forged or uttered this pay certificate with the intent to defraud Dorchester county, for such is the allegations of the indictment. This is an essential in all prosecutions against persons charged with forgery or uttering forged instruments, namely, that it shall be proved to the satisfaction of the jury that the same was done with the intention to defraud some particular person, natural or artificial. State v. Washington, 1 Bay, 120; State v. Bullock, supra. But how is this intention of the accused to be made manifest? Clearly, it must be done by his words or acts. That this is true is sustained by text writers and by our decisions. For example, Mr. Wharton, in the first volume of his work on Criminal Law, at section 715, says: "As has been elsewhere shown (Whart. Cr. Ev. § 39), if a party is charged with knowingly making, holding, or passing forged instruments, and the fact of his possession of the forged instruments is shown, but his knowledge of their character is disputed, it is admissible to prove that about the same time he held or uttered similar forged instruments to an extent which makes it improbable that he was ignorant of the forgery. Nor, as it is now ruled, does it exclude such evidence if the offense then introduced had been the subject of another indictment, nor that it occurred subsequently to that under trial, if the two appear to be part of a common system." Now, apply this law to the circumstances of the case at bar. The defendant, C.J. Allen, was the superintendent of education for the county of Dorchester, with a seal of office, and the certificates marked "B," "C," "D," and "E" were certificates purporting to be issued by the school trustees in certain of the school districts of Dorchester County, and had impressed upon each the seal of the defendant as superintendent of education for Dorchester county, and each was collected by said C.J. Allen from the county treasurer of Dorchester county; and said certificates bore date, respectively, the 7th...