State v. Klugherz

• Decision Date: 29 January 1904
• Docket Number: 13,808 - (222)
• Parties: STATE v. GEORGE KLUGHERZ
• Court: Minnesota Supreme Court

98 N.W. 99

91 Minn. 406

STATE v. GEORGE KLUGHERZ

Nos. 13,808 - (222)

Supreme Court of Minnesota

January 29, 1904

Defendant, being arraigned in the district court for Blue Earth county upon an indictment charging him with the crime of forgery in the first degree, entered a special plea of former acquittal. An order, Lorin Cray, J., overruling a demurrer to the special plea having been entered, the case was by consent certified to the supreme court for review. Affirmed.

SYLLABUS

Former Acquittal.

A plea of former acquittal is sufficient whenever it shows on its face that the second indictment is based upon the same single criminal act which was the basis of the indictment upon which the defendant was acquitted.

Forgery.

The making of a forged written instrument and the uttering of it by the same person, at the same time, as one transaction constitute but one offense.

S. B. Wilson and W. E. Young, for the State.

Pfau & Pfau, for defendant.

OPINION

START, C.J.

On November 21, 1903, in the district court of the county of Blue Earth, the defendant was put on trial, and acquitted, upon an indictment accusing him of the crime of forgery in the first degree, committed by uttering a certain forged real estate mortgage. He was thereupon arraigned upon the indictment in this case accusing him of the crime of forgery in the first degree, committed by forging the same real estate mortgage which he was charged with uttering by the first indictment. To the second indictment he entered, besides the plea of not guilty, a special plea of former acquittal, which alleged facts from which the conclusion necessarily follows that the mortgage was forged and uttered at the same time, by the same person, and as one transaction. The plea alleged in effect, with other facts, that a person claiming to be Frank L. Hiniker, and the owner of certain land, applied to the Mankato Savings Bank for a loan of $1,000, to be secured by a mortgage on the land; that the bank agreed to make the loan, prepared the mortgage ready for signing, which such person executed, and the bank then and there accepted it, and paid him the money pursuant to such agreement; that the making of the mortgage and the uttering of it were each done by the same person, at the same time, for the sole purpose of securing such loan; and, further, that it was the mortgage so made and uttered which the defendant was charged with uttering by the first indictment, and with forging by the second one.

The state demurred to the special plea on the ground that it did not state facts sufficient to constitute a defense to the indictment. The trial court overruled the demurrer, and, at the request of the state, the defendant consenting, certified the case to this court.

A plea of former acquittal is sufficient whenever it shows on its face that the second indictment is based upon the same single criminal act which was the basis of the indictment upon which the defendant was acquitted. State v. Colgate, 31 Kan. 511, 3 P. 346; Roberts v. State, 14 Ga. 8; Holt v. State, 38 Ga. 187. We have then the question: Does the plea in this case show that the forging of the mortgage and the uttering of it were parts of the same single transaction? Our Penal Code relating to forgery (G.S 1894, §§ 6690, 6702) provides in effect that a person is guilty of forgery who, with intent to defraud, forges an instrument in writing purporting to be the act of another; and, further, that a person who, with such intent, utters a forged instrument, is guilty of forgery in the same degree as if he had forged it. The forging of an instrument and the uttering of it were, prior to the enactment of our Penal Code, separate offenses, and are still where each act is committed...