State v. Van Auken

• Decision Date: 07 October 1896
• Citation: 98 Iowa 674,68 N.W. 454
• Parties: STATE v. VAN AUKEN.
• Court: Iowa Supreme Court

98 Iowa 674

68 N.W. 454

STATE

v.VAN AUKEN.

Supreme Court of Iowa.

Oct. 7, 1896.

Appeal from district court, Cerro Gordo county; P. W. Burr, Judge.

The defendant was convicted of the crime of forgery, and from the judgment, which required that he be imprisoned in the state penitentiary at Anamosa, at hard labor, for the term of six months, he appeals. Affirmed.S. G. Van Auken and Cliggitt & Rule, for appellant.

Milton Remley, Atty. Gen., for the State.

ROBINSON, J.

1. The defendant had no opportunity to object to the grand jury until after the indictment was presented. He was then arraigned, and moved to set aside the indictment on the ground that the grand jurors who found it were not the persons whose names were returned by the township officers for the grand jury list, and that they were not the persons who were drawn for the grand jury for the year 1895, in which the indictment was found. A further ground for the motion was that the indorsement on the indictment, “A true bill,” was not signed by a member of the grand jury. The motion was overruled. The facts appear to be that the names returned by the township officers were written as follows: “F. McCormick, Wm. Barragy, H. S. Butz, W. D. Broers, and Wm. G. Helm;” and the names drawn were written: “F. McCormick, Wm. Barragy, S. H. Butz, W. D. Broers, and W. G. Helm.” The persons who acted as grand jurors were Frank McCormick, William Barragy, William G. Helm, Walrick D. Broers, and H. S. Butz. The indorsement, “A true bill,” was signed, “F. McCormick, Foreman of the Grand Jury.” It will be observed that in some cases the given name is set out, while in others letters or initials only are used for the given names. Thus, “F. McCormick” is given as the name of a person returned by the township officers who was drawn as a grand juror, and who signed the indorsement on the indictment, while Frank McCormick is shown to have served as a grand juror. W. D. Broers was returned and drawn as a grand juror, and Walrick D. Broers served. The argument of the appellant in support of the motion is that a single letter cannot be presumed to be the initial of, and to stand for, any particular name, and that F. McCormick cannot be presumed to be Frank McCormick; that Walrick D. Broers cannot be presumed to be W. D. Broers; that a single letter may not be presumed to be a full given name; that an initial letter cannot be properly used in lieu of the full name in legal proceedings; and that a person whose full given name is set out will not be presumed to be the same as one who has the same surname, and the initial letter of whose given name is the same. It is undoubtedly true that there are authorities, especially at common law, which tend, in some degree, to support the argument of the appellant. 16 Am. & Eng. Enc. Law, 128. But it is a matter of common knowledge that many persons use the initials of their given names only, with their surname, in business transactions; and cases are exceptional where persons having two given names set out both in full in ordinary business or other transactions, and it may be safely asserted that it is the general usage not to do so. The same general rules apply when the name of a person is spoken or written by others. The practice of using initial letters of given names is too common to be disregarded, and we know of no reason why a person may not with entire propriety use an initial letter in lieu of his given name in most business transactions. In Oakley v. Pegler (Neb.) 46 N. W. 921, the plaintiff in error sought to defeat a foreign judgment because it had been rendered against “O. R. Oakley” while his full name was Oscar Rodman Oakley. He admitted that his business signature was “O. R. Oakley” and stated that “all business men use their initials.” The court held that the name he customarily used might be regarded as his business name, and that a judgment rendered against him in that name could not be attacked collaterally. The argument in favor of using the full given name is that by so doing the person to whom it belongs is more readily and certainly identified, and that is no doubt true. It would be good policy in many cases, especially where the title to real estate is involved, to use the full names. But no question of that kind is made here. It may be conceded that under ordinary circumstances “F.” will not be presumed to stand for Frank, and that “W. D. Broers” will not be presumed to be Walrick D. Broers, but this case involves facts which authorize the presumption that the persons who served as grand jurors were the ones whose names were returned and drawn for that purpose. The grand jury was drawn under a law which required that the list from which grand jurors were to be drawn should consist of 75 names returned from the several election precincts of the county on an apportionment among them made by the county auditor, and not more than one grand juror could be drawn from any civil township unless the civil townships were fewer than the required number of grand jurors. In this case the names returnedby the township officers, and drawn for the grand jury, and shown by the court records to have been the names of the persons who served as grand jurors, included several in which initial letters were used for given names. The names were the same in each case, excepting that the name “Wm. G. Helm” was returned by the township officers, and is given in the court record, as the name of one of the grand jurors, but the name “W. G. Helm” was drawn from the jury list. It appears that several of the jurors who served had the given names which we have set out. In view of the custom of using initial letters, to which we have referred, it will be presumed, in the absence of a showing to the contrary, that the sheriff who served the precept did so by summoning the persons whose names were given therein, and that the jurors who actually served were the persons named in the precept, and that they were known by the names therein used. It must also be presumed that “F. McCormick” was the form used by the juror Frank McCormick in signing his name. This conclusion finds support in the following cases: State v. Pierce, 8 Iowa, 238; State v. McComb, 18 Iowa, 49; State v. Williams, 20 Iowa, 100; State v. Stanley, 33 Iowa, 532; Byington v. Moore, 62 Iowa, 474, 17 N. W. 644;State v. Arnold (Iowa) 67 N. W. 252. The motion to set aside the indictment was properly overruled.

