State v. Ryan

• Decision Date: 17 October 1900
• Citation: 83 N.W. 865,9 N.D. 419
• Court: North Dakota Supreme Court

83 N.W. 865

9 N.D. 419

STATE OF NORTH DAKOTA v. ANDREW RYAN

Supreme Court of North Dakota

October 17, 1900

Appeal from District Court, Sargent County; Lauder, J.

Andrew Ryan was convicted of forgery, and appeals.

Reversed.

T. A Curtis, E. W. Bowen, and Charles E. Wolfe, for Appellant.

The defendant is not charged with having made the instrument the basis of this accusation, but is charged simply with uttering an instrument which someone else had made, and which the indictment says was falsely made and forged, yet purported to be the act of the person whose name was signed thereto. The defendant could not be convicted in the absence of evidence showing that the instrument was not made by Harris, or if made by him was fraudulently and materially altered after it was made, and the defendant could not, from the language of this indictment, know which of these contingencies he was called upon to meet. The indictment in this regard is not sufficiently definite and certain. Peo. Merriam, 28 Mich 255; State v. Reibe, 7 N.W. 140. No forgery can be predicated upon an instrument which is void on its face. 8 Am. & Eng. Enc. L. 461, 2 East's P. C. 953. Every one is presumed to know the law governing the instrument, which law enters into and forms a part of such instrument, and if the law will render the instrument void, the false making of such instrument is not forgery. Johnson v. State, 23 Wis 504; Peo. v. Shawl, 9 Cow. 778; State v. Lytle, 64 N.C. 255; Peo. v. Harrison, 8 Barb. 560; Howell v. State, 37 Tex. 591; Peo. v. Mann, 75 N.Y. 484; Roode v. State, 5 Neb. 475; Peo. v. Galloway, 17 Wend. 540; Barnum v. State, 15 O. 717. An indictment for forgery must show on its face that the instrument is one which, if genuine, would establish or defeat some claim, impose some duty, create some liability, or work some prejudice to another in his rights. Peo. v. Tomlinson, 35 Cal. 503; Barnum v. State, 15 O. 717; Territory v. DeLena, 41 P. 618; Waterman v. People, 67 Ill. 91. The indictment for forgery must set forth an instrument which, on being described, on its face appears to be naturally calculated to have some legal effect, also extrinsic facts must be offered showing such legal effect. State v. Cook, 57 Ind. 574; State v. Wheeler, 19 Minn. 98; State v. Briggs, 34 Vt. 501; Rollins v. State, 22 Tex.App. 521; Murry v. State, 50 S.W. 521; Hendricks v. State, 26 Tex.App. 176. The commissioners had no authority to pass the resolution set forth in the indictment. The same is contrary to express law and void. § § 1974 and 1899, Rev. Codes. The certificates of officers not authorized or required by law have no more force or effect than the certificate of a private person. Smith v. Lawrence, 2 S.D. 202; Downing v. Brown, 3 Colo. 590; Wood v. Nissen, 2 N.D. 26; Goose River Bank v. Gillmore, 3 N.D. 188. The forgery of a certificate imposing no duty or conferring no right is no offense. Rembert v. State, 53 Ala. 467. There must be both the intention and the power to defraud or the offense is not committed. Dixon v. State, 81 Ala. 61, 1 So. Rep. 69; Williams v. State, 8 So. Rep. 825; Territory v. DeLena, 41 P. 618; Raymond v. Peo. 30 P. 504; Merkel v. Berks County, 81 Pa. 505; State v. Brett, 40 P. 873. The prosecution failed to prove the resolution set forth in the indictment, as laid, and the variance is fatal. Hazlitt v. State, 7 N.W. 115; State v. Fallon, 2 N.D. 510; Sharley v. State, 54 Ind. 188; Sutton v. State, 79 N.W. 154; Robinson v. State, 43 S.W. 526. The judgment should be reversed and the defendant discharged because no prosecution can be founded upon this certificate. Waterman v. Peo. 67 Ill. 91; State v. Wilson, 28 Minn. 52.

P. H. Rourke, S. M. Lockerby, and J. E. Bishop, for respondent.

A variance between the indictment and proof is not material unless it is such as might expose the defendant to the danger of being put twice in jeopardy for the same offense. Abbott's Tr. Bf. 411; Harris v. People, 64 N.Y. 148; Rice on. Crim. Ev. 170. To be the subject of forgery it is not necessary that the instrument should have actual, legal efficacy. It is sufficient that, if genuine, it may have such apparent efficacy, that although its invalidity may be established by extrinsic facts, nevertheless, it may be capable of effecting a fraud and therefore be a subject of forgery. State v. Van Auken, 68 N.W. 457; State v. Johnson, 96 Am. Dec. 158, 13 Am. & Eng. Enc. L. (2d Ed.) p. 1093; Rembert v. State, 25 Am. Rep. 693; State v. Vineyard, 40 P. 173. An instrument valid on its face may be the subject of felonious uttering, although collateral facts may exist that would render it absolutely void if genuine. Peo. v. Rathburne, 21 Wend. 509; Peo. v. Galloway, 17 Wend. 540; State v. Johnson, 96 Am. Dec. 158; State v. Hilton, 35 Kan. 339. An instrument void as being against public policy or ultra vires may be subject to forgery. People v. Monroe, 35 P. 326; People v. James, 110 Cal. 155.

