State v. Leo

108 La. 496

Opinion

The opinion of the court was delivered by

Nioholls, O. J.

Section 833 of the Revised Statutes, after declaring that whoever shall forge, or counterfeit, or falsely make or alter, or shall procure to be falsely made, altered; forged'or counterfeited, or shall aid, or assist in falsely making, altering, forging or counterfeiting certain instruments which were specially enumerated, proceeds as follows: “Or shall alter (utter?), or publish as true any such false, altered, forged or counterfeited record, certificate, or attestation, charter, deed, will, testament, bond, letter of attorney, policy of insurance, bill of exchange, promissory note, acceptance, indorsement, assignment, order, acquittance, discharge, or receipt, knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any person or body politic or corporate, on conviction shall be imprisoned by imprisonment at hard labor for not less than two nor more than fourteen years.”

Section 1049 declares that in any indictment for forging, uttering * * * any instrument it shall be sufficient to describe such instrument by any name or désignation, by which the same may be usually known or by the purport thereof without setting out any copy or facsimile thereof, or otherwise describing the same or the value thereof.”

Defendant insists that the instrument averred to have been feloni ously uttered is not, on its face, a bond; that it is not sufficiently described; that extrinsic parole evidence had to be called in and used on the trial in aid of the charge made against him, touching matters and things which should have been set out in the indictment, so that he should have known, as he was entitled to have known, under the Constitution ((Article 10), the nature and cause of the accusation against him. That the evidence introduced on the trial should not have been admitted, he not having been properly apprised of the indictment as to' what evidence he would have to expect against him, or be prepared to meet. That the word “bond” in a statute prohibiting the uttering of a false, altered and counterfeited bond, means a bond binding upon some obligor to some obligee, and requiring something to be done which, if not done, can be compensated by action on the bond (American & English Encyclopedia of Law, 2nd Ed., Vol. 13, page 1098. Note —State vs. Briggs, 34 Vermont, 501).

That the Supreme Court of Louisiana had held that the offense denounced as forgery, was a common law offense, because the Louisiana statute had not defined the offense, but remitted its definition to the common law jurisprudence. That, therefore, it is not sufficient for fLe indictment to follow the language -of the statute, it must be made in distinct compliance with the common law requirements, except so far as modified -by Louisiana statute. That the indictment should have shown every fact and circumstance constituting the offense, so that the accused could not be misled as to the charge he has to answer. That an indictment, describing a specific offense, by the use of general terms, without setting out also all the facts and circumstances connected •therewith, if the facts alleged do not make out the offense charged, is defective. That it is not enough to charge that the defendant committed the crime of uttering a false and altered instrument, but it should be alleged how he had committed it. (State vs. Flint, 33 Ann. 1238; State vs. Styles, 5 Ann. 324. Wharton Criminal Pleadings, paragraphs 154-221.)

That when the nature, sort, or effect of the instrument does not affirmatively appear on its face, the extrinsic matter to show -this must be alleged. (Bishop’s New Criminal Proceedure, Vol. 2, Par. 415; Commonwealth vs. Hinds, 101 Mass. 209, 210, 211; State of Miss. vs. Wheeler, 19 Miss, 100 et seq; Williams vs. State, 51 Ga. 535 (1 Am Criml. Repts. 227); People vs. Galloway, 17 Wendel 543; People vs. Harrison, 8 Barbour 560; Cunningham vs. People, 4 Hun. (N. Y.) 455, 456, 457; State vs. Murphy, 46 La. Ann. 419, 420, 421.)

The defendant was not charged with forging or with altering an instrument of any kind. He is charged with having feloniously uttered, tendered and published as true a certain writing which is, to a certain extent at least, described in the indictment. It is therein designated as a bond. Who uttered it is immaterial. In the portion of the instrument inserted in the indictment we find that a pen had been run through the word “Andrus” and the word “and,” and that letters “J03.” and the “M” are interlined; that the word “their” has been erased and the word “his” interlined. The instrument, without the erasures and interlineations, reads:

“I, the undersigned, agree to stand as security for Andrus and Leo to the amount of their contract.

“Twenty-two Hundred Dollars.

“$2200.

Respt.,

(Signed) “Thomas J. Callaghan."

While with the alterations and interlineations it reads:

“I, the undersigned, agree to stand as security for Jos. M. Leo to the amount of his contract.

“Twenty-two Hundred. Dollars.

“$2200.

Respt.,

(Signed) “Thomas J. Callaghan."

So that Thomas J. Callaghan is made to appear as agreeing to stand as security for Jos. M. Leo to the amount of his contract, $2200, instead of agreeing to stand as security for Andrus and Leo to the amount of their contract, $2200. So much appears on the face of the indictment. It does not appear who altered it; it is declared that it had been falsely uttered. It is further declared in the indictment that the defendant uttered, tendered and published as true this false and altered, instrument (designated therein as a bond), well knowing when he did so, that the same was false and altered, and that this was done with the felonious intent to injure and defraud.

