State v. Kelliher

• Decision Date: 26 February 1907
• Citation: 88 P. 867,49 Or. 77
• Parties: STATE v. KELLIHER.
• Court: Oregon Supreme Court

88 P. 867

49 Or. 77

STATE v. KELLIHER.

Supreme Court of Oregon

February 26, 1907

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

A.T Kelliher appeals from a conviction. Reversed and remanded.

Appellant A.T. Kelliher, is accused by an information jointly with H.H Turner, with the forgery of a certain instrument in writing viz., a deed, by signing the name of G.I. Rice, to an assignment to this appellant of a certificate of sale of school lands, issued by the state land board to G.I. Rice such assignment being executed and acknowledged in the same manner as a deed to real estate. This appellant was tried alone, and, upon conviction, brings this appeal. The instrument alleged to have been forged is in the following language, viz.:

"Know all men by these presents: That I, G.I. Rice, to whom the annexed certificate of sale No. 13,015 was executed by the state land board of the state of Oregon, for the following described land, situated in Morrow county, state of Oregon, to wit: The E. 1/2 of section 36, town 5 S., range 26 E. of the W.M., containing 320 acres, have, for a valuable consideration, to me in hand paid by Alfred T. Kelliher, hereby assign and transfer to said Alfred T. Kelliher all my right, title, interest and claim of, in and to the said described land, and I hereby authorize the said state land board to execute a deed to Alfred T. Kelliher for said described land. Witness my hand and seal this 19th day of August, A.D.1902. G.I. Rice. [ Seal.]

"Signed, sealed, and delivered in presence of: T.N. Denham. H.H. Turner.

"State of Oregon, County of Marion--ss.: This certifies that on this 19th day of August, A.D.1902, before me, the undersigned, a notary public in and for said county and state, personally appeared the within named G.I. Rice, who is known to me to be the identical person described in, and who executed the within instrument, and acknowledged to me that he executed the same freely and voluntarily for the uses therein mentioned. In testimony whereof, I have hereunto set my hand and seal the day and year last above written.

"[Notarial Seal.] H.H. Turner,

"Notary Public for Oregon."

The name of O. West only is inserted at the foot of the information as a witness examined before the district attorney. At the trial the information was dismissed as to H.H. Turner that he might be used by the state as a witness. In the year 1900, this appellant made arrangements with Turner to procure for him persons to sign applications for the purchase of school lands from the state of Oregon, and to procure from such applicants, assignments to the appellant of the certificate issued by the state land board for the lands so applied for. Under this arrangement, Turner, on August 16, 1902, produced the G.I. Rice application and the assignment of the certificate of sale to be issued thereon. G.I. Rice was the name of a fictitious person, and the name was signed by Turner to the application for the purchase and to the assignment to the appellant of the certificate of sale; both being signed on the same day, but the assignment was dated August 19, 1902. Turner testified also that in August and September, 1902, he procured for appellant about 30 other applications, for the purchase of school land and assignments of the certificates of sale to be issued therefor; the signatures to which were also names of fictitious persons, and the name of the applicant was signed by him to the application and to the assignment in each case. There was no evidence except Turner's of any of these 30 applications, including the G.I. Rice application, having ever been in the hands of the appellant; but the certificates when issued were all turned over to the appellant, and he furnished to the clerk of the state land board the money to cover the first payment on the applications and all the applications were procured by Turner for appellant's benefit, and appellant furnished Turner the descriptions of the lands to be placed in the applications.

E.B. Watson and Geo. G. Bingham, for appellant.

John H. McNary, Dist. Atty., and Charles L. McNary, Deputy, for the State.

EAKIN, J. (after stating the facts).

Appellant filed a motion to quash the information for the reasons, in substance: (1) That the names of the witnesses examined by the district attorney are not indorsed on the information; (2) that the information is based on evidence of other witnesses than the one indorsed thereon; (3) that West, whose name is indorsed, had no knowledge of the facts upon which the information is based; and (4) that there was no legal evidence before the district attorney to sustain the charge, and the motion was based wholly upon matter disclosed by affidavits.

1. Section 1284, B. & C. Comp., provides that: "The grand jury ought to find an indictment when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury." This section applies equally to the district attorney in finding an information, and neither the grand jury nor the district attorney has any authority to find a true bill unless the evidence before them or him is sufficient in their judgment to warrant a conviction, and the name of every witness whose evidence was considered in investigating the charge must be inserted at the foot of, or indorsed on, the information. Id. § 1262. Mr. Justice Wolverton, in State v. Warren, 41 Or. 356, 69 P. 679, referring to this section 1262, says: "This statute was enacted for a purpose, and that was evidently to afford the accused an opportunity of ascertaining the names of the witnesses with whom he would probably be confronted at the trial. *** Such statutes are mandatory in character, and should be observed to the letter by the executive officers of the law." But it does not follow that the defendant in a criminal case can by motion to quash, require the district attorney or the grand jury to disclose what evidence was before him or them. Nor can its sufficiency be questioned by motion and affidavit. It does not appear in this case that there were any witnesses examined by the district attorney relating to this charge, whose names are not indorsed on the information. If, at the trial, it appears that others were examined, and their names were not so indorsed, then by section 1262, they cannot be heard against the defendant at the trial. And whether the evidence of O. West and the records before the district attorney were sufficient to justify the finding of the information is not a matter that can be tried out by the court on affidavit. Otherwise every case by indictment or information could be brought before the court by motion, and the district attorney or the grand jury, respectively, required to disclose all the evidence before them and the court determine whether it was sufficient. In State v. Grady, 84 Mo. 220, 223, the court holds that, of the sufficiency of the evidence, the grand jury are the judges. "If it were otherwise, it would result that the court would become the tribunal to indict." Section 1349, B. & C. Comp., provides: "The indictment must be set aside by the court, upon the motion of the defendant, in either of the following cases: (1) When it is not found, indorsed, and presented as prescribed in chapter VII of title XVIII of this code; (2) when the names of the witnesses, examined before the grand jury, are not inserted at the foot of the indictment or indorsed thereon." And the ground of the motion relied on here does not come within the provisions of this section; and in State v. Whitney, 7 Or. 386, it was held that these are the only two cases for which an indictment can be set aside. Although, in State v. Justus, 11 Or. 178, 8 P. 337, 50 Am.Rep. 470, it is intimated, though not decided, that irregularities in proceedings before grand juries, not covered by chapter 7 may, under some circumstances, be taken advantage of by motion to quash. However, even if the motion will lie to quash an indictment for irregularities in the proceedings before the grand jury or the district attorney, not prescribed by chapter 7, still such motion cannot be permitted to question the sufficiency of the evidence to justify the indictment, and the motion was properly denied.

2. The appellant demurred to the information, for the reason that the facts stated did not constitute a crime, viz., that the forged instrument is not a deed within the meaning of section 1858 of the Code. This section provides that "if any person shall, with intent to injure or defraud any one falsely make, alter, forge, or counterfeit *** any...