State v. Weaver

• Decision Date: 21 November 1910
• Citation: 149 Iowa 403,128 N.W. 559
• Parties: STATE v. WEAVER.
• Court: Iowa Supreme Court

149 Iowa 403

128 N.W. 559

STATE

v.WEAVER.

Supreme Court of Iowa.

Nov. 21, 1910.

Appeal from District Court, Hardin County; C. E. Albrook, Judge.

The charge in the indictment was that the defendant “having in his possession a certain false and forged real estate mortgage, and knowing the same to be false and forged, said mortgage being in words and figures following, to wit [[[here follows the copy of the alleged mortgage], did then and there utter and pass the same as true, with the intent then and there to defraud, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Iowa.” The defendant pleaded not guilty, and at the conclusion of the evidence for the state the defendant, declining to offer any testimony, moved the court to direct the jury to return a verdict of not guilty on various grounds, one of which was that the indictment did not allege to whom the forged instrument was uttered and passed, and did not state the particular circumstances constituting the alleged offense of uttering the same. The court overruled defendant's motion for a directed verdict of not guilty, but on its own motion “adjudged that the jury be discharged from a further consideration of the case, and that the indictment be set aside and dismissed because of its failure to allege to whom the uttering of the forged instrument was made, and because of its further failure to state specifically the facts constituting the alleged criminal act of uttering.” From this judgment the State appeals. Reversed and remanded.

Deemer, C. J., and Sherwin, J., dissenting.H. W. Byers, Atty. Gen., Charles W. Lyon, Asst. Atty. Gen., and George W. Ward, Co. Atty., for the State.

McCLAIN, J.

The sole question raised on this appeal is as to the sufficiency of the indictment; and the sole objection relied upon is that the indictment failed to state the name of the person to whom the instrument was uttered and passed or to state that the name of such person was to the grand jurors unknown, or to otherwise designate the facts constituting the alleged uttering. The statute defines the offense as consisting of the uttering and publishing as true any instrument such as is described in the preceding section as an instrument the false making of which constitutes forgery. Code, § 4854. And while the indictment in question uses the words “utter and pass,” instead of the words “utter and publish,” it is not contended that anything more is required to be proved under the allegations made than would be required had the indictment used the exact words of the statute. The offense does not necessarily consist in the actual perpetration of a fraud by the passing of a forged instrument, but it is sufficient if it be offered or held out as genuine with the intent to defraud some person or persons. People v. Brigham, 2 Mich. 550;People v. Caton, 25 Mich. 388;Smith v. State, 20 Neb. 284, 29 N. W. 923, 57 Am. Rep. 832;Johnson v. Commonwealth, 90 Ky. 488, 14 S. W. 492; Rex v. Palmer, Russ. & Ryan, 72; 2 Bishop, New Crim. Law, 605; 2 Russell, Crimes (8th Am. Ed.) 362. And this court has expressly recognized such a definition of the offense, holding that, although the instrument is not actually transferred or disposed of, the crime of uttering is complete if it is offered for the purpose of passing it to another with the representation directly or indirectly made that it is good. State v. Sherwood, 90 Iowa, 550, 58 N. W. 911, 48 Am. St. Rep. 461;State v. Calkins, 73 Iowa, 128, 34 N. W. 777. It may be suggested in passing that the statutory language “utter and publish” corresponds with the common-law definition. See Bishop, New Criminal Law, supra.

As it was not essential at common law and is not essential under the statute that the instrument actually be transferred to or accepted by another as genuine, it would seem in reason that it should not be necessary to allege in the indictment such an actual transfer, and that, therefore, the name of the person to whom the instrument was in fact transferred and passed, if such transfer did take place, need not be alleged, for the offense consists of the publishing as true with the intent to defraud, and not of committing a wrong by the actual transfer to some person thereby defrauded. The forms of indictments for uttering given in the books of precedents are in accordance with this reasoning. 2 Archbold's Crim. Practice & Pl. 534; 1 Wharton, Precedents of Indictment (270); 8 Encyc. of Forms, 742.

