State v. Frasier
| Decision Date | 29 April 1919 |
| Citation | 180 P. 520,94 Or. 90 |
| Parties | STATE v. FRASIER. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Benton County; J. W. Hamilton, Judge.
E. J Frasier was convicted of uttering a forged receipt, and he appeals. Affirmed.
The defendant, E. J. Frasier, was indicted by the grand jury of Lane county, Or., for the crime of uttering a forged receipt. The case was transferred to Benton county, where he was tried and convicted. From the judgment of sentence, defendant appeals. The charging part of the indictment is as follows:
--bearing the indorsement, 'T. W. Harris,' bearing the impression of an encircled letter 'P,' and being perforated by a mark in the following letters and figures 'Paid 10 11 09'--with intent to injure and defraud contrary to the statutes," etc.
The defendant demurred to the indictment upon the following grounds: First, that the crime charged is not triable within the county of Lane, state of Oregon; second, that the facts therein stated do not constitute a crime.
J. K. Weatherford, of Albany, and Whitten Swafford, of Eugene (Weatherford & Wyatt, of Albany, and Whitten Swafford, of Eugene, on the brief), for appellant.
George M. Brown, Atty. Gen., Arthur Clarke, Dist. Atty., of Corvallis, and L. L. Ray, Dist. Atty., of Eugene, for the State.
BEAN, J. (after stating the facts as above).
The overruling of the demurrer to the indictment is assigned as error, and several objections and exceptions to the testimony are upon the ground of the insufficiency of the charge.
The contention is made that, by reason of the allegation in the indictment that the defendant did "wrongfully and unlawfully and feloniously, utter and publish, as true and genuine, to one A. M. Cannon, as referee in bankruptcy a certain false and forged writing," etc., if the indictment is sufficient to constitute a crime, the question would be one for the federal courts, and not in the state courts.
Section 1996, L. O. L., declares, inter alia, that if any one shall falsely make, alter, forge, or counterfeit any writing, obligatory promissory note, evidence of debt, indorsement, check, "or any receipt for money or other property, or any acquittance or discharge for money or other property," with intent to injure or defraud any one, or shall with such intent knowingly utter or publish as true or genuine any such false, altered, forged, or counterfeited writing, instrument, or matter whatever, such person, upon conviction thereof, shall be punished.
It is clear that the statute of this state denominates the utterance of a forged receipt as a crime against the laws of this state, and the courts of this state have jurisdiction of the crime unless precluded by some federal law. This is conceded, but it is contended that, as the forged instrument is alleged to have been passed to A. M. Cannon, as referee in bankruptcy, the courts of the United States have exclusive jurisdiction over the offense.
Where a court has jurisdiction of a crime, a statute simple conferring the same jurisdiction on another court does not deprive the former of its jurisdiction, in the absence of an express provision or clear implication to that effect, but merely confers concurrent jurisdiction. In some cases the jurisdiction of the federal courts over offenses is exclusive of the jurisdiction of the state courts, while in others it is concurrent. 16 C.J. §§ 173, 174, pp. 150, 151. The criminal jurisdiction of the federal courts is confined to crimes under federal statutes, except as to common-law offenses committed on the high seas or in places or districts within a state which have been ceded by the state to the United States, and which when the crime was committed were under the exclusive jurisdiction of the United States. Offenses which are directed against the sovereignty of the state or which affect its population are within the jurisdiction of the state courts, although such offenses may also be directed against the sovereignty of the federal government, and may be thus within the jurisdiction of both the federal and the state courts. 16 C.J. § 185, p. 160. We will assume without deciding that the federal courts would have jurisdiction of the offense charged. It is unnecessary to go further. Where certain acts constitute forgery under the laws of the state, the jurisdiction of state courts is not ousted by the fact that the same acts are also an offense under the laws of the United States. 19 Cyc. p. 1391. The courts of this state have jurisdiction of the crime referred to in the indictment, whether or not the United States courts have jurisdiction of such crime. Territory of Oregon v. Coleman, 1 Or. 191, 192. In Cross v. North Carolina, 132 U.S. 131, 10 S.Ct. 47, 33 L.Ed. 287, it was held that: A state is not deprived of jurisdiction over a person who criminally forges a bill of exchange or promissory note with intent to defraud, in violation of its statutes, or of its power to punish the offender committing such offense, by the fact that he follows this crime up by committing against the United States the further crime of making false entries concerning such bill or note on the books of a national bank, with intent to deceive the agent of the United States designated to examine the affairs of the bank, and in violation of the statute of the United States in that behalf. It is stated in 12 R. C. L. § 16, p. 152, as follows:
"The courts of the states and territories may punish the forgery of treasury notes of the United States, although Congress has passed an act for the punishment of such offenses."