The indictment shows that this instrument so altered was tendered (uttered) by Leo to some one, though neither the person to whom it was ■offered, nor the circumstances under which it was uttered and tendered, are set out. The State claims that it is apparent that it was uttered and tendered to some one with whom Leo had either already made a •contract or with whom he proposed to make one if he could. It contends that the altered instrument in the condition in which it appears in the indictment was well calculated to mislead, deceive and defraud any person to whom it would be tendered, falsely as an agreement on the part of Callaghan, to stand as security for Leo on his contract. That the moment Leo feloniously uttered this false and altered instrument, with the knowledge that it was such, and with the felonious intent of defrauding some person, he committed a crime under Section 833 of the Eevised Statutes — no matter who the person might be to whom the instrument was presented, no matter what the character, terms or .amount of the contract might be, no. matter whether a contract had already been entered into or merely proposed, and no matter whether the party to whom it was presented should have in fact been injured or ■defrauded or not; that the legal commission of the crime was one thing, the detailed circumstances of the crime another thing; that all the State was called upon to set out in the indictment and disclose to the accused was the nature and cause of the charge against him, so that he knew what it was, leaving to him to call for detailed specifications of the charge in a bill of particulars, if he thought himself not fully informed and advised in the premises.

An examination of Section 833 of the Eevised Statutes will show that the instruments under the terms of the section which it is made a ■crime to utter or publish as true if false, altered or forged or eounfcer•feited, is for some reason made smaller than those which in the first portion of the section; it is made a crime to falsely make, utter, forge -or counterfeit. That in this larger enumeration, “securities for money •or property” and “bonds” are both set out, while in the smaller one “securities for money or property” are left out, but “bonds” are retained. The district attorney, with the statute before him, evidently felt it necessary to set out in the indictment the instrument which was to be averred as having been feloniously uttered, in a manner such as -to make it fall by designation under some one of the instruments in•cluded in the enumeration of the statute, and for that reason he selected the term “bond.” The object of the Genera) Assembly in enacting. Section 833 is very evident, but it does not suffice in a statute (particularly in a criminal statute) that its purpose should be manifest. To be effective the purpose must find expression in the language of the Lw itself, as required by legal rules. We have held it permissible sometimes to restrain the generality of the terms of a law so as to exclude from its operations exceptional cases, but we are not 'authorized to eke out or enlarge the terms of a limited law so as to place thereunder cases which evidently should have been included therein to fully effectuate-their object, but which by inadvertence or other causes were omitted. We do not think it necessary for the purposes of this case to give a 'definition to the word “bond.” This particular statute deals with “bonds” as things other and distinct from “securities for money or property,” and we should do so also. The term bond is sometimes used' as a generic term, as a written instrument by which a person has become bound or committed; legally, as speaking of an honest man we-hear it frequently -said, “his word is as good as his bond,” without reference to the specific form of the evidence of the obligation. Usually the word is taken to mean a secondary or accessory securing a primary-obligation in favor of some third person. The indictment does not declare that the defendant, Leo, had come under any civil obligation, written or verbal, towards any one for which Callaghan had become his surety, that Leo had not in fact made any contract or that he had tendered it to any one with the view of effecting a contract. The instrument declares: “I agree to stand security for Jos. M. Leo, to the-amount of his contract. Twenty-two hundred dollars. Thomas J. Callaghan.” Armed with it Leo would doubtless have been in a position to induce some one to enter into a contract with him to an amount, of twenty-two hundred dollars. The instrument .would, under such circumstances, notwithstanding its terms of present obligation on the-part of Callaghan, be at most an offer or tender by him to become security for Leo on a contract to the extent of twenty-two hundred dollars. The instrument would not on its face nor in reality be a bond. If Leo-should become liable upon a future contract," it might be said that, coupling the obligation of Callaghan evidenced by this instrument with his own, that he had furnished a bond in favor of the obligor in the contract, but until this obligation of Leo had arisen, this instrument. (said to be Callaghan’s) was merely inchoate, prospective. It was not on its face a bond. Other facts would have to arise and be connected with it to make it constitute part of a “bond.” It is true that as great a. wrong and injury might be accomplished through the instrumentality of a writing of this kind, as might be accomplished by the uttering of an instrument technically and strictly falling under the designation of .a bond, but we cannot, in matters of crime, pass from one act falling within a statute to one falling without it, no matter how alike they might be in the harmful consequences which the statute seeks to prevent. We do not think the altered instrument was technically a bond. Assuming that the facts connected with the uttering of this instrument were such as to have brought the defendant within the grasp of the provisions of the statute, these facts should have been set out in the Indictment.

In State vs. Murphy, 46 Ann. 420, we quoted approvingly the following language from Wharton, p. 740:

“Where an instrument is incomplete on its face so that as it stands it cannot be the basis óf any legal liability, then to make it the technical subject of forgery, the indictment must aver such facts as will invest the instrument with legal force. Thus where an indictment charged that A did feloniously and fraudulently forge a certain writing, as follows: ‘ Mr. Bostick, charge A’s account to us. — B & C,’ with intent to defraud B and C, it was held that the indictment was not valid without charging that A was indebted to Bostick, as there could be no fraud unless a debt existed.”

Eeferring to the case before us at that time, we said:

“The indebtedness may be proved aliunde. To admit the proof and give legal force to the indictment it must aver such facts as will invest the instrument with legal efficacy. Where an instrument is not on its face sufficiently full to be a receipt, the defect may be supplied by showing a course of dealing between the parties in which it is understood to be and treated as such. This extrinsic matter must appear both by averment and proof. * * * Assuming the discussion that the account judged is genuine, it is not per se of legal efficacy against any one without additional averments in the indictment setting forth the facts connected with the transaction.” (See on this subject State vs. Stephens, 45 Ann. 702.)

The indictment in the present case is for the same reason faulty and the testimony offered in support of it and which was admitted over defendant’s objection should have been excluded.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the verdict of the jury and the judgment of the court therein rendered and herein appealed from be and the same are hereby set aside, annulled, avoided and reversed.

Rehearing refused.