The identical objection now made was urged to a similar indictment in Rex v. Holden, Russ. & Ryan, 154, and was, by the court for the consideration of Crown Cases Reserved, composed of the 12 judges of England, held to be not well taken. The authorities in this country seem to generally sustain such form of indictment. Thus in State v. Foster, 30 Kan. 365, 2 Pac. 628, the indictment charged in the language of the statute substantially the same as that found in our statute defining the offense that the defendant did “pass, utter, and publish as true” the instrument described, and the objection was made that it was defective in not containing a statement of the facts constituting the offense in plain language, and the objection was held not to be well taken. The same conclusion seems to be indicated in our own case of State v. Hart, 67 Iowa, 142, 25 N. W. 99. In State v. Tingler, 32 W. Va. 546, 9 S. E. 935, 25 Am. St. Rep. 830, an indictment is set out which charged the defendant with uttering and attempting to employ as true a certain specified writing with the intent to defraud, and the court held objections to it as not sufficient because not naming the person to whom the instrument was uttered not well founded, saying that it was in a form commonly in use in that state. Other cases exactly in point in support of the sufficiency of the indictment in this respect are Commonwealth v. Butterick, 100 Mass. 11, 97 Am. Dec. 65;State v. Adams, 39 La. Ann. 239, 1 South. 455;State v. Gaubert, 49 La. Ann. 1692, 22 South. 930. Among other cases coming to our attention in which the form of the indictment for the crime of uttering is given containing no allegation of the name or description of the person to whom the instrument was uttered, published, or passed we may cite the following: State v. Waterbury, 133 Iowa, 135, 110 N. W. 328;State v. Beasley, 84 Iowa, 83, 50 N. W. 570;State v. Jones, 9 N. J. Law, 357, 17 Am. Dec. 483;Bostick v. State, 34 Ala. 267;People v. Dolan, 186 N. Y. 4, 78 N. E. 569, 116 Am. St. Rep. 521;State v. Stanton, 23 N. C. 424;Owen v. State, 34 Neb. 392, 51 N. W. 971;Commonwealth v. Searle, 2 Bin. (Pa.) 332, 4 Am. Dec. 446. For other similar forms, see 8 Encyc. of Forms, p. 742 et seq. These cases are cited, not as authority on the sufficiency of the indictment in this respect, but as indicating that a form of indictment which does not state the name of the person to whom the instrument was uttered, passed, or published, or the circumstances of such uttering, passing, or publishing, is in common use in nearly all the jurisdictions of this country.

In the case of McClellan v. State, 32 Ark. 609, such an objection has been held good; the court relying solely upon a reference to Mr. Bishop's treatise on Criminal Law and an early case in our own state. Buckley v. State, 2 G. Greene, 162. We have been unable to find in Bishop's Criminal Law the language which the court purports to quote from that work, but the proposition is stated by the author in his Criminal Procedure as follows: “The indictment for uttering should give the name of the person to whom the forged instrument was tendered, if known, or, if not known, state this excuse for the omission.” 2 Bishop, New Criminal Procedure, § 425. And in support of this statement reference is made to the Arkansas case (which had already been decided when this last edition of Mr. Bishop's treatise appeared), the Iowa case which that court also cites, and a case from East's Pleas of the Crown, which relates to passing counterfeit money. See 1 East P. C. 180. These cases and the statement by Bishop as above quoted are cited and followed in Goodson v. State, 29 Fla. 511, 10 South. 738, 30 Am. St. Rep. 135;State v. Murphy, 17 R. I. 698, 24 Atl. 473, 16 L. R. A. 550. Our own case of Buckley v. State, supra, also relates to the passing of counterfeit money, and not to the uttering or publishing of a forged instrument, and the court says that in an indictment for passing counterfeit money the name of the person to whom it was passed should be designated as the one upon whom the offense was committed, not only because he is injured, but because his designation is material as descriptive of the defense, citing Butler v. State, 5 Blackf. (Ind.) 280, which involves an indictment for gaming, and therefore is remotely, if at all, in point. The form of indictment for uttering given in Bishop's Directions and Forms is in accordance with the common-law forms above referred to, except that he says that, if the offense is uttering, then the allegation should be “utter and publish as true,” with this suggestion in parenthesis, “Probably add, to one X,” citing for this suggestion what has already been quoted above from his work on Criminal Procedure. See Bishop's Directions and Forms, § 460. It is apparent therefore, that even Mr. Bishop found no controlling precedent or authority for alleging in the indictment for uttering the name of the person to whom the instrument was uttered or published and a description of him as unknown or otherwise. With reference to our case of Buckley v. State, supra, it may be further said that, while there is more persuasive reason for requiring the statement of the name of the person to whom counterfeit money has been passed than for requiring a like statement in the case of uttering or publishing, the conclusion of the court is not supported by authority. See, for instance, United States v. Bejandio, 1...