State v. Sherwood

• Decision Date: 11 May 1894
• Citation: 58 N.W. 911,90 Iowa 550
• Parties: STATE v. SHERWOOD.
• Court: Iowa Supreme Court

90 Iowa 550

58 N.W. 911

STATE

v.SHERWOOD.

Supreme Court of Iowa.

May 11, 1894.

Appeal from district court, Pottawattamie county; A. B. Thornell, Judge.

Defendant was tried and convicted of the crime of uttering a forged instrument, and appeals. Affirmed.H. J. Chambers, for appellant.

John Y. Stone, Atty. Gen., and Thomas A. Cheshire, for the State.

KINNE, J.

1. This case is submitted on a transcript of the record which embraces copies of the indictment, record entries, motion of defendant for instructions, instructions, motion in arrest of judgment and for a new trial, notice of appeal, and the evidence. The indictment charged the defendant with uttering and passing as true a forged instrument. It also contains this averment: “The said above-described note, although bearing date of Sunday, December 18, 1892, was made and executed on what is commonly a week day, all of which was well known to the said John H. Sherwood at and before the time of the making and execution of the same.” It is first contended that there is no evidence showing an uttering of the note. The evidence touching this matter in brief is that defendant, in writing, offered to sell the forged note, and represented that it was given to him and signed by John Van Kirk, whose name appeared thereto as a maker; that afterwards, and in furtherance of procuring a sale, defendant made an offer in person to the same party of the note at a certain discount, and passed the note to the person with whom he was negotiating. The sale was not consummated, because the expected purchaser discovered that the note was forged. We think the testimony clearly shows an offer and tender of the note for sale. Our statute provides: “If any person utter and publish as true (any promissory note) knowing the same to be false, altered, forged or counterfeited, with intent to defraud, he shall be punished,” etc. Code, § 3918. While ordinarily the offense is completed by an actual sale and delivery of the paper, yet this is not always necessary to constitute the offense of uttering forged paper. Mathews v. State, 33 Tex. 102;People v. Brigham, 2 Mich. 550;People v. Caton, 25 Mich. 388;State v. Horner, 48 Mo. 520. The offense of uttering and publishing is proved by evidence of offering to pass the instrument to another person, declaring or asserting, directly or indirectly, by words or actions, that it is good. 3 Greenl. Ev. § 110. The evidence warranted the jury in finding that the defendant uttered and published the instrument as true, knowing that it was in fact false.

2. This note, on its face, purported to have been executed on Sunday, and hence it is said it was void, so that, even if the signature had been genuine, it could not have been of legal efficacy, or the foundation of a legal liability. The statute defining forgery provides: “If any person with intent to defraud, falsely make, alter, forge or counterfeit * * * any promissory note, * * * being or purporting to be the act of another, by which any pecuniary demand or obligation, or any right or interest in or to any property, whatever, is or purports to be created,” etc. Code, § 3917. This court has defined forgery to be the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability. State v. Pierce, 8 Iowa, 231;State v. Thompson, 19 Iowa, 299; State v. Johnson, 26 Iowa, 413. True, it has been broadly stated that there can be no forgery if the paper is invalid on its face, for it then can have no legal tendency to effect a fraud. State v. Johnson, 26 Iowa, 418. It is shown without conflict that the purported maker of this note was not an...