As to the place where the alleged forged instrument was published, it does not appear either from the allegations of the indictment or the testimony that such place was ceded to and under the exclusive jurisdiction of the United States, as provided by section 711, U.S. Revised Statutes (Comp. St. § 1233). See, also, 8 R. C. L. § 57, p. 98. The cases cited by the defendant upon this point are mostly where the prosecution of the crime is within the exclusive jurisdiction of the federal courts, being a violation of the United States statute, as prosecution for perjury in making a false oath under the Homestead Act of Congress, or in swearing falsely before the register of the United States land office in a proceeding touching the public land, and not a violation of the state statute.
The further contention is made: First, that the indictment does not state facts sufficient to constitute a crime, in that the indictment contains no allegation of appointment of Mr. Cannon by any court; second, that in order to be the subject for forgery, the instrument upon its face must, if it were genuine, be of some benefit, force, or effect or injury to another. It will be observed that the instrument in question is alleged to have been forged and is set out in full in the indictment. The manner in which it is set forth in an indictment is criticized by the defense especially that part of the indictment which states, ' It should be borne in mind that the indictment further states, "the said writing, check, receipt, and instrument being in the form of and purporting to be an indorsed, canceled and paid check," therefore it is apparent from the face thereof that it is the forged instrument that is set out therein and that the words "bearing the indorsement" refer to the purported instrument only, and is not an allegation that the check was indorsed by T. W. Harris.
According to the later doctrine, where an indictment alleges that an instrument is "forged," it sufficiently imputes falsity to the instrument, so that the pleader, in setting out the instrument, may aver that the defendant forged "a certain will" or "a certain false, etc., paper writing purporting to be the last will," that is, the words "purporting to be" may be omitted. Wharton's Criminal Pl. and Pr. (9th Ed.) § 184; Wharton's Criminal Law (10th Ed.) § 738.
In the indictment in question the instrument is described as a false and forged "writing, check, receipt, and instrument being in the form of and purporting to be an indorsed, canceled, and paid check and being in words and figures as follows to wit." Then follows a copy of the check with the indorsement, words, figures, and marks thereon. Hence it is not essential that the words "purporting to bear the indorsement of T. W. Harris" should be employed as the check or receipt had already been described as "purporting to be an indorsed, canceled, and paid check," and there is no room for misunderstanding in regard thereto.
As to the effect of the instrument alleged to be forged and to have been uttered, it should appear from the indictment that it is prima facie capable of being used as legal proof in some way for example, as a receipt in a suit against the forger by the person whose receipt is forged. Wharton's Crim. Law (10th Ed.) § 739; 19 Cyc. 1394. It cannot be questioned but that in an action...
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State v. Frasier
...Department 2. Appeal from Circuit Court, Benton County; J. W. Hamilton, Judge. On petition for rehearing. Denied. For former opinion, see 180 P. 520. Weatherford & Wyatt, of Albany, Whitten Swafford, Eugene, and Wm. P. Lord, of Portland, for appellant. Arthur Clarke, of Corvallie, and L. L.......