State v. Swank

195 P. 168, 99 Or. 571, 1921 Ore. LEXIS 38

• Court: Oregon Supreme Court
• Decided: January 25, 1921
• Status: Published

Opinion

JOHNS, J.

1. It is objected that the indictment is entitled “State of Oregon,” instead of “The State of Oregon,” as Section 1438, Or. L., provides. In such a matter it is better and safer pleading to technically follow the statute, but here the objection is one of form and not of substance. To the average person there is no difference in the meaning of the words “The State of Oregon” and “State of Oregon.” Both expressions convey the same meaning. Section 1435, Or. L., enacts that:

“All the forms of pleading in criminal actions heretofore existing are abolished; and hereafter, the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code."

In State v. Dougherty, 4 Or. 200, 203, this court says:

“It clearly appears to have been the purpose of our legislature to simplify the old common-law system of criminal jurisprudence, by divesting it of many of its technical requirements, such as do not appear to affect the substantial rights of the accused.”

2. There is no merit in the objection. It is claimed that the indictment should “be signed by the district attorney and indorsed on its face ‘a true bill’ ” by the foreman, “and not merely on the outside, which is no part of the indictment.” An indictment signed by the district attorney through a deputy was sustained in State v. Guglielmo, 46 Or. 250 (79 Pac. 577, 80 Pac. 103, 7 Ann. Cas. 976, 69 L. R. A. 466). There, before the arraignment, a motion was filed to quash the indictment, for the reason that it had been prepared and filed by a deputy district attorney. It was held that courts would take judicial notice of the appointment and scope of authority of their officers, including deputies, and that a motion to set aside an indictment upon the ground that it was not found indorsed, or presented as required by law was insufficient to challenge the appointment of the deputy district attorney who prepared and filed the information. In the instant case no motion of any kind was ever filed. Section 1468, Or. L., enacts:

“If the defendant do not require time, as provided in the last section, or if he do, then on the next day, or at such further day as the court may have allowed him, he may, in answer to the arraignment, either move the court to set aside the indictment, or he may demur or plead thereto.”

Construing this section, State v. Smith, 33 Or. 483 (55 Pac. 534), holds:

“Where the defendant has resorted to the demurrer, without filing his motion to set aside within the time allowed by the court to answer the indictment, he is thereafter precluded from taking the objection for which the motion is otherwise appropriate. This seems to be a plain rule of the statute, and we are not at liberty to depart from it until the legislature has prescribed another.”

Section 1468 has never been changed and remains the same as when the opinion was written.

3. The defendant contends that the indictment does not state facts sufficient to constitute a crime, because it does not state the reasons or manner or wherein the note is forged. It is true that the indictment does not allege how, in what manner, or wherein the note was forged, but the note is copied in full in the indictment. Under a like statute that identical question is decided in People v. Hoyt, 145 App. Div. 695 (130 N. Y. Supp. 505, 508, 509), which was for the forgery of a deed, and the indictment was drawn in the same manner as here, and it was there held that:

“The verb ‘forge’ in law has a clearly defined meaning. * * The act constituting the crime in the present case is the forging of the deed set forth in the indictment—the making of the false instrument with intent to defraud. The act constituting the crime is therefore clearly charged by simply saying that the defendant forged the deed set forth with intent to defraud, and it was unnecessary to state how such forgery was committed, whether by pen or pencil or printing or by falsely making or counterfeiting any of the various signatures, or altering, or erasing, or obliterating, or piecing together parts of genuine instruments. * * All precedents and all authorities sustain the proposition that the particular manner in which the forgery is committed need not be stated in an indictment, but that the act constituting the crime is sufficiently pleaded by alleging that the instrument set forth was forged. * * Our conclusion from the authorities is that an allegation that an accused feloniously forged an instrument prohibited by the statute with intent to defraud is a sufficient allegation of the act constituting- the crime. The present indictment set forth that the defendant forged a deed, and the law specifies that the forging of a deed as an entirety shall constitute the crime of forgery in the first degree.”

In State v. Greenwood, 76 Minn. 211 (78 N. W. 1042, 1117, 77 Am. St. Rep. 632), it is held:

“An indictment which charges that on a certain day and at a certain place the defendant, with intent to defraud, did then and there feloniously forge a certain promissory note, of the tenor following, and then sets out in the indictment the note in full, states facts sufficient to constitute a public offense in plain and concise language, and sufficiently informs the defendant of the nature and cause of the accusation against him, and the word ‘forge’ as used in said indictment, is not a mere legal conclusion.”

