State v. Dunn

• Decision Date: 20 March 1893
• Parties: STATE v. DUNN.
• Court: Oregon Supreme Court

32 P. 621

23 Or. 562

STATE v. DUNN.

Supreme Court of Oregon

March 20, 1893

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

R.H Dunn pleaded guilty to an indictment charging him with forgery. From a judgment overruling his motion in arrest of judgment, and sentencing him to imprisonment, he appeals. Affirmed.

McGinn Sears & Simon, for appellant.

Geo. E Chamberlain, Atty.Gen., and W.T. Hume, Dist.Atty., for the State.

LORD C.J.

The defendant pleaded guilty to an indictment which charged that he, "on the 15th day of December, 1892, in the county of Multnomah and state of Oregon, did willfully, knowingly, and feloniously utter and publish as true and genuine, to one W.G. Jenne, a certain false and forged writing and promissory note, knowing the same to be false and forged, the tenor, purport, and effect whereof is as follows: '$165.00. Portland, Oregon, Dec. 14, 1882. Ninety days after date, without grace, we, jointly and severally, promise to pay to the order of R.H. Dunn one hundred and sixty-five dollars, for value received, with interest from date, payable at the rate of ten per cent. per annum until paid, principal and interest payable in U.S. gold coin at the Ainsworth National Bank, in Portland, Oregon; and in case suit or action is instituted to collect this note, or any portion thereof, we promise to pay such additional sum of money as the court may adjudge reasonable as attorney's fees in said suit or action. Jonathan Richardson. J.J. Fisher,'--with intent to injure and defraud the said W.G. Jenne and other persons," etc. Before judgment was rendered on defendant's plea of guilty, he filed a motion in arrest of judgment, upon the ground that the facts stated in the indictment do not constitute crime, which the court overruled, and thereafter sentenced him to imprisonment in the penitentiary.

It will be observed that nearly ten years have elapsed since said note became due, or a cause of action accrued thereon, and our statute prescribes that an action can only be commenced on a contract of this character within six years after the action has accrued. Hill's Code, § 6. Upon this state of the case, the contention for the defendant is that the note set out in the indictment appears on its face to be barred by the statute of limitations, or not to be enforceable, and therefore is not such an instrument as can be the subject of forgery. The defendant is indicted under section 1808, Hill's Code, which provides that "if any person shall, with intent to injure or defraud any one, falsely make, alter, forge, or counterfeit *** any promissory note, *** or shall, with such intent, knowingly utter or publish as true and genuine any such false, altered, forged, or counterfeited record, writing, instrument, or matter whatever, shall be punished by imprisonment in the penitentiary not less than two nor more than twenty years." By this section the uttering or passing, as well as the making, of a forged instrument, is declared a forgery. They are separate and distinct crimes, though both offenses are forgery. The party uttering need not be the party who forged the instrument. To make out the offense, it is sufficient that the writing or instrument should be forged or altered; that the party uttering or passing it knew it to be false, altered, or forged; and that he should utter, or attempt to utter, it with intent to injure or defraud some one.

As defined by Mr. Bishop, "forgery is the false making, or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." 2 Bish.Crim.Law, § 523. "But," he further observes, "to constitute an indictable forgery, it is not alone sufficient that there be a writing, and that the writing be false. It must be also such as, if true, would be of some legal efficacy, real or apparent, since otherwise it has no legal tendency to defraud." Id. § 533. "This is on the principle," said Gregory, J., "that every man knows the law, and is able to appreciate the legal effect of the instrument, and therefore it cannot, in legal contemplation, defraud any one." Reed v. State, 28 Ind. 397. Hence a writing invalid on its face cannot be the subject of forgery, because it has no legal tendency to injure or defraud. But while a writing which is void, or without legal efficacy, on its face, cannot be the subject of forgery, it may be, when it is shown by the averment of proper extrinsic facts to be capable of injury, or affecting the rights of another. Of course, if the instrument is void or invalid on its face, and cannot be made good by averment the crime of forgery cannot be predicated upon it. An indictment for forgery must therefore disclose an instrument which is calculated, on its face, to have some effect, or extrinsic facts must be alleged which will enable the court to see judicially its fraudulent tendency. ...