OPINION

YOUNG, J.

The defendant was convicted of the crime of forgery in the fourth degree, and sentenced to confinement in the penitentiary for a period of one year. The only question which we need to consider is the sufficiency of the indictment on which the defendant was tried and convicted. Counsel for defendant attacked it in the trial court on the ground that "it does not state facts sufficient to constitute a public offense," and urges the same objection on this appeal as one of several grounds for asking a reversal. The indictment is as follows: "The Grand Jury of the State of North Dakota, in and for the County of Sargent, upon their oaths present that heretofore, to-wit, on the fifteenth day of June, in the year of our Lord one thousand eight hundred and ninety-nine, at the County of Sargent, in the State of North Dakota, one Andrew Ryan, late of said County of Sargent, and said County of Sargent and state aforesaid, did commit the crime of uttering and publishing as true a falsely made and forged instrument, knowing such instrument to be falsely made and forged, committed as follows: That heretofore, and before the commission of the offense hereinafter mentioned, to-wit, on the thirteenth day of March, in the year A. D. 1899, the County of Sargent was, and still is, one of the duly organized and existing counties in and of the State of North Dakota. That at the village of Forman, the county seat of said Sargent County, on the thirteenth day of March, aforesaid, the duly elected, qualified, and acting board of county commissioners of said Sargent county, in legal meeting assembled, passed, adopted, and published a resolution in the following words and figures, that is to say: 'Be it resolved, that the County of Sargent allow and offer a gopher bounty for the year 1899 for each gopher killed between the first day of April and the first day of July, 1899; that said bounty shall be two (2) cents for each gopher killed, the same to be paid out of the general county fund upon the warrant of the county auditor, provided that the county auditor shall issue such warrant upon the certificate of the township clerk of each township wherein such gophers are killed; that said town clerk certify to the number of tails of such gophers killed which were presented to and destroyed by such town clerk. Dated at Forman, this thirteenth day of March, A. D. 1899.' That such resolution has never been repealed or rescinded. That at all the times in said resolution mentioned, to-wit, between the first day of April and the first day of July, A. D. 1899, both days inclusive, one George A. Harris was the duly elected, qualified, and acting township clerk of the township of Vivian, one of the duly organized and existing civil townships of the County of Sargent, aforesaid. And the grand jurors aforesaid, upon their oaths as aforesaid, do further present that the said Andrew Ryan, at the time and place aforesaid, to-wit, on the fifteenth day of June, in the year A. D. 1899, at the County of Sargent and state aforesaid, and within the jurisdiction of this court, feloniously did utter and publish as true a certain false made and forged instrument, knowing such instrument to be falsely made and forged, purporting to be an official certificate issued by the said George A. Harris, township clerk of the township aforesaid, to the effect that one J. A. Stewart had presented to said George A. Harris, township clerk of the township of Vivian aforesaid, one thousand (1,000) gopher tails, and purporting to be issued by the said George A. Harris, township clerk of the said Vivian township aforesaid, which said falsely made and forged certificate is in the words and figures, that is to say: 'Sargent County, North Dakota. Office of the Town Clerk of Vivian Township. To W. S. Baker, County Auditor: This is to certify that J. A. Stewart has presented to me one thousand (1,000) gopher tails, which have been destroyed by me this day. Dated at Vivian, this twelfth day of June, 1899. George A. Harris, Township Clerk.' That after, and on the fifteenth day of June, 1899, at the county and state aforesaid, said falsely made and forged certificate was by the said Andrew Ryan, then and there knowing such instrument to be falsely made and forged, presented to the said W. S. Baker, county auditor as aforesaid, of Sargent County aforesaid, for payment, with intent to defraud said Sargent County; this contrary to the form of the statute," etc.

The indictment is founded on § 7438 and subdivision 2 of § 7430 of the Revised Codes, which read:

§ 7438. Every person who, with intent to defraud, utters or publishes as true, any forged, altered or counterfeited instrument, or any counterfeit gold or silver coin, the forging, altering or counterfeiting of which is hereinbefore declared to be punishable, knowing such...