Wells v. Territory

• Decision Date: 09 December 1908
• Citation: 98 P. 483,1 Okla.Crim. 452,1 Okla.Crim. 469,1908 OK CR 38
• Parties: WELLS v. TERRITORY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

98 P. 483

1 Okla.Crim. 452, 1 Okla.Crim. 469, 1908 OK CR 38

WELLS v. TERRITORY.

Court of Criminal Appeals of Oklahoma

December 9, 1908

Syllabus by the Court.

Under the provisions of Code Cr. Proc. § 224 (Wilson's Rev. & Ann. St. 1903, § 5360), providing that: "An indictment must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses accused may be guilty of the different offenses may be set forth in separate counts in the same indictment, and the accused may be convicted of either offense"-an indictment is bad for duplicity that charges two distinct offenses in one count-that is, the uttering of a check knowing it to be forged, and the forging of the indorsement thereon and then uttering the same-and a demurrer thereto should be sustained.

[Ed Note.-For other cases, see Indictment and Information, Cent Dig. § 339; Dec. Dig. § 125. ^[*]]

Section 482, Code Cr. Proc. (Wilson's Rev. & Ann. St. 1903, § 5618), provides that: "On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." Where the indictment charges that the check was delivered to Katz Bros., a firm composed of Jacob Katz and Isaac Katz, partners, doing business under the firm name of Katz Bros., if the check was, in fact, passed to Katz Bros., a corporation, doing business under the corporate name of Katz Bros., of which corporation Jacob Katz and Isaac Katz were stockholders and officers, such variance is not material.

[Ed Note.-For other cases, see Criminal Law, Dec. Dig. § 1165. ^[*]]

To constitute the offense of uttering a forged check, there must be an intent to cheat and defraud, and a knowledge of the falsity of the instrument.

[Ed. Note.-For other cases, see Forgery, Cent. Dig. § 6; Dec. Dig. § 5. ^[*]

For other definitions, see Words and Phrases, vol. 8, pp. 7251, 7252.]

Under a statute defining the offense of uttering forged instruments knowing them to be forged, it is error to instruct the jury that they should find that defendant had knowledge of the forgery. "If he had notice of any suspicious facts or circumstances which were sufficient to put a reasonably prudent and cautious person upon inquiry, which, if followed up, would have led to knowledge of its forgery, then he would be chargeable with notice of the character of the check."

[Ed. Note.-For other cases, see Forgery, Cent. Dig. § 6; Dec. Dig. § 5. ^[*]]

Guilty knowledge that an instrument is forged may be found if the jury is satisfied from the facts and circumstances shown by the testimony that the defendant had reason to believe it was forged; but the inference is for the jury, and does not follow of necessity.

[Ed. Note.-For other cases, see Forgery, Dec. Dig. § 47. ^[*]]

Error from District Court, Payne County; before Justice Burford.

Moses Wells was convicted of forgery, and brings error. Reversed and remanded.

Plaintiff in error, Moses Wells, hereinafter referred to as "the defendant," was prosecuted by indictment for the crime of forgery, in the district court of Payne county, Okl. T., at the April term, 1906, which indictment, omitting the formal parts, reads as follows:

"Territory of Oklahoma vs. Moses Wells. Indictment. Of the April term of the district court of the first judicial district of the territory of Oklahoma, within and for Payne county, in said territory, in the year of our Lord, one thousand nine hundred and six, the grand jurors, having been first duly chosen, selected, impaneled, sworn and charged to inquire of the offenses against the laws of the territory of Oklahoma, committed within said county, in said territory of Oklahoma upon their oath aforesaid, in the name and by the authority of the territory of Oklahoma, do find and present: That at and within said Payne county, in said territory, on the twenty-fifth day of July, in the year of our Lord one thousand nine hundred and five, Moses Wells, late of the county aforesaid, on the twenty-fifth day of July, in the year of our Lord one thousand nine hundred and five in the county of Payne and territory of Oklahoma aforesaid, then and there being, did then and there unlawfully and feloniously sell, exchange and deliver to Katz Brothers, a firm composed of Jacob Katz and Isaac Katz, partners, doing business under the firm name of Katz Brothers, for the consideration of about thirteen dollars of good and lawful money of the United States and of the value of about thirteen dollars, the exact value and description of which is to the grand jurors unknown, and various articles of clothing, goods, wares and merchandise of about the value of eight dollars, the exact description and value of which is to the grand jurors unknown; a forged and counterfeited check of the tenor, purport and effect following: 'Billings, Oklahoma, July 18, 1905. No. 8. Citizens' Bank of Billings: Pay to Paul Brown, or bearer, $21.00. Twenty-one Dollars. H. Biffer. (Shadinger Ptg. Co. Abilene, Kan.)'-which instrument had endorsed on the back thereof, 'Paul Brown,' with the felonious intent to have the same uttered and passed, and he, the said Moses Wells, before delivering said forged and counterfeited check to Katz Brothers, wrote and indorsed on the back thereof the name 'Paul Brown,' and he, the said Moses Wells, at the time he so sold, exchanged and delivered the said forged and counterfeited check to said Katz Brothers, knew the same to be forged and counterfeited, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the territory of Oklahoma."

