Stewart v. State

• Decision Date: 01 March 1888
• Parties: Stewart v. State.
• Court: Indiana Supreme Court

113 Ind. 505

16 N.E. 186

Stewart

v.State.

Supreme Court of Indiana.

March 1, 1888.

Appeal from circuit court, Grant county; Robert T. St. John, Judge.

Prosecution upon affidavit and information against Travis Stewart, for forgery. Appeal from judgment of conviction.

Marsh & Brownlee, for appellant. S. W. Cantwell, H. J. Paulus, and Atty. Gen. L. T. Michener, for appellee.

Howk, J.

In this case Travis Stewart, defendant below and appellant here, was prosecuted upon affidavit and information for the crime of forgery, as the same is defined in the first part of section 2206, Rev. St. 1881. Upon his arraignment and plea of not guilty, the issues joined were tried by a jury, and a verdict was returned finding defendant guilty as charged, and assessing his punishment at a fine in the sum of $10, and imprisonment in the state prison for the term of two years. Over his motion for a new trial the court rendered judgment against him in accordance with the verdict. By his assignment of errors, defendant calls in question here, for the first time, the sufficiency of the facts stated in the affidavit and information herein to constitute a public offense. In such affidavit and information it is charged substantially that defendant, on the 18th day of February, 1887, at Grant county, in this state, did then and there unlawfully, feloniously, falsely, and fraudulently make, forge, and counterfeit a certain order for the payment and delivery of property, which false, forged, and counterfeit order then and there, and since, was of the following tenor, to-wit: “ Halls and Davisons: Please let this boy have a soot of cloth. [Signed] Mrs. Wilson. And let him have a cap, too.” That the words “Halls and Davisons,” as used in such order, then and there meant, and were by defendant then and there intended to mean, one Levi Hall and one Levi Davison, who were then and there engaged as partners in the sale of men's and boys' ready-made clothing and caps, in the town of Marion, in Grant county, under the firm name of Hall & Davison, as defendant then and there well knew; that the words “this boy” and the word “him,” as used in such order, then and there meant, and were, by defendant, then and there intended to mean, said defendant; that the letters and words, “Mrs. Wilson,” as used in such order, then and there meant, and were, by defendant, then and there intended to mean, one Kezia Wilson, who was then and there, and since, a resident of such town of Marion, in Grant county; that said false, forged, and counterfeit order then and there meant, and was, by defendant, intended to mean, that said firm of Hall & Davison should sell and deliver to defendant a suit of ready-made clothes and a cap, and that said Kezia Wilson would pay said firm the value of such clothes and cap; that defendant then and there forged such order as aforesaid, with intent then and there and thereby unlawfully, feloniously, falsely, and fraudulently to prejudice, damage, and defraud the said Kezia Wilson, contrary to the form of the statute, etc. The second count of the affidavit and information is predicated upon defendant's alleged forgery of the same written order, and charges substantially the same extrinsic facts in relation thereto as the first count thereof, the substance of which we have given. But such second count differs from the first count in this: that it is charged in the second count that defendant forged such order as aforesaid, with intent then and there and thereby unlawfully, feloniously, falsely and fraudulently to prejudice, damage, and defraud said Levi Hall and Levi Davison, contrary to the form of the statute, etc.

In discussing the alleged insufficiency of the facts stated in the affidavit and information herein to constitute a public offense, the first point made by defendant's learned counsel is that such affidavit and information were insufficient because the written order for the alleged forgery, of which defendant is now here prosecuted, shows upon its face that “it is not for the payment of money, or for the delivery of property of any value.” Counsel say: “The information does not charge or allege that the property to be delivered under the order was of any value, nor does it charge that defendant received, under such order, any property of value, nor that he offered such order for any particular property of value.” This objection to the sufficiency of the affidavit and information is not authorized by any provision of our statute defining the crime of forgery, or by any rule of criminal pleading prescribed by our Criminal Code. Under our statute, whoever falsely makes, forges, or counterfeits “any order * * * for the payment of money or property, * * * or any other instrument of writing, with intent to defraud any person, * * * shall be imprisoned in the state prison,” etc. Section 2206, supra. Under this statutory definition of the crime of forgery, it is certain, we think, that the value of the property which defendant sought to obtain as the fruits of his crime was “not of the essence of the offense.” In such case our Criminal Code expressly provides that “no indictment or...