State v. Gee

• Decision Date: 28 October 1895
• Parties: STATE v. GEE.
• Court: Oregon Supreme Court

42 P. 7

28 Or. 100

STATE v. GEE.

Supreme Court of Oregon

October 28, 1895

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

D.L Gee was indicted for forgery. A demurrer to the indictment was sustained, and the state appeals. Affirmed.

Defendant was indicted for knowingly uttering and publishing a certain forged and counterfeit writing, in form and similitude of the certificate described in the indictment. A demurrer to the indictment having been sustained by the trial court, the state appeals. It is charged, in substance, that pursuant to section 4085 of title 1 of chapter 76 of the Miscellaneous Laws of Oregon, compiled and annotated by W. Lair Hill, as amended by the act of February 20, 1893 (Sess.Laws 1893, p 60), the county court of Multnomah county, on January 17 1894, levied a tax of one mill upon all taxable property within the county, which was collected and kept as a separate fund known as the "road fund," to be used for the purpose of laying out, opening, making, and repairing county roads. Here follow allegations showing the establishment of road district No. 6, the apportionment of certain road funds to the district, and the appointment and qualification of John Conley as supervisor thereof. The indictment then continues: "That, by virtue of such office as supervisor, it became and was the duty of him, the said John Conley, to direct and supervise the expenditure of said moneys as aforesaid appropriated to said road district number six, pursuant to law, by the county court of Multnomah county, for making and repairing county roads in his said road district, and to employ laborers to perform such work and labor as he deemed proper in making and repairing county roads in said district, and to issue certificates to persons so performing labor and furnishing materials in making and repairing county roads in his said district under and by his direction and supervision of the amount of labor so performed or materials furnished, and the compensation to be paid therefor. That the certificate so issued by him, the said John Conley, as supervisor aforesaid, entitled the holder thereof to recover from said Multnomah county the amount of money named in said certificate to be due the person therein named for labor performed as aforesaid, and created, when approved by the county court of said Multnomah county, an indebtedness from the said county of Multnomah to the person named in said certificate of the amount of money therein named and certified to by the said John Conley, supervisor as aforesaid, to be due the said person for labor performed upon the county road in said road district number six." Then follows a description of the certificate and the formal charging part of the indictment. A copy of the certificate is contained in the indictment, and is as follows:

"91.00. Name, Miles Stanley. No. 5,196. "Time Check for the Month of Dec. 1894, District No. Six. ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ------------------------------------------------------------------------------ Team and Driver. 10 10 10 10 10 10 10 10 10 10 10 10 10 ------------------------------------------------------------------------------ Man. ------------------------------------------------------------------------------ ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Total Hours. Rate per Amt. Hour. ------------------------------------------------------------------------------- 10 10 10 10 10 10 10 10 10 10 10 10 10 260 35 91 00 ------------------------------------------------------------------------------- -------------------------------------------------------------------------------

"Multnomah County, Oregon, Dec. 31, 1894. Multnomah County, Oregon, pay to the order of Miles Stanley the sum of ninety-one dollars, in full for 26 days' work done on Sandy road. __________, Foreman.

"Approved: John Conley, Supervisor."

C.M. Idleman, Atty. Gen., and W.T. Hume, Dist. Atty., for the State.

M.L. Pipes, for respondent.

WOLVERTON, J. (after stating the facts).

The only theory upon which this case can proceed is that the law has provided for an official certificate or return of a road supervisor, which may be received by the county court as legal evidence of the facts certified to, and a penalty, for forging or counterfeiting the same, and for uttering such certificate so forged or counterfeited with intent to defraud. The indictment is drawn under section 1808 Hill's Ann.Laws Or., which provides that "if any person shall, with intent to injure or defraud any one falsely make, alter, forge, or counterfeit any public record whatever, or any certificate, return or attestation, of any clerk, notary public, or other public officer, in relation to any matter wherein such certificate, return, or attestation may be received as legal evidence, or any note, certificate, or other evidence of debt issued by any officer of this state, or any county, town, or other municipal or public corporation therein, authorized to issue the same, or any contract, charter, letters patent, deed, lease, bill of sale, will, testament, bond, writing obligatory, undertaking, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, evidence of debt, or any acceptance of a bill of exchange, endorsement or assignment of a promissory note, or any warrant, order, or check, or money, or other property, or any receipt for money or other property, or any acquittance or discharge for money or other property, or any plat, draft, or survey of land; 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, such person, upon conviction thereof, shall," etc. The section upon which the indictment is based provides, among other things, that "such county court shall apportion the taxes so collected among the several road districts in the county. *** The county clerk shall thereupon notify the road supervisor in each of the road districts in his county of the amount of the road fund set apart for the use of his road district for opening, making, and repairing county...