Again, in the instant case the indictment substantially follows forms No. 15, 1 Or. L., page 1348, “In an indictment for forgery.” That form does not provide that the indictment shall point out or specify how or in what manner the forgery was committed. As drawn it is sufficient to charge the crime of forgery.

4. It is further contended that the crime was not committed in Multnomah County and that evidence of previous transactions between the defendant and Stephens and his wife were not admissible, and that their admission was prejudicial. In response to his advertisement in the “Oregonian” the defendant wrote a letter to Mr. Stephens, which was mailed at the postoffice at Portland and delivered at Taft. This was the inception of mutual dealings, which resulted in the forgery charge of the note for $75 against the defendant. The testimony formed connecting links of a continuous transaction, which related to and explained the mutual dealings between the defendant as one party and Stephens and his wife as the other, and which led to and explained the forging and mailing of the note. When the Lane County fraud was detected the defendant devised another scheme, to give them a deed for a five-acre tract in Hood River, in which it was agreed that defendant would surrender his note for $25 commission, and deliver another note for $75. In a few days after this proposition was accepted the defendant mailed them the Myers deed for the Hood River five-acre tract and the note for $25 commission, and the note for $75 described in the indictment, all in the same letter.

Evidence of previous transactions was not admitted for the purpose of showing that the defendant had committed other or different crimes, but as tending to show that the note for $75 was a forgery. Although it may have influenced the jury, it all grew out of and was a part of a connected and continuous transaction, which the state had a right to prove for the purpose of showing a motive for the defendant to commit the crime. Such evidence was competent to explain the actions and conduct of the defendant, and to show why he mailed the letter containing the note for $75.

The venue was laid in Multnomah County. Defendant contends that the forgery, if any, was committed in Lincoln County. The state offered evidence tending to show, and from which the jury could find, that the note described in the indictment was prepared by the defendant on his typewriter in his office in the Henry Building in the City of Portland, and that Prank Burrow was a fictitious person; that the defendant signed the name of “Prank Burrow” to the note, and deposited it in the postoffice in the City of Portland addressed to Stephens at Taft, in Lincoln County, Oregon, who received it with the other papers in the ordinary course of mail; and that the note was made and deposited in the postoffice in Portland “with intent to injure and defraud.”

Assuming such facts to be true, was the forgery consummated in Multnomah County? The defendant relies upon and cites 19 Cyc. 1391, which reads:

“If a forgery is completed in one county, defendant may be prosecuted in that county, and it is immaterial where the first step may have been taken. Jurisdiction is in the county in which defendant utters a forged instrument, notwithstanding he may have forged the instrument in another county, and where an instrument is caused to be set in circulation abroad with intent to have it presented where the forger resides, he can be convicted of uttering it at the latter place. The weight of authority is to the effect that the offense is not complete until the instrument comes to the hands of the person to whom it is sent and that the proper place of trial is the county to which it is sent.”

The same rule is stated in 12 R. C. L. 153, which reads as follows:

“To sustain a conviction of the crime of forgery, as in other crimes, it should appear that it was committed in the county where the offense is laid; but according to the weight of authority proof of this fact is sufficiently made out to entitle the state to go to the jury, if nothing further appears than that the person charged with the offense is shown to have uttered the forged instrument in the county where the indictment is found. In other words, proof that the forged instrument was uttered by the forger in the county where the indictment was found, if unanswered, is sufficient to sustain the verdict of a jury that the crime was there committed. So, depositing a forged instrument in the mail directed to another county makes the county where the instrument was received, and not the county in which it was mailed, the place of offense of uttering it, if such offense is committed. A statute making a crime committed partly in each of two counties punishable in either does not apply to the uttering of a forged instrument by mailing it from one county to another, as no part of the offense is committed in the former.”

Section 1997, Or. L., provides:

“If any person shall, with intent to injure or defraud anyone, make, alter, forge, or counterfeit any bank bill, promissory note, draft, check, or other evidence of debt * * , such person, upon conviction thereof, shall be punished in the manner provided in Section 1996.”

