State v. Swensen

• Decision Date: 03 July 1905
• Citation: 81 P. 379,13 Idaho 1
• Parties: [*] STATE, Respondent, v. GEORGE SWENSEN, Appellant
• Court: Idaho Supreme Court

81 P. 379

13 Idaho 1 v. GEORGE SWENSEN, Appellant

Supreme Court of Idaho

July 3, 1905

FORGERY-WHAT CONSTITUTES-FRAUDULENT INTENT-GUILTY KNOWLEDGE IN UTTERING FORGED INSTRUMENT-MAKING AND UTTERING BOTH CHARGED IN ONE COUNT.

1. To constitute forgery in this state the instrument or information must allege that the alleged wrongful act was done with intent to defraud another (Rev. Stats. 7028).

2. An information which charges that defendant "did willfully unlawfully, feloniously and falsely forge and utter a bank check," and "did then and there utter the said bank check as true and genuine with intent to defraud the said R.," is fatally defective, in that the part charging the making of the instrument fails to allege that the same was done "with intent to defraud another," and is also defective in that the part charging the uttering of the bank check fails to allege that the check was uttered "knowing the same to be false, altered, forged or counterfeited."

3. Such information gains no additional strength when its charging parts are joined together in one count and taken as a whole where each separate charge is in itself defective and insufficient.

(Syllabus by the court.)

Appellant was tried in the district court of Bingham county found guilty of forgery and sentenced to a term in the state penitentiary, and appealed from the judgment. Reversed.

Reversed and remanded, with instructions.

Briggs & McCutcheon, for Appellant.

The pleader in the information has attempted to lay two charges in the same count: First, forgery under the statute by writing a check; second, forgery under the statute by uttering a check. At the same time he charges that both were accomplished by writing. Forging a check by writing is one offense, and forgery by uttering a check is another offense, both being made offenses under our statute. It is error to render judgment of conviction "for forgery as charged in the information," without designating the count upon which the verdict is found, and especially so when one count must fall for want of allegations in the information sufficient to support it. (People v. Eppinger, 114 Cal. 350, 46 P. 97.)

An indictment charging forgery, but which failed to allege that it was done with intent to defraud, is fatally defective. (People v. Turner, 113 Cal. 278, 45 P. 331; People v. Mitchell, 92 Cal. 563, 28 P. 597; People v. Smith, 103 Cal. 563, 37 P. 516; State v. Gavigan, 36 Kan. 326, 13 P. 554; State v. Warren, 109 Mo. 432, 19 S.W. 191; Drake v. State, 19 Ohio St. 211.)

When one part of an information charging the passing of a forged instrument is fatally defective, such information gains no additional strength when its charging parts are joined together and taken as a whole. (People v. Mitchell, 92 Cal. 563, 28 P. 597.)

J. J. Guheen, Attorney General, Edwin Snow, and F. S. Wettach, for the state.

Both the making of the forged instrument and the uttering of the same may be charged in a single count of the indictment, and may constitute one offense. (People v. Shotwell, 27 Cal. 394; People v. Frank, 28 Cal. 513.)

That is what has been done in the case at bar; it charges the whole series of acts connected with the check in one count as constituting the crime of forgery. There is only one charge and one count, which marks this case off clearly from cases cited by appellant. The charging part of the information reads: "Did forge and utter." Both said acts are charged together in one count as constituting one crime.

An offense need not be charged in the exact language of the statute, "but other words conveying the same meaning may be used." (Rev. Stats., sec. 7685.)

Ordinary and concise language, and such as will enable a person of ordinary understanding to know what is intended, is sufficient. (Rev. Stats., sec. 7686.)

Technical defects in an information which do not tend to the prejudice of a substantial right of the defendant do not make it insufficient. (Rev. Stats., sec. 7687.)

STOCKSLAGER, C. J. Ailshie, J., concurs. SULLIVAN, J., Dissenting.

OPINION

STOCKSLAGER, C. J.

