State v. Rose
| Decision Date | 08 December 1897 |
| Docket Number | 10,886--(27) |
| Citation | 73 N.W. 177,70 Minn. 403 |
| Parties | STATE OF MINNESOTA v. F. R. ROSE and Others |
| Court | Minnesota Supreme Court |
The defendant and three others were indicted for the crime of forgery in the second degree. When arraigned in the district court for Ramsey county, defendant interposed a separate demurrer to the indictment on the grounds that more than one offense was charged and that the facts stated in the indictment did not constitute a public offense. The demurrer was overruled. Upon a trial the jury returned a verdict of guilty. From an order denying a motion for a new trial Kelly, J., defendant appealed. Affirmed.
Order affirmed.
T. R Kane, for appellant.
The term "an instrument or writing" as used in the last paragraph of G. S. 1894, § 6692, subd. 2, means a legal writing or written agreement, embodying a promise, a contract or an obligation. Hoag v. Howard, 55 Cal. 564; 1 Bouvier, Law Dict. 815; 1 Rapalje & L. Law Dict. 666; State v. Kelsey, 44 N. J. L. 1, 34; State v Fenly, 18 Mo. 445; 3 Century Dict. 3126; 1 Abbott, Law Dict. 630.
An instrument so incomplete in its form and so uncertain in its terms as not to import on its face a legal liability or obligation cannot be the subject of forgery, unless there exist such facts and circumstances, connected with its inception and origin, as taken together with the instrument would render it effectual in establishing a legal liability to the prejudice of another's right. Carberry v. State, 11 Oh. St. 410; People v. Shall, 9 Cow. 778; Com. v. Dunleay, 157 Mass. 386; Shirk v. People, 121 Ill. 61; Moore v. State, 13 Ohio C. C. 10; Com. v. Butler (Ky.) 37 S.W. 840; Clarke v. State, 8 Oh. St. 630.
The instrument set forth in the indictment embodies in its terms, and imports upon its face, neither a promise, an agreement nor an obligation to any person or persons that could be determined by an inspection of said instrument, and is therefore insufficient as a basis upon which to predicate the charge of forgery. 2 Bishop, Crim. Law (4th Ed.) §§ 503-506; People v. Shall, supra; Carder v. State, 35 Tex. Crim. App. 105; Shirk v. People, supra; Com. v. Dunleay, supra; Carberry v. State, supra; Rex v. Jones, 2 East, P. C. 991; People v. Harrison, 8 Barb. 560; People v. Parker (Mich.) 72 N.W. 250.
If an instrument is of such a character as not to import a legal liability on its face, then to make it the subject of forgery the indictment must allege such facts and circumstances as will, when taken in connection with such instrument, invest it with apparent legal force and enable the court judicially to see that the writing has a capacity to defraud. Barnum v. State, 15 Ohio 717; King v. State, 27 Tex. Ct. App. 567; 1 Wharton, Crim. Law (8th Ed.) § 740; 2 Bishop, Crim. Law (7th Ed.) § 545; Clarke v. State, supra; Com. v. Ray, 3 Gray, 441; Carberry v. State, supra; People v. Tomlinson, 35 Cal. 503.
The indictment fails to conform to the requirements of the statute in stating the acts constituting the offense charged, and fails to state any circumstances in connection with the instrument claimed to have been forged, which, taken in connection with it, would give it any apparent legal effect, and is therefore insufficient. Stowers v. Com., 12 Bush, (Ky.) 342; Com. v. Williams, 13 Bush, (Ky.) 267; Regina v. Radford, 5 Brit. Cr. Cas. 60; Com. v. Bowman, 96 Ky. 40.
