Donaldson v. State

59 So. 99, 102 Miss. 346

Opinion

Cook, J.,

delivered the opinion of the court.

Since the indictment charges that the defendant did “forge, counterfeit, and alter” the instrument of writing copied into the indictment, and since it would have been entirely proper to have simply charged that defendant forged the same, and inasmuch as this charge would have been established by proof of a material alteration of the instrument, we cannot perceive how the addition of the word “alter” in any way injured defendant. Forgery may result from a fabrication of the entire instrument, or by counterfeiting a signature, or by a change of a genuine writing, as in this case; and, when. accomplished by alteration, this is treated as a forgery of the whole.

The pleader in this case followed the language of the statute, and the statute sufficiently describes the crime. True, there is abundant authority for the proposition that, when the pleader charges a forgery by alteration, he must set out how the alteration was made; but we have found no authority for the contention that the indictment is bad for duplicity where the pleader follows the statute, as was done in this case, charging forgery, counterfeiting, and alteration. It is difficult to follow the argument which admits that a general charge of forgery may be sustained by evidence of the alteration of a material part of the instrument alleged to have been forged, and at the same time condemns an indictment charging the forgery and alteration of the instrument, because the pleader fails to inform the defendant how and in what respect the instrument was altered.

According to this form of logic, the defendant could not have complained had the pleader, without mentioning alteration, masked his batteries behind the single word “forge, ” and then proved the forgery was accomplished by a change of a word or figure in a genuine document; but the defendant can complain because he is notified by the word “alter” that evidence may be introduced to prove an alteration. In the one case, alteration may be relied on to sustain the charge of forgery, because no charge of altering is made, while in the other ease, when it is charged that defendant did forge and alter the writing, the indictment is wholly bad, because the defendant is not informed of what charge he is called upon to defend. We think this is reasoning in a circle, and entangles the reasoner in the cobwebs of sophistry. It is entirely too subtle and refined for practical application, and, in our judgment, is unsound and fallacious.

The suggestion of error is overruled.

Suggestion of error overruled.