The county attorney of Bingham county filed his information, charging that, "George Swensen, on or about the 1st day of November, 1904, at the county of Bingham, state of Idaho, and prior to filing this information, did willfully, unlawfully, feloniously and falsely forge and utter a bank check which was then and there signed in blank by one Evelyn Richards, to wit: A check on the State Bank of Idaho Falls, Bingham County, Idaho, and which said check he, the said George Swensen, did willfully, unlawfully, falsely and feloniously forge and utter by writing in the body of the check the words and figures, to wit: George Swensen, twenty-five ($ 25.00) between the words, 'pay to the order of' and the word 'dollars,' and did then and there utter the said bank check as true and genuine with intent to defraud the said Evelyn Richards."

Thereafter, and on the third day of April, 1905, the defendant being in open court with his counsel, the information was read to him and he was given until the next morning to plead, and on the next morning, to wit, on the fourth day of April, he asked that the plea of not guilty be entered in his behalf. Thereafter, Briggs & McCutcheon, counsel for defendant, filed their demurrer to the above information: "First, that the information does not substantially conform with the provisions of sections 7677, 7678, 7679 of the Revised Statutes of Idaho; second, that more than one offense is charged in the information in this, that the defendant is charged with forging and uttering the check in question for the reason that the facts stated do not constitute a public offense." This demurrer was overruled by the court. Thereafter a jury was impaneled, a trial had and a verdict rendered, to wit: "We, the jury, duly sworn and impaneled in the above-entitled case, find the defendant guilty of forgery, as charged in the information." Thereafter, and on the tenth day of April, 1905, counsel for appellant moved the court for an order in arrest of judgment on the following grounds, to wit: "First, that the county attorney's information against said defendant does not substantially conform to the provisions of sections 7677, 7678 and 7679 of the Revised Statutes of Idaho; second, that more than one offense is charged in the county attorney's information filed herein, and for further reason that the facts stated did not constitute a public offense."

On April 15, 1905, after having heard argument of counsel on the above motion, the court rendered its decision and ordered that said motion be overruled. On the twenty-fourth day of April, 1905, the court passed sentence upon the above defendant, sentencing him to a term of one year in the penitentiary of the state of Idaho, at hard labor. On the same day counsel for appellant gave notice of their intention to appeal to the supreme court of the state of Idaho, from the judgment of conviction, and also from the order denying defendant's motion in arrest of judgment entered on the fifteenth day of April, 1905. This prosecution is based on section 7028 of the Revised Statutes of Idaho, which, among other things, says: "Every person who, with intent to defraud another, falsely makes, alters, forges or counterfeits any check, is guilty of forgery." and further on in the section it is provided that any person who "utters, publishes, passes or attempts to pass as true and genuine, a false, forged or counterfeited check, knowing the same to be false, altered, forged or counterfeited, with intent to damage or defraud any person, is guilty of forgery."

It is very earnestly insisted by counsel for appellant that the court erred in overruling their motion in arrest of judgment, claiming that the information charges two offenses; First, forgery, under the statutes, by writing a check; second, forgery, under the statutes, by uttering a check, and at the same time charges that both were accomplished by writing. They further contend that forging a check by writing the same is one thing and one offense, and committing forgery by uttering the check is another thing and another offense, both being made offenses under our statutes.

Our attention is first called to People v. Eppinger, 114 Cal. 350, 46 P. 97. It seems that defendant was convicted under an indictment for passing and publishing a fictitious check with intent to defraud, and which also charged a prior conviction for petit larceny. A verdict of guilty was returned by the jury, as to making and passing a fictitious check, but the verdict was silent as to the prior conviction for petit larceny.

In the opinion the court quotes from People v. Johnson, 71 Cal. 384, 12 P. 261, as follows: "The clerk has no power to enter and it is at least error in the court to direct a judgment declaring that the defendant has been convicted of one offense when in fact he has been convicted of another and distinct offense. The entry of judgment declaring that the defendant has been convicted of an...