State v. Childers

• Decision Date: 09 August 1897
• Citation: 49 P. 801,32 Or. 119
• Parties: STATE v. CHILDERS.
• Court: Oregon Supreme Court

49 P. 801

32 Or. 119

STATE v. CHILDERS.

Supreme Court of Oregon

August 9, 1897

Appeal from circuit court, Multnomah county; T.A. Stephens, Judge.

Ben Childers was convicted of forgery, and he appeals. Affirmed.

B.P. Welch, for appellant.

T.S. Potter, Dep.Dist.Atty., for the State.

MOORE C.J.

The defendant, Ben Childers, was indicted, tried, and convicted of the crime of knowingly uttering and publishing, as true and genuine, a forged indorsement of a county warrant of Multnomah county, with intent to injure and defraud one M.M Bloch; and, having been sentenced to imprisonment in the penitentiary for the term of six years, he appeals from the judgment thus rendered, assigning numerous errors, which will be considered. The indictment having set out a warrant of the tenor following: "No. 8,117. Portland, Oregon, July 2 1894. Treasurer of Multnomah County, Oregon: Pay to A Hallock, or order, thirty-one and 56/100 dollars and ______ cents, out of the road funds in your hands, not otherwise appropriated. Class 32 for road work. Desk No. 9. By order of the county court. T.C. Powell, Clerk of Multnomah County, by H.C. Smith, Deputy,"--there was introduced in evidence over the defendant's objection and exception, a county warrant of said county, issued for "road work, Dist. No. 9"; and it is contended that there was such a variance between the allegations of the indictment and the recital of the warrant as to render the latter inadmissible in evidence. The rules of the common law required the prosecuting officer to set out, if possible, in an indictment for forgery, the alleged fraudulent writing in haec verba, to enable the court, from an inspection of the pleading, to judge whether the instrument claimed to have been unlawfully uttered was one of which forgery might be committed. 2 Bish. New Cr.Proc. § 403; State v. Callendine, 8 Iowa, 288; Santolini v. State (Wyo.) 42 P. 746. The form prescribed for an indictment for forgery does not provide that the instrument, which is the subject thereof, shall be set out in haec verba (1 Hill's Ann.Laws Or. p. 1004); and in an action on an indictment, alleging the substance and legal effect only of a writing claimed to have been forged, it was held that a variance of two days in the dates stated in the pleading and as recited in the instrument was immaterial ( State v. Thompson, 28 Or. 296, 42 P. 1002). It would seem that, under our statute, the common-law rule has been abrogated; that it is now unnecessary to set out in the indictment the tenor of a written instrument alleged to have been forged; and that the substance or legal effect thereof is sufficient to enable the court to judge whether the writing is the subject of forgery, and to permit the defendant to make his defense. The state having elected to set out in the indictment the tenor of the instrument, the question is presented whether it is bound to prove the fact as alleged, thus rendering the order inadmissible in evidence. It is an elementary rule that, when a thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of the description must be proved; for they are all made essential to the identity, and hence a variance in the proof is usually fatal. 1 Greenl.Ev. § 65. "It may be observed," says this learned author at section 58, "that any allegation which narrows and limits that which is essential is necessarily descriptive. Thus, in contracts, libels in writing, and written instruments in general, every part operates by way of description of the whole. In these cases, therefore, allegations of names, sums, magnitude, dates, durations, terms, and the like, being essential to the identity of the writing set forth, must, in general, be precisely proved." Under the very strict rules announced by Prof. Greenleaf, the variance complained of may have been fatal, but we think the better doctrine is expressed by Earl, J., in Harris v. People, 64 N.Y. 148, in which he says: "The strictness of the ancient rule as to the variance between the proof and the indictment has been much relaxed in modern times. Variances are regarded as material, because they may mislead a prisoner in making his defense, and because they may expose him to the danger of being again put in jeopardy for the same offense." Applying this modern rule to the case at bar, we think the defendant could not have been misled in making his defense by this variance; and, further, the identity of the county warrant described in the indictment with the one offered in evidence is unquestionable; and, such being the case, the judgment rendered will afford a bar to another prosecution for the same offense. From an inspection of the indictment, the court could say, as a matter of law, that the writing imported an obligation to pay a given sum of money, and was therefore a subject of forgery; and, the amount therein specified not being involved in the recital that it was executed for road work either in Desk or Dist. No. 9, we deem the variance immaterial.

2. It is also contended that the court erred in permitting the state to offer in evidence, over the defendant's objection and exception, what purported to be an order issued by A. Hallock, requesting the clerk of said county to deliver to the defendant the county warrant in question. The rule is well settled that where a party is charged with knowingly uttering a forged instrument, and the fact of his possession of the paper is shown, but his knowledge of its character is disputed, it is admissible to show that, shortly before or after the event charged, he held or uttered similar forged instruments, to an extent which makes it impossible that he should be ignorant of the forgery. Whart. Cr. Ev. § 39; 3 Rice, Ev. § 494. Mr. Wharton, in his work on Criminal Law (section 649), referring to this question, says: "Where the scienter or quo animo is requisite to, and constitutes a necessary and essential part of, the crime with which the person is charged, and proof of such guilty knowledge or malicious intention is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent is competent notwithstanding they may constitute in law a distinct crime." To the same effect, see, also, 1 Greenl.Ev. § 53, and 3 Greenl.Ev. § 15, and notes. There is no evidence in the record, however, that tends to show that defendant disputed his knowledge of the character of the instrument, or...