2. The indictment charges the defendant with the crime of forgery, in language as follows: “The said Lawrence M. Van Auken, on the 15th day of January, in the year of our Lord 1895, in the county aforesaid, did unlawfully and feloniously, and with intent to defraud, falsely alter and forge a certain public record, to wit, the record of the proceedings of the board of supervisors of Cerro Gordo county, and state of Iowa, in which the proceedings of the board of supervisors of said county are recorded by the county auditor as by law provided, and particularly the record of the proceedings of said board of supervisors of said county, made and recorded in supervisors' record book on the 16th day of November, A. D. 1893, in the following words and figures, to wit, ‘The board allowed the auditor $250.00 for hired help for 1893,’ by altering said record of said resolution by erasing the words ‘for 1893’ therefrom, and inserting the words ‘above fees' in their place and stead, making the record of said resolution falsely read as follows, to wit, ‘The board allowed the auditor $250.00 for hired help, above fees,’ contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Iowa.” It is claimed that this contains repugnant provisions, in that the record alleged to have been altered is described as the record of a resolution, but appears to have been merely an entry which shows that an allowance had been made to the auditor. It was not strictly correct to speak of the matter recorded as a “resolution,” but the record alleged to have been changed, and the alteration charged, are fully set out, and the error in describing it was wholly without effect, and immaterial.

3. It is claimed that the indictment does not properly charge that the alteration of the record in question was made with intent to defraud. We do not think the claim is well founded. The indictment charges that the defendant “did unlawfully and feloniously, and with intent to defraud, falsely alter and forge a certain public record.” The record, as it was claimed to have existed before the forgery, was set out. The change made therein was specifically described, and the record, as it appeared after the alteration had been made, was given. It was not necessary to follow that showing by alleging again that the alteration was made with intent to defraud. The charge contained in the first part of the indictment, that the defendant did alter and forge a public record with the intent to defraud, was made with specific reference to the acts which were afterwards described, and there was no occasion to repeat it.

4. It is next claimed that the record in question was not, and could not have been made, the subject of forgery, for the reason that in its original form it was on its face illegal and void. It is not denied that the recorded proceedings of the board of supervisors constitute a public record, which may be the subject of forgery, within the meaning of section 3917 of the Code, but it is said that the board of supervisors did not have the legal right to allow the county auditor $250, or any other sum, for “hired help,” in the year 1893. Section 3798 of the Code, as amended by section 3 of chapter 184 of the Acts of the Eighteenth General Assembly, relates to county auditors, and is as follows: “The total compensation of the...