To this indictment the defendant entered a general demurrer, which was, by the court, overruled, to which ruling of the court the defendant excepted. The case coming on for trial by a jury, the territory offered its evidence and rests. Whereupon the defendant moved the court to direct a verdict of not guilty, for the reasons: First, that the evidence offered by the territory is not sufficient to sustain a verdict of guilty; second, that there is a fatal variance between the allegations of the indictment and the proof offered in the case-which motion was, by the court, overruled, and the defendant excepted. Evidence was then introduced by the defendant and the territory, and the defendant renewed his motion to direct a verdict, which motion was overruled, and exception taken. The court instructed the jury, arguments were made by counsel, and the jury retired to deliberate, and thereafter returned into court their verdict, which was a general verdict of guilty. Motion for new trial was regularly made, and on the 23d day of April, 1906, the court overruled said motion; to this the defendant duly excepted. The court then sentenced defendant to confinement in the territorial penitentiary for a term of two years, to all of which the defendant duly excepted, and gives notice of an appeal, which appeal was duly perfected to the Supreme Court of the territory of Oklahoma. Upon the admission of Oklahoma as a state, the cause was transferred to the Supreme Court of Oklahoma. Under the provisions of the act creating the Criminal Court of Appeals, the cause was transferred to, and is now before, this court for review.

Lowry & Lowry, for plaintiff in error.

W. O. Cromwell, Don C. Smith, J. H. Kline, and W. C. Reeves, Asst. Atty. Gen., for the Territory.

DOYLE J.

The first assignment of error relied on by the defendant to reverse this case is the overruling of the defendant's demurrer to the indictment. The third ground of said demurrer is as follows: "(3) That said indictment upon its face attempts to charge more than one offense against the laws of the territory of Oklahoma." Section 22 224, Code Cr. Proc. (Wilson's Rev. & Ann. St. 1903, § 5360), prescribes that an indictment must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment, and the accused may be convicted of either offense.

We believe the indictment is bad for duplicity, in charging two distinct offenses in one count; that is, the uttering of the check, knowing it to be forged, and the forging of the indorsement thereon, and then uttering the same. The offenses are distinct, arising upon different acts, and each constitutes the offense of forgery in the second degree. Under the foregoing provisions of the Code, it was necessary to set forth the separate counts, the uttering and the selling or exchanging of said check, knowing it to be forged and the forging of the indorsement thereon, and the selling, exchanging, and delivery with the forged indorsement. It is a general rule that when a statute makes it an offense to do some one or another act, naming them disjunctively, either of which would constitute one and the same offense, the acts may be charged conjunctively in one count as constituting a single offense, and it has been held that: "Where the making and uttering of a fictitious instrument is one continuous transaction, they may be properly charged in one count as a single offense." 19 Cyc. p. 1410; People v. Dole, 122 Cal. 486, 55 P. 581, 68 Am. St. Rep. 50; Selby v. State, 161 Ind. 667, 69 N.E. 463; State v. Greenwood, 76 Minn. 207, 78 N.W. 1044, 1117. Having examined the foregoing cases, we think there is a distinctive difference between these cases and the case at bar. "Possession of forged paper by a defendant with a claim of title thereunder, if unexplained, raises a conclusive presumption that he forged it, or procured it to be forged." 19 Cyc. p. 1412. ...