State v. Curtis

• Decision Date: 12 November 1888
• Citation: 40 N.W. 263,39 Minn. 357
• Parties: STATE v CURTIS.
• Court: Minnesota Supreme Court

39 Minn. 357

40 N.W. 263

STATEvCURTIS.

Supreme Court of Minnesota.

November 12, 1888.

(Syllabus by the Court.)

An indictment for forgery charged that it “consisted in indorsing the name of Fred. W. Smith upon a check dated March 8, 1887, for the sum of fifty dollars, signed and drawn by J. A. Gilfillan, and payable to the order of Rev. Fred. W. Smith,” the name of the drawee not being given. Held sufficient. MITCHELL and VANDERBURGH, JJ., dissent.

A defendant in a criminal case, sworn as a witness in his own behalf, may, on cross-examination, be asked if he has been convicted of crime.

Appeal from district court, Becker county; SLEEPER, Judge.

Indictment of H. W. Curtis for forgery. The defendant was convicted, and he appeals.

Jeff. H. Irish, for appellant.

Moses E. Clapp, Atty. Gen., for the State.

GILFILLAN, C.J.

This is an indictment for forgery, which forgery as alleged in the indictment “consisted in indorsing the name of Rev. Fred. W. Smith upon a check dated March 8, 1887, for the sum of fifty dollars, signed and drawn by J. A. Gilfillan, and payable to the order of Rev. Fred. W. Smith.” The defendant was found guilty as charged in the indictment. On the trial the check was offered in evidence, and appeared to be drawn upon the First National Bank of St. Paul. It was objected to on the ground that there was a variance between it and the instrument described in the complaint. There was no variance. The instrument contained every item of description contained in the indictment, and just as therein set forth; and had one further item of description not in the indictment, to-wit, the name of the drawee. So far as the offense charged was concerned, it did not matter who was the drawee; and, as the check was described so fully that the defendant could not have been misled by its introduction, there could be no variance. An objection to the indictment is made which goes to its sufficiency to show a crime committed. This is that, because the check is not expressly alleged to have had a drawee, it is not an instrument known to the law, and has no legal effect, and cannot, therefore, be the subject of forgery. It is called a “check,” is stated to have had a drawer, a payee, and to have been for the payment of a specified sum of money, from which it appears that it was what in law is known as a “check.” A “check” is an instrument as well known in the law as a bill of exchange or promissory note. When the term is applied to a written instrument, it has as well-defined and certain a legal signification as the term “bill of exchange” or “promissory note.” So, when it is designated as a “check,” and especially when it is stated to have a drawer and payee, and to be for a specified sum, it appears that it was drawn on some bank or banker as certainly as though the name of the bank or banker were given; for without a drawee it could not be a check. If the indictment were for forging the acceptance of the drawee, it would undoubtedly be necessary to state...