State v. Pettit

93 P.2d 675, 97 Utah 443, 1939 Utah LEXIS 81

• Court: Utah Supreme Court
• Decided: August 17, 1939
• Docket: No. 6125.
• Status: Published

Opinions

LARSON, Justice.

This is an appeal from the judgment of the District Court of Salt Lake County, upon a charge of uttering a forged check knowing the same to be forged. A single issue is presented by the appeal. Did the defendant have a preliminary hearing and was he bound over upon the charge of which he stands convicted?

The preliminary complaint filed before the committing magistrate set out the crime of forgery in two counts. (1) that defendant “wilfully, unlawfully, falsely, feloniously, and with the intent to defraud Hemenway & Moser Company, a corporation, did forge and counterfeit the name of M. L. Lee, Jr. to a certain bank check, the tenor whereof is as follows.” Then followed a facsimile of the instrument in which the maker’s name appeared as “M. L. Lee & Company, (signed) M. L. Lee, Jr.” (2) That the defendant

“wilfully, unlawfully, falsely, feloniously, and knowing the same to be false, forged, counterfeited and intending to prejudice, damage and defraud Hemenway & Moser Company, a corporation, did utter, publish and pass genuine and true to and upon the said Hemenway & Moser Company, a corporation, a certain false, forged and counterfeited writing on paper purporting to be a bank check, the tenor whereof is as follows, to wit”:

Then followed a facsimile of the check, the maker’s signature appearing as “M. L. Lee, Jr.”

The first count was dismissed by the magistrate and the defendant bound over to stand trial on the second count. The information alleges the unlawful uttering of a check and set out a facsimile of the instrument which is the same as the facsimile described in count number one of the corn-paint, which was dismissed by the magistrate.

The code of criminal procedure is designed to prevent a miscarriage of justice through technicalities. It provides that to charge a forgery the pleader need only allege, “A. B. forged a certain instrument purporting to be a promissory note (or describe the note or give its tenor or substance) .” Section 105-21-47, page 229 c. 118, Laws Utah 1935. It is not necessary that the pleader set forth a copy or facsimile of the instrument alleged to be forged. “The description, if in a bill of particulars, is sufficient if it sets forth the character and contents of the instrument with such particularity as to enable the defendant to prepare his defense,” section 105-21-24, page 226, c. 118, Laws of Utah 1935; and that no information shall be invalid because of any defects or imperfection in, or omission of, any matter of form only. Section 105-21-43, page 228, c. 118, Laws of Utah 1935.

The code of criminal procedure is not designed to eliminate essential averments or to permit the pleading of misleading factual data, whether or not it was done knowingly. It cannot be regarded as mere surplusage if it is prejudicial to the defendant. Hence, where facsimiles are pleaded which are the gravamen of the offense charged they must be accurate and substantial in operative facts.

The signature to an instrument determines who is liable upon the instrument. The forgery of two checks upon the same individual as maker gives rise to two distinct causes of action. It follows, a fortiori, that a forgery of one’s name in an individual capacity is a separate and distinct offense from a forgery of the same individual’s name in a representative capacity. A conviction upon the one forgery would not support a plea of double jeopardy upon the trial of the second. In no sense can the two acts be the same. State v. McIntyre, 1937, 92 Utah 177, 66 P. 2d 879.

While the instrument upon which the defendant was bound over bears the signature of M. L. Lee, Jr. the one in the information bears the signature of M. L. Lee and Company, M. L. Lee, Jr. On the face of the pleadings these appear to be separate instruments, and the committing magistrate at the preliminary examination having dismissed the count charging forgery as to the check signed in a representative capacity, it follows that defendant did not have a preliminary hearing and was not bound over on the crime of uttering the forged check charged in the information.

Judgment is reversed and the cause remanded to the trial court with the direction to quash the information and remand the cause to the magistrate.

MOFFAT, C. J., and McDONOUGH and PRATT, JJ., concur.