State v. Murphy

• Decision Date: 07 May 1893
• Citation: 17 R.I. 698,24 A. 473
• Court: Rhode Island Supreme Court
• Parties: STATE v. MURPHY.

24 A. 473

17 R.I. 698

STATE

v. MURPHY.

Supreme Court of Rhode Island.

May 7, 1893.

John J. Murphy, alias John Doe, was convicted of forgery, and petitions for a new trial. Petition granted.

Robert W. Burbank, Atty. Gen., for the State.

Charles C. Muniford, for defendant.

TILLINGHAST, J. The defendant petitions for a new trial on the following grounds, viz.: First, because of erroneous rulings by the court below in matters of law; second, because the verdict was against the evidence and the weight thereof; third, because of newly-discovered evidence; and, fourth, because the defendant did not have a full, fair, and impartial trial. The indictment, omitting the formal part thereof, was in the following form, viz.:

"That John J. Murphy, alias John Doe, of Pawtucket, in said county of Providence, on the fifteenth day of January, in the year of our Lord one thousand eight hundred and ninety-one, without force and arms, at Pawtucket aforesaid, in the aforesaid county of Providence, falsely and fraudulently did make, forge, and counterfeit a certain order and request for the delivery of goods, which said order and request is of the tenor following, that is to say :

Pawtucket, Jan. 14, 91.

Pawtucket Steam & Gas Pipe Co.: Please deliver to bearer:

1 16-in. Stillson wrench.

1 18 " " "

2 3/4 " St. cocks.

3 1"" "

6 3/4x1/4 sur. yds.

Obling. Wm. L. Graham.

379 Main St. E. P. Graham.

— With intent thereby then and there to injure and defraud the said Pawtucket Steam and Gas Pipe Company, a corporation legally created, organized, and located at said Pawtucket, against the form of the statute in such case made and provided, and against the peace and dignity of the state." "And the jurors aforesaid, upon their oaths aforesaid, do further present that said John J. Murphy, alias John Doe, on the day, month, and year last aforesaid, with force and arms, at said Pawtucket, in the county last aforesaid, did have in his custody and possession a certain false, forged, and counterfeit order and request for the delivery of goods, to wit, tools, which said order and request is of the tenor following, that is to say:

Pawtucket, Jan. 14, 91.

Pawtucket Steam & Gas Pipe Co.: Please deliver to bearer:

1 16-in. Stillson wrench,

1 18 " " "

2 3/4 " St. cocks.

8 1 " " "

6 3/4x1/4 sur. yds.

Obling. Wm. L. Graham.

E. F. Graham.

— And that the said John J. Murphy, alias John Doe, did then and there feloniously utter and publish the same as true, with intent thereby then and there to defraud the Pawtucket Steam and Gas Pipe Company and others; he, the said John J. Murphy, alias John Doe, then and there knowing the same to be forged, false, and counterfeit, against the form of the statute in such case made and provided, and against the peace and dignity of the state."

