State v. Hazzard

• Decision Date: 19 February 1907
• Docket Number: 20,934
• Citation: 80 N.E. 149,168 Ind. 163
• Parties: The State v. Hazzard
• Court: Indiana Supreme Court

80 N.E. 149

168 Ind. 163

The State v. Hazzard

No. 20,934

Supreme Court of Indiana

February 19, 1907

From Henry Circuit Court; John M. Morris, Judge.

Prosecution by the State of Indiana against George Hazzard. From a judgment quashing the affidavit, the State appeals.

Reversed.

Charles W. Miller, Attorney-General, W. C. Geake, C. C. Hadley, H. M Dowling and George M. Barnard, Prosecuting-Attorney, for the State.

Forkner & Forkner, for appellee.

OPINION

Jordan, J.

An affidavit was filed in the lower court on August 20, 1906 charging appellee with having committed the crime of forgery. The affidavit, among other things, charges that George Hazzard, in the county of Henry, and State of Indiana, on the day of January, 1905, unlawfully, feloniously falsely and fraudulently did make, forge and counterfeit a certain order, subscription and writing, purporting to have been made and executed by Nelson Allen to said George Hazzard for the subscription order, sale and delivery by said George Hazzard of certain goods, chattels and property to said Nelson Allen. The "false, forged and counterfeit order, subscription and writing" in question is incorporated in the affidavit, and is as follows:

"History of Henry County, Indiana. Military Edition. Fully Illustrated. By George Hazzard. Two volumes. $ 10.

Subscribers Nelson Allen

Post-office address Mooreland, Indiana."

On motion of appellee, the affidavit was quashed, and judgment was rendered that he be discharged and go hence without day. The State appeals, and predicates error on the ruling of the court in quashing the affidavit.

The offense, as charged, was committed prior to the passage of the public offense statute of 1905, wherein, under the provisions of § 676 of that act (Acts 1905, pp. 584, 750, § 2283 Burns 1905), the crime of forgery is defined, and the punishment therefor provided By § 699 of said act (§ 2360 Burns 1905) it is declared that "all laws within the purview of this act are hereby repealed; but this repeal shall not affect any prosecutions pending or offenses heretofore committed under existing laws and such prosecutions and offenses shall be continued and prosecuted to a final determination as if this act had not passed." Consequently this prosecution must be regarded as based upon § 2354 Burns 1901, § 2206 R. S. 1881, in force at the time the offense in question is alleged to have been committed. Miller v. State (1905), 165 Ind. 566, 76 N.E. 245.

This section, among other things, provides as follows: "Whoever falsely makes or assists to make, defaces, destroys, alters, forges, counterfeits, prints, or photographs, or causes to be falsely made, defaced, destroyed, altered, forged, counterfeited, printed, or photographed, any record or authentic matter of a public nature, deed, will, codicil, lease, bond, covenant, writing obligatory, bank bill, or note, check, bill of exchange, or any acceptance or indorsement of any bill of exchange, promissory note for the payment of money or other property; or any post-note, acquittance, or receipt either for money or property; or any acquittance, release, or discharge of any debt, account, action, suit, demand, or other thing, real or personal; or any order, warrant, or request for the payment of money, * * * or any other instrument of writing, with intent to defraud any person, body politic or corporate, * * * shall be imprisoned," etc. (Our italics.)

Appellee has wholly neglected to file a brief or present any argument whatever in support of the decision of the lower court, apparently assuming that this appeal is of no concern to him. The only information which we have in respect to the ground upon which the court held the affidavit insufficient is that furnished by the brief for the State, wherein it is stated that the lower court held that the subscription paper set out in the affidavit did not constitute such a writing obligatory as to make the forging thereof a criminal offense under the statute. We, however, consider the paper or writing in question as one coming within the provisions of the statute defining forgery. It purports on its face to be a subscription paper for a history of Henry county, Indiana, by George Hazzard, military edition, fully illustrated, in two volumes, price $ 10. Underneath the word "subscribers" appears the name of Nelson Allen, whose post-office address is given as Mooreland, Indiana.

The term "subscriber" has a well-understood meaning. Webster's International Dictionary defines it as follows:

"One who subscribes; one who contributes to an undertaking by subscribing. One who enters his name for a paper, book, map, or the like." The same authority defines the word "subscribe" as follows:

"To sign one's name to a letter or other document. To give consent to something written, by signing one's name; hence, to assent; to agree. To set one's name to a paper in token of promise to give a certain sum. To enter one's name for a newspaper, a book, etc." See, also, definition of the term "subscribe" in Anderson's Law Dictionary.

The paper upon its face must be regarded as a written subscription for the work or history therein mentioned. No particular formality is requisite. Any form of statement by which an intent to effect an...