State v. Burtenshaw

• Decision Date: 23 February 1914
• Citation: 138 P. 1105,25 Idaho 607
• Parties: STATE, Appellant, v. L. L. BURTENSHAW, Respondent
• Court: Idaho Supreme Court

138 P. 1105

25 Idaho 607

STATE, Appellant, v. L. L. BURTENSHAW, Respondent

Supreme Court of Idaho

February 23, 1914

FORGERY-INSUFFICIENCY OF INFORMATION FOR-VERITY OF SIGNATURE TO INSTRUMENT.

1. Under sec. 7028, Rev. Codes, an affidavit or information before a probate judge charging insanity may be a subject of forgery.

2. An information does not charge the crime of forgery which does not disclose whose name is alleged to be forged, the name or identity of the person whom it was intended by the alleged forged instrument to defraud or injure, or the manner in which the injury, fraud or wrong was intended to be accomplished.

3. Where one swears to an instrument before a proper officer, it is immaterial whether he sign such instrument with his own hand, or authorize someone else to sign it, or approve and adopt the unauthorized signing of his name by someone else. Where the jurat is regular in form, verity will be imputed to such signature.

4. Under the provisions of subd. 5, sec. 7950, Rev. Codes, it is the duty of the probate judge and the district judge of the judicial district to take judicial notice of the official position of the prosecuting officer of the county, and to know officially the person holding that office.

APPEAL from the District Court of the Seventh Judicial District for Adams County. Hon. Edward A. Walters of the Fourth Judicial District, presiding.

Prosecution for the crime of forgery. Demurrer to the information sustained by the trial court and the state appeals. Affirmed.

Affirmed.

J. H Peterson, Attorney General, J. J. Guheen and T. C. Coffin Assistants, for Appellant.

Forgery can be committed with respect to any instrument which, if genuine, might operate to prejudice or injure another. (Sec 7028, Rev. Codes; sec. 470, Penal Code of California; People v. Bendit, 111 Cal. 274, 280, 52 Am. St. 186, 43 P. 901, 31 L. R. A. 831, 834; People v. Tomlinson, 35 Cal. 503; Ex parte Finley, 66 Cal. 262, 5 P. 222; Dudley's Case, 2 Sid. 71, 82 Eng. Reprint, 1263; 2 Wharton, Crim. Law, 11th ed., pp. 1085-1132; People v. Munroe, 100 Cal. 664, 38 Am. St. 323, 35 P. 326, 24 L. R. A. 34; Hendricks v. State, 26 Tex. App. 176, 8 Am. St. 466, and note, 9 S.W. 555, 557; United States v. Long, 30 F. 678; Shannon v. State, 109 Ind. 407, 10 N.E. 87.)

The test in each case is whether or not the instrument, if genuine, might have the effect to prejudice another. (State v. Boasso, 38 La. Ann. 202; Arnold v. Cost, 3 Gill & J. (Md.) 219, 22 Am. Dec. 302; Shannon v. State, supra.)

Sec. 7028, by enumerating certain classes of instruments as being subjects of forgery, does not exclude all others. (United States v. Lawrence, 13 Blatchf. 211, 26 F. Cas. No. 15,572.)

Instruments void on their face are not subject to forgery because they have not the capacity of effecting fraud. (People v. Heed, 1 Idaho 531; Brazil v. State, 117 Ga. 32, 43 S.E. 460; People v. Munroe, supra.)

If an instrument is made with intent to prejudice, even though before it can have effect other steps must be taken, or other proceedings had upon the basis of it, it is a subject of forgery, whether or not such steps have ever been taken or proceedings had. (Commonwealth v. Costello, 120 Mass. 358; Garmire v. State, 104 Ind. 444, 4 N.E. 54; Shannon v. State, supra.)

It is not necessary that the information state what particular person it was intended to defraud. It is sufficient if the charge be made in the language of the statute. (State v. Swensen, 13 Idaho 1, 81 P. 379; Morearty v. State, 46 Neb. 652, 65 N.W. 784; Arnold v. Cost, supra; 9 Ency. Pl. & Pr. 582.)

B. S. Varian, E. R. Coulter, Lot L. Feltham, Freehafer & Stinson, and Hawley, Puckett & Hawley, for Respondent.

The evident purpose of sec. 7028 is to punish a person intentionally guilty of forging or counterfeiting any document that might entail a pecuniary loss upon another. The only chance of fastening the crime charged upon the defendant is in the clause: "Or counterfeits or forges the seal or handwriting of another." The only evil effect of the making of the alleged forged document was to bring the parties named therein, Minnie Schroff and Walter Schroff, before the probate court upon charges of insanity. It is stretching the intent and meaning of the statute beyond reason to claim that these people were defrauded by this. (People v. Heed, 1 Idaho 531.)

