Appeal
from district court, Gallatin county; F. K. Armstrong, Judge.
W. L
Evans was convicted of forgery, and from an order sustaining
a motion in arrest of judgment the state appeals. Affirmed.
This is
an appeal by the state from an order of the district court
arresting judgment in a case where the defendant had been
found guilty under an information charging him with forgery.
The motion in arrest of judgment was made upon the two
statutory grounds (1) that the information does not state
facts sufficient to constitute a crime of forgery, and (2)
that the court had no jurisdiction of the action. The
charging part of the information was: "That the
above-named W. L. Evans is guilty of the crime of forgery
committed as follows, that is to say: That the said W. L
Evans, late of said county and state, on Tuesday, the 25th
day of December, 1894, at the county of Gallatin, and state
of Montana, then and there a certain false, forged, and
counterfeited writing on paper, of the tenor following
'Bozeman, December 25, '94. Schumacher, Esq.: Please
pay to the order of W. L. Evans the amt. of twenty dollars
($20.00), and charge to him at my office. Johnson & McCarthy,'--did falsely, feloniously, and designedly
utter and pass as true and genuine; he, the said W. L. Evans
at the same time well knowing the said writing on paper to be
false, forged, and counterfeit, with intent, then and there,
one William Guy to prejudice and defraud."
H. J.
Haskell, Ella L. Knowles, and W. L. Holloway, for the State.
DE
WITT, J. (after stating the facts).
This
information is drawn under a statute similar to that which
was in existence in California when the Case of Ah Woo, 28
Cal. 206, was decided. See, also, State v. Malish (this term)
39 P. 739. An information charging forgery by the uttering,
etc., as does this one, is proper, for the uttering is, under
our statute (section 96, Cr. P. Act), one method by which
forgery may be committed. See cases last cited. This question
of criminal pleading was not considered in State v.
Hudson, 13 Mont. 112, 32 P. 413, the case being decided
on the question of jurisdiction only. See State v. Malish
(this term) 39 P. 739. The ground upon which the motion in
arrest of judgment was granted seems to be that the alleged
forged instrument concluded with the words: "And charge
to him at my office. Johnson & McCarthy." Counsel for
the respondent argue that this writing is invalid on its
face, in that, if it were used as genuine, it could not do
any damage to the alleged signers of the same, namely,
Johnson & McCarthy, for the reason that it requested
Schumacher to charge the $20 to Evans, instead of requesting
him to charge it to Johnson & McCarthy. We are of opinion
that the motion in arrest of judgment was properly granted.
Mr
Bishop says, in his work on Criminal Law (volume 2, § 506),
as follows: "When the writing is invalid on its face, it
cannot be the subject of forgery, because it has no legal
tendency to effect a fraud." Section 511 of the same
work states as follows: "Therefore the general doctrine
is that the invalidity of an instrument must appear on its
face, if the defendant would avail himself of this defect on
a charge of forgery. In still other words, the forged
instrument, to be the foundation for an indictment, must
appear on its face to be good and valid for the purpose for
which it was created. It must be, in another aspect, such
that, if it were genuine, it would be evidence of the fact it
sets out." We find it stated in People v.
Tomlinson, 35 Cal. 506, as follows: "Without much
conflict, if any, it has been held from the outset that the
indictment must show that the instrument in question can be
made available in law to work the intended fraud or injury.
If such appears to be the case on the face of the instrument,
it will be sufficient to set it out in the indictment; but,
if not, the extrinsic facts, in view of which it is claimed
that the instrument is available for the fraudulent purpose
alleged in the indictment, must be averred. If the indictment
merely sets out an instrument which is a nullity upon its
face, without any averment showing how it can be made to act
injuriously or fraudulently, by reason of matter aliunde, no
case is made. This rule is so well settled by the precedents
that we do not feel called upon to discuss it upon principle.
Rex v. Knight, 1 Salk. 375, 1 Ld. Raym. 527;
Reg. v. Marcus, 2 Car. & K. 356; People v.
Shall, 9 Cow. 778; People v. Harrison, 8 Barb.
560; State v. Briggs, 34 Vt. 501; Com. v. Ray, 3
Gray, 441; Barnum v. State, 15 Ohio. 717;
Clarke
v. State, 8 Ohio St. 630. These cases establish the doctrine
that, to constitute forgery, the forged instrument must be
one which, if genuine, may injure another, and that it must
appear from the indictment that such is its legal character,
either from the recital or description of the instrument
itself, or, if that does not show it to be so, then by the
averment of matter aliunde, which will show it to be of that
character." We take the following from the remarks of
Judge Cowen in ...
