State v. Leonard

• Decision Date: 15 December 1914
• Citation: 73 Or. 451,144 P. 681
• Parties: STATE v. LEONARD.
• Court: Oregon Supreme Court

144 P. 681

73 Or. 451

STATE v. LEONARD.

Supreme Court of Oregon

December 15, 1914

On rehearing.

For former opinion, see 144 P. 113.

Guy C. H. Corliss, J. P. Winter, and M. J. Barrett, all of Portland, for appellant. R. F. Maguire, of Portland (W. H Evans, Dist. Atty., and John A. Collier, both of Portland, on the brief), for the State.

RAMSEY J.

The defendant was indicted for the crime of obtaining and attempting to obtain, by false pretenses, with intent to defraud, the signatures of two persons to a deed the false making of which is and would be forgery. The indictment is based on section 1964, L. O. L., which is as follows:

"If any person shall, by any false pretenses or by any privy or false token, and with intent to defraud, obtain, or attempt to obtain from any other person, any money or property whatever, or shall obtain or attempt to obtain with the like intent, the signature of any person to any writing the false making whereof would be punishable as forgery, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than five years."

The defendant was convicted of the crime for which he was indicted as stated supra, and this conviction was affirmed by this court on October 13, 1914. The instrument to which he obtained the two signatures was a deed of conveyance of land and the signatures so obtained were those of M. J. Denny and his wife. He now asks for a rehearing mainly on two grounds. He contends: First, that he could not be guilty of the crime charged, unless the said deed was delivered; and, secondly, that the evidence of delivery of said deed was insufficient to warrant the jury in finding that there was a delivery thereof.

1. We will consider, first, the contention that the delivery of the deed to which he obtained the signatures is necessary to constitute the crime charged. The crime of which the defendant was convicted is closely related to forgery. The writing to which the signature is obtained must be one "the false making of which would be punishable as forgery." A deed of conveyance is such a writing. If an instrument that is forged is void on its face, its fabrication is not a crime. It is sufficient, however, if, on its face, it is apparently legal.

In volume 2 of his work on Criminal Law (11th Ed.) § 885, Dr. Wharton says:

"To sustain an indictment for forgery it is generally necessary that the instrument alleged to be forged should be one which would expose a particular person to legal process. Apparent legal efficiency, however, is enough. It is not necessary that such suit should have in it the elements of ultimate legal success. It is enough if the forged instrument be apparently sufficient to support a legal claim," etc.

In this case the deed was in due form, signed and sealed by the grantors, attested by two witnesses, and properly acknowledged before a notary public and certified. On its face it was a complete and valid deed of conveyance. If the defendant had forged the names of the grantors to said deed with fraudulent intent, he would have been guilty of the crime of forgery, because the deed was, upon its face, a complete and valid instrument. Uttering a fabricated instrument is not necessary to constitute the crime of forgery.

In section 858, vol. 2 (11th Ed.) Wharton's Criminal Law, the author says:

"Forgery is making a false suable document with intent to defraud. The offense is consummated by the making of a false document, on which suit might be brought, with intent to defraud, without any uttering."

In 13 Am. and Eng. Enc. L. (2d Ed.) p. 1085, it is said:

"As the offense (forgery) consists in the mere intention, it is not necessary that any one should have been actually injured or defrauded by the forged writing. It is enough that it may probably or possibly be done. No uttering is necessary to constitute the offense."

In 2 Russell on Crimes (9th Ed.) p. 709, the author says:

"In the first place, however, it should be observed that the offense of forgery may be complete, though there be no publication or uttering of the forged instrument. For the very making with a fraudulent intention, and without lawful authority, of any instrument which, at common law or by statute, is the subject of forgery is of itself a sufficient completion of the offense before publication; and though the publication of the instrument be the medium by which the intent is usually made manifest, yet it may be proved as plainly by other evidence. Thus in a case where the note which the prisoner was charged with having forged was never published, but was found in his possession at the time he was apprehended, no objection was taken to the conviction, on the ground of the note never having been published; there being in the case circumstances sufficient to warrant the jury in finding a fraudulent intention."

In State v. Fisher, 65 Mo. 437, 438, the defendant was indicted for forging a deed of conveyance, and, on appeal, the court quoted the forging passage from Russell on Crimes, and said, inter alia:

"It is the felonious making of the false instrument as true in fact which constitutes the crime of forgery; consequently it was not necessary for the indictment to aver that the instrument would have conveyed the land if genuine. 'The question is whether, upon its face, it will have the effect to defraud those who may act upon it as genuine, or the person whose name is forged."'

In Keeler v. State, 15 Tex.App. 111, the syllabus is in part:

"In order to constitute forgery, and to sustain a conviction therefor, it is not necessary that the forged instrument shall have been passed in fact, and goods or money obtained upon the same."

In Commonwealth v. Ladd, 15 Mass. 526, 527, the court says:

"The objection to the indictment is that it contains no averment that the paper alleged to be forged was presented or delivered to any one, as a true or genuine acquittance or discharge for goods delivered in consideration thereof. This is not necessary at the common law, or under our statute. The false making, with intent to defraud, is the gist of the offense."

In King v. Crocker, 2 Leach's Crown Cases, 987, a part of the syllabus is:

"A person may be convicted of forging with intent to defraud, although the note was found in his custody when apprehended, and never in fact uttered by him."

We conclude that, when a person is charged with the crime of forging a deed of conveyance, it is not necessary to prove that the deed was delivered. As stated by Mr. Russell, supra:

"The very making with a fraudulent intention, and without lawful authority of any instrument which, at common law or by statute, is the subject of forgery is of itself a sufficient completion of the offense before publication."

2. The defendant is charged with the crime of obtaining the signatures of M. J. Denny and his wife to a deed of conveyance, by false pretenses, with the intent to defraud, etc.

Section 1964, L. O. L., supra, makes it a crime for a person, by false pretenses, and with intent to defraud, to obtain the signature of a person to any writing the false making of which is punishable as forgery. We have seen supra that the false making of a deed of conveyance that appears on its face to be complete and valid is punishable as forgery, if made with fraudulent intent, although it may not have been delivered or used in any way. This being so, it necessarily follows that to obtain the signature to a deed of conveyance, by false pretenses, and with the intent to defraud, constitutes the crime of which the defendant was convicted, although said deed of conveyance may not have been delivered. The crime of forging a deed is complete when the instrument is fabricated with the intent to defraud, and delivery of the deed is not a necessary ingredient of that crime, as the uttering of a forged note or bill is no part of the crime of forging a note or a bill. So the obtaining of signatures to a deed of conveyance by false pretenses, and with the intent to defraud, is consummated as soon as the signatures are so obtained, and a delivery of the deed is not a necessary element of...