The statute expressly provides that the false making, forging or counterfeiting must be done with intent to defraud another. The mere making of a document of any kind which cannot be used to defraud another is not forgery. The signing of another person's name without authorization is not forgery, per se. For meaning of the term "defraud," see Century Dictionary and Ency.; 4 Am. & Eng. Ency. of Law, 180; People v. Wiman, 148 N.Y. 29, 42 N.E. 408; Burdick v. Post, 12 Barb. (N. Y.) 168; Deseret National Bank v. Kidman, 25 Utah 379, 95 Am. St. 856, 71 P. 873; State v. Rickey, 9 N.J.L. 293.

It is intended by the laws relating to forgery to protect property rights, or rights of persons equivalent to property rights. (People v. Galloway, 17 Wend. (N. Y.) 540; People v. Tomlinson, 35 Cal. 503; May's Crim. Law, sec. 330.)

An instrument void upon its face because of legal requisites as to its validity is not the subject of an indictment for forgery because of its incapacity to effect fraud. (Hobbs v. State, 75 Ala. 1; State v. Pierce, 8 Iowa 231; Roode v. State, 5 Neb. 174, 25 Am. Rep. 475; Anderson v. State, 20 Tex. App. 595; Costley v. State, 14 Tex. App. 156; Raymond v. People, 2 Colo. App. 329, 30 P. 504; Terry v. Commonwealth, 87 Va. 672, 13 S.E. 104.)

A written instrument to be the subject of forgery must be valid if genuine for the purpose intended. If void or invalid on its face, and it cannot be made good by averment, the crime of forgery cannot be predicated on it. (Rembert v. State, 53 Ala. 467, 25 Am. Rep. 639; People v. Harrison, 8 Barb. (N. Y.) 560; Ex parte Farrel, 36 Mont. 254, 92 P. 785; Underhill, Crim. Ev., 2d ed., sec. 430; 19 Cyc. 1379.)

If it does not show upon its face that someone might be defrauded, extrinsic facts should and must be alleged to show its capacity to defraud. This has not been done here, and for that reason alone the information cannot be upheld. (19 Cyc. 1405, and authorities cited.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

The defendant, who is respondent here, was charged by the information of the prosecuting attorney of Adams county with the crime of forgery. The trial court sustained a demurrer to the information and the state has appealed. The charging part of the information is as follows:

"That at Adams county, State of Idaho, on or about the 9th day of November, 1912, the said defendant, L. L. Burtenshaw, who, then and there being and being then and there a licensed attorney-at-law under the laws of the state of Idaho, and following the business of an attorney and counselor at law as a principal and usual calling, did, then and there, unlawfully, feloniously and with intent to defraud another, falsely make and forge a certain information charging insanity against Walter Schroff and Minnie Schroff; and that the said defendant did then and there falsely, fraudulently, knowingly, feloniously and with intent to defraud, prejudice and damage another, utter said information as true and genuine, knowing the same to be false and forged, by filing it in the probate court of Adams county, state of Idaho, the said information being in the letters and figures following, to wit:

"'In the Probate Court of the County of Adams, State of Idaho.

"'State of Idaho,

County of Adams,--ss.

"'Nels Hansen being first duly sworn deposes and says, that affiant is acquainted with Walter Schroff and Minnie Schroff whom affiant believes to be insane; that said persons are so far disordered in mind as to endanger health, persons or property.

"'Wherefore, complainant prays that the said persons may be examined by this court, pursuant to the statute in such case made and provided, concerning the charge of insanity, and ascertain the fact of sanity or insanity; and if the said persons or either of them shall be found on examination to be insane, that he may be committed to the insane asylum.

"'NELS HANSEN.

"'Subscribed and sworn to before me this 19th day of November, 1912.

"'G. F. GREGG,

"'Probate Judge.'

"All of which is contrary to the form, force and effect of the statute in such cases made and provided, and against the peace, power and dignity of the state of Idaho."

The information in this case was presented under the provisions of sec. 7028 of the Revised Codes, defining forgery. If the charge preferred here falls within the definition of forgery as embodied in sec. 7028, it must necessarily come within that part of the section which reads as follows:

"Every person who, with intent to defraud another, falsely makes, alters, forges or counterfeits, any charter, letters patent, deed, . . . . or counterfeits or forges the seal or handwriting of another, . . . . or who, with intent to defraud, alters, corrupts or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court, or the return of any officer to any process of any court, is guilty of forgery."

For the purposes of our consideration of the present case, we may well concede that the instrument, which it is charged was forged, might properly be the subject of forgery, within the purview and meaning of the statute. Indeed, we are inclined at this time to think that would be a liberal and fair construction of the statute. (People v Bendit, 111 Cal. 274, 52 Am. St. 186, 43 P. 901, 31 L. R. A....