Before the case was opened to the jury in the court of common pleas, the defendant's counsel moved to quash the indictment on the ground that the first count thereof was defective, in that it did not contain the word "feloniously," and that the second count was defective for duplicity, and also because it did not give the name of the person to whom the order in question was supposed to have been uttered. This motion was overruled by the court, to which ruling the defendant' duly excepted. The first question, therefore, is whether this ruling was correct. As to the first objection which the defendant made to the indictment, namely, that the first count thereof did not contain the word "feloniously." we are of the opinion that it was not well taken. We understand the rule of pleading in criminal cases to be that in the absence of any statutory provision as to what constitutes a felony, or as to the form of the indictment, the word "feloniously" should he used in all cases where the offense charged was a felony at the common law, and that in all other cases said word is not essential, but, if used by the pleader, it may be rejected as surplusage. In several of the United States there is a statutory provision that all offenses which are punishable either by death or by imprisonment in the state prison shall be felonies. There is no statute in this state, however, declaring what crimes are felonies and what are misdemeanors, nor has it ever been decided, so far as we are aware, what constitutes a felony. We must therefore resort to the common law in order to determine the question. Felony is ordinarily defined to be an offense which occasions a total forfeiture of either lands or goods, or both, at the common law, and to which capital or other punishment, may be superadded, according to the degree of the guilt. 1 Bish. Crim. Law, 448; 4 Bl. Comm. 94-96; 1 Russ. Crimes, § 42. Of course, it is to be borne in mind that this definition of felony is mainly historical, and shows what it was several centuries ago, while it conveys only a faint conception of what it is now. In fact, there is not, nor ever was, practically any such thing as felony in the United States. For while we speak of certain crimes, such as larceny, robbery, burglary, rape, arson, murder, etc., as felonies, yet it is mainly because we have been taught that at the common law they are so denominated. But when we come to apply the ancient English test of felony, as set forth in the above definition, we find that there is not, strictly speaking, any such crime known to our law. Indeed, the rigor of the common law itself has been so far modified by statute in England that there now remains but very few of the characteristics of the ancient crime of felony. The change in the form of the indictment, however, has not kept pace with the change in the consequences of the crime, so that it is still necessary to allege in all of those cases where the crime was a felony at the common law, and where the statute has not provided what should constitute the offense, or prescribed a form of indictment, that it was done "feloniously." Edwards v. State, 25 Ark. 444, and cases cited; Mott v. State, 29 Ark. 147; Cain v. State, 18 Tex. 387, and cases cited; Bowler v. State, 41 Miss. 570; State v. Gilbert, 24 Mo. 380; Gray's Case, Leigh & C. 365-371; Reg. v. Gray, 9 Cox. Crim. Cas. 417; Mears v. Com., 2 Grant, Cas. 385.

The question, then, which presents itself in this case is whether forgery was a felony at common law. We do not find that it ever was. The definition of forgery at common law as given by Blackstone (4 Comm. 247) is: "The fraudulent making or alteration of a writing to the prejudice of another man's right." As given in 2 East, P. C. 861, which is supported by Bac. Abr. "Forgery," B. and followed in 2 Russ. Crimes, 358, "the counterfeiting of any writing with a fraudulent intent, whereby another may be prejudiced, is forgery at common law." Wharton, in his excellent work on Criminal Law, (volume 1, § 654,) says: "By the common law. forgery is a misdemeanor." "By statutes passed in England and the United States, various kinds of forgery are made felonies. Whether in particular cases the statute has absorbed the offense is a matter of special statutory construction. It may be generally stated that unless the statute in its terms undertakes to be absorptive, establishing a statutory offense coextensive with the offense at common law, forgery may still be pursued as a common-law misdemeanor in cases to which the statute does not reach, in those states where a common-law criminal jurisdiction exists. On the other hand, when the statute in its terms is coextensive with the common law, then the statutory remedy must be exclusively followed; and eminently important is it for the pleader to recollect this in cases where by statute the offense is made a felony." The same author, in giving a form of indictment for forgery at common law,(l Precedents of Indictments and Pleas, 204,) does not use the word "feloniously." The same is true of the form given in 2 Bish. Crim. Proc. § 357. See, also, Train & H. Free. Indict. 223,224. According to 1 Hale, P. C. 682, 683, it appears that by the statute of 5 Eliz. c. 14, forgery was not made a felony unless it was a second offense. It has been held by very high authority that, even in cases where certain crimes are declared by statute to be felonies, if the felonious intent constitutes no part of the crime, that being complete under the statute without it, and depending upon another and different criminal intent, the rule requiring the use of the word "feloniously" can have no application. Thus, in U. S. v. Staats, 8 How. 41, which was an indictment under the act of congress approved March 3, 1823, making the forging of any deed, power of attorney, order, receipt, etc., for the purpose of obtaining or receiving from the United States any sum or sums of money, etc., a felony, it was held that the indictment was sufficient to charge the offense without the use of the word "feloniously." In delivering the opinion of the court Mr. Justice Nelson said: "The general rule is that the charge must be laid in the indictment so as to bring the case within the description of the offense as given in the statute, alleging distinctly all the essential requisites that constitute it. Nothing is left to implication or intendment. Generally speaking, it is sufficient to pursue the words of the act; but if, in pursuing them, there should be any ambiguity or uncertainty in charging the offense, the pleader should regard the substance and legal effect of the enactment; and, when words or terms of art are used in the description that have a technical meaning at common law, these should be followed, being the only terms to express in apt and legal language the nature and character of the crime. In all cases of felonies at common law, and some, also, by statute, the felonious intent is deemed an essential ingredient in...