Section 1998, Or. L., enacts:

“If any person shall, with intent to injure or defraud anyone, knowingly utter or publish, or pass, or tender in payment as true and genuine, any false, altered, forged, or counterfeited bill, note, draft, check, or other evidence of debt specified in Section 1997, such person upon conviction thereof, shall be punished in the manner provided in Section 1996.”

It will thus be seen that under our statute the committing of a forgery, and the uttering, publishing or passing of a forged instrument as true and genuine, are separate and distinct crimes, and that the crime of forgery consists in the making, altering or forging of a promissory note “with intent to injure or defraud anyone.” In State v. Wheeler, 20 Or. 192 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779), this court held:

“The execution of a promissory note in the name of fictitious person, or under an assumed name, with intent to defraud is forgery.”

After quoting several definitions of the word “forgery,” the opinion says:

“That the essential elements of the * * crime are: (1) A false making of some instrument in writing; (2) a fraudulent intent; (3) an instrument apparently capable of effecting a fraud.”

This was approved in State v. Ford, 89 Or. 121 (172 Pac. 802). In 2 Words & Phrases, Second Series, 614, many authorities are cited as to what constituted forgery, and they all lay down the rule, in substance, that the essential ingredients of the crime are the making of some false instrument, a fraudulent intent and liability to injure another if the writing is genuine. 2 Wharton (11 ed.), Section 858, says:

“The offense is consummated by the making of a false document, on which suit might be brought, with intent to defraud, without any uttering”—citing numerous authorities.

State v. Blodgett, 143 Iowa, 578 (121 N. W. 685, 21 Ann. Cas. 231), lays down the rule that forgery and the uttering of a forged instrument are distinct offenses, and that the crime of forgery is not a degree of the crime of uttering, nor is it necessarily included therein. Fraudulent intent in the making of a forged instrument is essential to the crime of forgery, though it is not necessary to prove it to establish the crime of uttering. It also holds that:

“An acquittal of the crime of uttering a forged instrument is not a bar to prosecution for forging the same instrument.”

5, 6. There is testimony from which the jury could find that Frank Burrow was a fictitious person, and that the defendant signed the name of “Frank Burrow” to the note for $75, addressed it to Stephens, and mailed it in the postoffice in the City of Portland, with the intent to injure and defraud Stephens. Assuming such facts to be true, the crime of forgery was committed in Multnomah County. Under similar statutes, there is no serious conflict in the authorities. The cases cited and relied upon by appellant are either under different statutes or founded upon indictments for the uttering of forged instruments: State v. Hudson, 13 Mont. 112 (32 Pac. 413, 19 L. R. A. 775), holds that:

“Where the forged instrument is mailed in one county and received in another, venue of the offense of uttering the forged instrument is in the latter county."

That is good law; but there the defendant was indicted for the uttering of a forged instrument, and not for its forgery, and therein lies the distinction.

Mrs. Stephens testified that the defendant prepared the note for $25 on his typewriter in his office in the Henry Building, and that she signed it there. Defendant complains that the witness Ford, as an expert, was permitted to testify that in his opinion the note for $25 and the note for $75 were prepared by the same person on the same typewriter, and the signature of “Frank Burrow” to the latter was in the handwriting of the defendant. Wood’s testimony was’ clear, analytical, and convincing, and the reasons for his belief were stated in concise language, from which the jury could and did find that the two notes were prepared by the same person on the same typewriter, and that the defendant forged the name of “Frank Burrow” to the note for $75. There is also competent evidence that Burrow was a fictitious person.

This is an age of typewriters, in which they are important t in many of the daily transactions. The case of Grant v. Jack, 116 Mo. 342, 346 (102 Atl. 38), decided in October, 1917, is in point and reads thus:

“And for the purpose of showing that fact we think the copy of the letter, shown to have been made on the same typewriter, was admissible in evidence for comparison with the original letter. The comparison was to be made by the jury, and it was for them, and not for the presiding Justice, to determine by the comparison if there were defects or irregularities in the typewriting of the original letter which were plainly reproduced in the typewriting of the copy.”

7. It was not questioned that Ford was qualified to testify as an expert. The defendant had a fair trial, and there is ample testimony to sustain the verdict.

The judgment is affirmed.

Affirmed. Rehearing Denied.

Burnett, C. J., and Bean and Brown, JJ., concur.