To justify and to sustain a conviction of the crime of forgery claimed to have been committed by the uttering of a forged instrument, the state must not only prove: (1) That the instrument was uttered by some person other than the person who purports to have signed it, or that said instrument had been materially altered, after the genuine signature had been affixed, by some person other than the person signing the same. (2) That it was uttered by the person charged, with full knowledge of the facts and with intent to defraud. But it must go further, and prove by the best evidence of which the case in its nature is susceptible, that the signature affixed to said forged instrument, or the material alteration made, was done without the consent, authority, privity or acquiescence of the party purporting to be bound thereby. People v. Whiteman, 114 Cal. 338; People v. Mitchell, 92 Cal. 590; People v. Lundin, 117 Cal. 124; Leeper v. State, 27 Tex. Ct. App. 694; Romans v. State, 51 Oh. St. 528.
In a prosecution for forgery committed by the uttering of a forged instrument, it is error to admit in evidence, to show defendant's intent in passing the check, other instruments found on his person or passed by him about the same time, without proof that they also were forged. People v. Altman, 147 N.Y. 473; People v. Whiteman, supra. Circumstantial evidence alone will not warrant a conviction when it does not exclude every reasonable hypothesis except that of defendant's guilt. Finlan v. State (Tex.) 13 S.W. 866.
H. W. Childs, Attorney General, S. A. Anderson, County Attorney, and F. W. Zollman, Assistant County Attorney, for the State.
The question is not, as counsel contends, whether the instrument at the time of its execution was given as an evidence of debt, but would it, at the time it was passed, be or purport to be evidence of such debt, or does it falsely assert as a fact a matter of no importance even if true. For failure to observe this distinction, counsel has fallen into an argument which leads to ridiculous conclusions. By his reasoning it would not be forgery to fill out a blank note bought of a stationer and sign the stationer's name, if the stationer had been paid for the blank notes purchased, because then the contractual relation between stationer and writer had ceased.
It is not error to admit in evidence other forged instruments passed by defendant. 2 Abbott's Crim. Brief, 352, and cases cited. The intent to defraud existed. 3 Rice, Cr. Ev. § 488. It is both the English and the American rule that any evidence which tends to show an unauthorized filling in of an instrument is pertinent. 3 Rice, Cr. Ev. § 491.
Defendant and three other persons were accused by an indictment found against them of the crime of forgery in the second degree, committed by uttering, publishing, and putting off as true, with intent to defraud, a certain false and forged written instrument. G. S. 1894, § 6702. A demurrer was interposed in defendant's behalf and overruled. Upon a separate trial he stood convicted, and this appeal is from an order denying his motion for a new trial. The demurrer was somewhat novel, for, as the first ground therefor, it was urged that more than one offense was charged, while, as a second ground, it was insisted that no offense at all was charged, because the facts stated did not constitute a public offense. Upon the argument here counsel has wholly relied upon the second ground.
The forged instrument, as set out in the indictment, was in the following words and figures, the italics being ours:
Across the left side of these words appear the following:
Written on back:
And it was this instrument which had been uttered, published and put off as true by defendant and the other persons named with intent to defraud, according to the indictment.
Recognizing that the legal efficacy of this writing depended upon special or extrinsic facts, and for the purpose of supplying these facts, there was set out in the indictment a full history of the transaction out of which it was alleged the writing originated. Stated briefly, these facts were that the four persons named in the indictment as defendants, doing business together under the name of National Publishing Company and other names specified, in furtherance of an intent then and there had and entertained by each to cheat and defraud, contracted and agreed with the St. Paul Foundry Company to insert its name and address in a book called the "National Commercial Register," for which the foundry company agreed to pay two dollars, whereupon and on May 1, 1896, the foundry company and the defendants, doing business as said National Publishing Company, signed and mutually delivered two papers, the foundry company signing and delivering one and the defendants signing and delivering the other. The papers so signed and delivered were set out in full in the indictment. That alleged to have been signed and delivered to defendants by the foundry company was in these words and figures, a part of which we put in italics:
While the other, signed and delivered by defendants to the foundry company, was in the following words and figures:
To continue reading
Request your trial