State v. McBride

• Decision Date: 08 March 1913
• Parties: STATE v. McBRIDE.
• Court: Washington Supreme Court

130 P. 486

72 Wash. 390

STATE v. McBRIDE.

Supreme Court of Washington

March 8, 1913

Department 2. Appeal from Superior Court, Pacific County; A. E. Rice Judge.

Alex McBride was convicted of forgery in the first degree, and he appeals. Affirmed.

Chas E. Miller, of South Bend, for appellant.

Robt. G. Chambers, of Raymond, for the State.

ELLIS J.

The appellant was convicted of the crime of forgery in the first degree upon an information, the material part of which was as follows: 'The said Alex McBride, on or about the 14th day of January, A. D. 1911, in Pacific county, Washington, then and there being, did then and there feloniously forge a writing, on paper, the said writing on paper being then and there an instrument by which the title of personal property was evidenced, created, acknowledged, and transferred, the same being a request for the payment of money of the tenor following: 'South Bend, Wash., Jan. 14, 1911. No. 16. Pacific State Bank. Pay to E. McBride or order $15.00. Fifteen dollars. Chas. Funk.' And the said Alex McBride did then and there, knowing said writing to be forged and fraudulent, utter the same as true to one Thomas Connors, with the intent to defraud the said Thomas Connors, the said Charles Funk, the said Pacific State Bank, and some other person or persons to the prosecuting attorney unknown.' This information was filed February 28, 1911. The appellant pleaded not guilty. The cause was tried on January 16, 1912. On January 18, 1912, a motion in arrest of judgment was overruled and sentence imposed. No motion for a new trial was ever made.

The testimony developed the following facts: That Connors and his partner, Baker, conducted a pool hall in South Bend; that on the evening of January 14, 1911, the appellant and others were playing at cards in a room back of the pool hall; that late that night the appellant left the hall, was gone for about half an hour, and on his return presented to Connors for cashing a check for $15, purporting to be the check of, and purporting to be signed by, one Chas. Funk; that the appellant then told Connors that he had called Funk from bed, and Funk had written the check for him; that Connors cashed the check, giving the appellant a $10 and a $5 gold piece. Funk testified that he did not write or sign the check, and that it was neither written nor signed with his knowledge or consent; that at the time he had no account with the bank on which the check was drawn, nor had he such an account for at least a year prior thereto. Two bankers of South Bend testified that they were familiar with the handwriting of the appellant, and that, in their opinion, the check in question was written by him. The appellant has made 34 assignments of error. They were all, save 3, directed to the rulings of the trial court in admitting evidence, excluding evidence and offered proof, and to the court's instructions to the jury.

When the first witness was called and before any testimony was taken, the appellant, without withdrawing his plea of not guilty, objected to the reception of any evidence upon the ground of an alleged insufficiency of the information. The overruling of this motion is the basis of the first assignment of error. There was not error in this ruling. We have repeatedly held that a demurrer to the information, or any motion in the nature of a demurrer, may not be entertained pending a plea of not guilty, save the motion in arrest of judgment. The reasons for the rule are well stated in the following decision: State v. Blanchard, 11 Wash. 116, 39 P. 377; State v. Bodeckar, 11 Wash. 417, 39 P. 645; State v. Strange, 50 Wash. 321, 97 P. 233; State v. Philips, 65 Wash. 324, 118 P. 43.

The denial of the motion in arrest of judgment is also assigned as error. It was based on grounds as follows: (1) That the information does not state any offense known to the laws of this state; (2) that it does not substantially conform to the requirements of the Criminal Code; (3) that it charges more than one crime; (4) that the facts charged do not constitute a crime. The first and fourth grounds mean the same thing, namely, that the facts charged do not constitute a crime. Under the second and third was presented the sole question of duplicity. The statute (Rem. & Bal. Code, § 2183), prescribing the grounds for motion in arrest, provides: 'Judgment may be arrested on the motion of the defendant for the following causes: 1. No legal authority in the grand jury to inquire into the offense charged, by reason of its not being within the jurisdiction of the court. 2. That the facts as stated in the indictment or information do not constitute a crime or misdemeanor.' Section 2105 prescribes the grounds of demurrer to the indictment or information, as follows: '1. That it does not substantially conform to the requirements of this Code. 2. That more than one crime is charged. 3. That the facts charged indictment constitute a crime. 4. That the indictment or information contains any matter which if true would constitute a defense or other legal bar to the action.' These sections make it clear that the only question properly raised by the motion in arrest was, Did the information charge a crime? The question of duplicity could only be raised by demurrer or motion to quash in the nature of a demurrer, or by motion to compel an election. It was therefore waived, as we have seen, by the failure to so demur or move prior to the plea of not guilty, and without withdrawing that plea. Such an objection comes too late after verdict. 1 Bishop's New Crim. Proc. §§ 442, 443; Territory v. Heywood, 2 Wash. T. 180, 2 P. 189; State v. Snider, 32 Wash. 299, 73 P. 355. Manifestly, therefore, the only question presented by the motion in arrest was, Did the information charge a crime sufficiently to support the verdict?

We are convinced that the information contains but one count, and charges only one crime, namely, forgery in the first degree. The statute under which forgery in the first degree may be charged is contained in two sections. Rem. & Bal. Code, § 2583 declares: 'Every person who, with intent to defraud shall forge any writing or instrument * * * or any request for the payment of money or delivery of property or any assurance of money or property * * * shall be guilty of forgery in the first degree. * * *' Section 2587 is as follows: 'Every person who, knowing the same to be forged or altered, and with intent to defraud, shall utter, offer, dispose of or put off as true, or have in his possession with intent so to utter, offer, dispose of or put off any forged writing, instrument or other thing, the false making, forging or altering of which is punishable as forgery, shall be guilty of forgery in the same degree as if he had forged the same.' It is obvious that the same crime may be committed in either of the two ways, by actually forging with intent to defraud, or by uttering, offering, disposing of, or putting out as true with intent to defraud. It is equally plain that the one crime may be committed by the same person in both of these ways, when the acts are down with reference to the same instrument and in the same transaction. While the two modes of commission are set out in separate sections, the degree of the crime, when committed in the manner set out in section 2587, can only be ascertained by a reference to section 2583, or the other sections defining the degrees of forgery by the primary act of commission. Section 2587 is therefore not an independent provision, but must be read and construed in connection with some other section, according to the degree of forgery charged. In this instance it must be read in connection with section 2583, defining forgery in the first degree. The effect is the same as if the provisions of section 2587 were repeated as a part of each section defining forgery by the primary act. When so considered, it is clear that the information here involved charges but the one crime, and charges its commission in both of the statutory ways as a part of the one connected transaction continuous in point of time, as shown by the words 'then...