State v. Ford

• Decision Date: 14 May 1918
• Parties: STATE v. FORD ET AL. [*]
• Court: Oregon Supreme Court

172 P. 802

89 Or. 121

STATE v. FORD ET AL. ^[*]

Supreme Court of Oregon

May 14, 1918

Department 2.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

H. N Ford and Elizabeth G. Frary were charged with forgery, and the former was convicted, and he appeals. Reversed.

The defendant was convicted of the crime of forging a deed in favor of J. D. McKinnon, May 12, 1914. The conviction is based on the contention of the state that he caused the deed in question to be signed by Elizabeth G. Frary, who signed her name as Elizabeth G. Ford, and who is described in the body of the deed as appellant's wife. The state claims that she was not his wife, and that he had a wife living at the date of the deed. The state also claims that the deed was executed with intent to injure and defraud.

It appears that appellant went to Alaska in 1898; that he there met Caroline C. S. Vogt, a young woman about his own age. While living in the neighborhood of Eagle City they agreed to marry. The state's evidence is to the effect that there was no clergyman or officer authorized to celebrate a marriage to be found in that part of the country. On December 24, 1898, they appeared before J. F. Hobbs, a notary public residing at Eagle City, and entered into a contract of marriage. A certificate to this effect was issued by the notary under his official seal, and there is evidence that the notary, who was also an attorney at law, advised them that a contract of marriage so entered into was valid and lawful. The parties to the contract lived together as man and wife for ten years thereafter, visiting appellant's relatives in Michigan and North Dakota, and residing in several different places. They were everywhere treated as man and wife, appellant repeatedly acknowledging the relation. Four children were born to them, one of whom, a daughter 12 years of age, testified at the trial.

In 1908 appellant ceased to live with Caroline C. S. Ford, but he continued to contribute to her support until 1914. In 1907 appellant began living with Elizabeth G. Frary. He entered into a written contract of marriage with her, but there was no ceremony performed until after the execution of the deed on which this prosecution is based. Appellant from and after 1908 lived openly with Elizabeth G. Frary, introduced her to a number of persons as his wife, and she went under the name of Elizabeth G. Ford.

In 1914 appellant associated himself with J. D. McKinnon and F. C Sharkey for the purchase of live stock for the Alaska market. McKinnon advanced $15,000 to finance the enterprise, and the parties agreed to share profits and losses equally. For the purpose of indemnifying McKinnon for any loss chargeable to appellant the deed in question was executed. It purported to be a warranty deed, but was in effect a mortgage.

John C McCue and Wm. A. Williams, both of Portland, for appellant. Charles C. Hindman, Deputy Dist. Atty., of Portland (Walter H. Evans, Dist. Atty., and John A. Collier, Deputy Dist Atty., both of Portland, on the brief), for the State.

McCAMANT J. (after stating the facts as above).

Counsel for the respective parties have lavished a wealth of learning and research on the question of the validity of the contract marriage celebrated December 24, 1898, at Eagle City, Alaska. We shall assume without deciding that this marriage was valid. Can it be said on this assumption that appellant forged the deed set out in the indictment? Section 1996, L. O. L., in so far as it is material here, is as follows:

"If any person shall, with intent to injure or defraud any one, falsely make, alter, forge, or counterfeit any * * * contract, * * * deed, * * * or shall, with such intent, knowingly utter or publish as true or genuine any such false, altered, forged, or counterfeited * * * writing * * * such person, upon conviction thereof, shall be punished. * * *"

This statute has been construed by the court in State v. Wheeler, 20 Or. 192, 195, 25 P. 394, 10 L. R. A. 779, 23 Am. St. Rep. 119. It is there held that:

"The essential elements of the crime are: (1) A false making of some instrument in writing; (2) a fraudulent intent; (3) an instrument apparently capable of effecting a fraud."

Assuming that Caroline C. S. Ford was appellant's wife May 12, 1914, when the deed was executed, the deed contained a false recital in that it described Elizabeth G. Ford as the wife of H. N. Ford. The deed did not purport to be the deed of Caroline C. S. Ford, or of any one else than H. N. Ford and Elizabeth G. Ford, who signed it. In his scholarly opinion in State v. Wheeler, supra, Mr. Justice Bean says:

"The term 'falsely,' as applied to making a promissory note in order to constitute forgery, has reference not to the contract or tenor of the instrument, or the fact stated in the writing, because a note or writing containing a true statement may be forged or counterfeited as well as any other; but it implies

that the writing is false, not genuine, fictitious, not a true writing, without regard to the truth or falsehood of the statement it contains. The note must in itself be false, not genuine, a counterfeit, and not the true instrument which it purports to be."

We think that there can be no doubt of the correctness of the principles so announced. The genuineness of an instrument is not dependent on the truthfulness of its recitals. A deed may falsely recite the area of the land conveyed, but if it is executed by the true parties it is still a genuine as distinguished from a false, forged, or counterfeited instrument. A deed containing such false recital may form the basis for some other criminal charge, but if it is executed by the parties purporting to convey or incumber it is not a forgery. It is said by the Iowa court in Loser v. Plainfield Bank, 149 Iowa, 672, 128 N.W. 1101, 31 L. R. A. (N. S.) 1112, 1114, 1115:

"There is no such thing as a 'legal name' of an individual in the sense that he may not lawfully adopt or acquire another, and lawfully do business under the substituted appellation. In the absence of any restrictive statute, it is the common-law right of a person to change his name, or he may by general usage or habit acquire a name notwithstanding it differs from the one given him in infancy. * * * A man's name for all practical and legal purposes is the name by which he is known and called in the community where he lives and is best known."

This principle is also taught by Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947, 26 L. R. A. (N. S.) 1167, 18 Ann. Cas. 701; Laflin Powder Co. v. Steytler, 146 Pa. 434, 23 A. 215, 14 L. R. A. 690, 695; Roberts v. Mosier, 35 Okl. 691, 132 P. 678, Ann. Cas. 1914D, 423; 19 R. C. L. 1332, 1333.

It is not believed that section 7093, L. O. L., abrogates the common-law principle announced by the foregoing authorities. This section of the Code empowers the county court to hear and determine applications for the change of names. In 1852 Pennsylvania enacted a similar statute, found in the Session Laws for that year at page 301. It was held by the Supreme Court of Pennsylvania that the act "was in affirmance and aid of the common law, to make a definite point of time at which a change shall take effect," and that notwithstanding the statute a party can acquire by custom the right to use a certain...