State v. Weaver

128 N.W. 559, 149 Iowa 403

Opinions

McClain, J.

i. Criminal law: uttering forged instrument: evidence of offense. The sole question raised on this appeal is as to the sufficiency of the indictment; and the sole objection relied upon is that the indictment failed to state the name of the person to whom the instrument was uttered and passed or to state that the name of such person was to the grand iurors unknown, or to otherwise designate the facts constituting the alo o leged uttering. The statute defines the offense as consisting of the uttering and publishing as true any instrument such as is described in the preceding section as an instrument the false making of which constitutes forgery. Code, section 4854. And while the indictment in question uses the words “utter and pass,” instead of the words “utter and publish,” it is not contended that anything more is required to be proved under the allegations made than would be required had the indictment used the exact words of the statute. The offense does not necessarily consist in the actual perpetration of a fraud by the passing of a forged instrument, but it is sufficient if it be offered or held out as genuine with the intent to defraud some person or persons. People v. Brigham, 2 Mich. 550; People v. Caton, 25 Mich. 388; Smith v. State, 20 Neb. 284 (29 N. W. 923, 57 Am. Rep. 832); Johnson v. Commonwealth, 90 Ky. 488 (14 S. W. 492); Rex v. Palmer, Russ. & Ryan, 72; 2 Bishop, New Crim. Law, 605; 2 Russell, Crimes (8th Am. Ed.) 362. And this court has expressly recognized such a definition of the offense, holding that, although the instrument is not actually transferred or disposed of, the crime of uttering is complete if it is offered for the purpose of passing it to another with the representation directly or indirectly made that it is good. State v. Sherwood, 90 Iowa, 550; State v. Calkins, 73 Iowa, 128. It may be suggested in passing that the statutory language “utter and publish” corresponds with the common law definition. See Bishop, New Criminal Law, supra.

2. Same:indictment: allegation of name of transferee. As it was not essential at common law and is not essential under the statute that the instrument actually be transferred to or accepted by another as genuine, it would seem in reason that it should not be necessary to allege in the indictment such an actual transfer, and that, therefore, the name of the person to whom the instrument in fact transferred and passed, if - . suck transfer did take place, need not 7 be alleged, for the offense consists of the publishing as true with the intent to defraud, and not of committing a wrong by the actual transfer to some person thereby defrauded. The forms of indictments for uttering given in the books of precedents are in accordance with this reasoning. 2 Archbold’s Criminal Practice & Pleading 534; 1 Wharton, Precedents of Indictment, 270; 8 Encyclopedia of Forms, 742.

The identical objection now made was urged to a similar indictment in Rex v. Holden, Russ. & Ryan, 154, and was, by the court for the consideration of Crown Cases Reserved, composed of the twelve judges of England, held to be not well taken. The authorities in this country seem to generally sustain such form of indictment. Thus in State v. Foster, 30 Kan. 365 (2 Pac. 628), the indictment charged in the language of the statute substantially the same as that found in .our statute defining the offense that the defendant did “pass, utter, and publish as true” the instrument described, and the objection was made that it was defective in not containing a statement of the facts constituting the offense in plain language, and the objection was held not to be well taken. The same conclusion seems to be indicated in our own case of State v. Hart, 67 Iowa, 142. In State v. Tingler, 32 W. Va. 546 (9 S. E. 935, 25 Am. St. Rep. 830), an indictment is set out which charged the defendant with uttering and attempting to employ as true a certain specified writing with the intent to defraud, and the court held objections to it as not sufficient because not naming the person to whom the instrument was uttered not well founded, saying that it was in a form commonly in use in that state. Other cases exactly in point in support of the sufficiency of the indictment in this respect are Commonwealth v. Butterick, 100 Mass. 11 (97 Am. Dec. 65); State v. Adams, 39 La. Ann. 239 (1 South. 455); State v. Gaubert, 49 La. Ann. 1692 (22 South. 930). Among other cases coming to our attention in which the form of the indictment for the crime of uttering is given containing no allegation of the name or description of the person to whom the instrument was uttered, published, or passed we may cite the following: State v. Waterbury, 133 Iowa, 135; State v. Beasley, 84 Iowa, 83; State v. Jones, 9 N. J. Law, 357 (17 Am. Dec. 483); Bostick v. State, 34 Ala. 267; People v. Dolan, 186 N. Y. 4 (78 N. E. 569, 116 Am. St. Rep. 521); State v. Stanton, 23 N. C. 424; Owen v. State, 34 Neb. 392 (51 N. W. 971); Commonwealth v. Searle, 2 Bin. (Pa.) 332 (4 Am. Dec. 446). Eor other similar forms, see 8 Encyclopedia of Eorms, 742 et seq. These cases are cited, not as authority on the sufficiency of the indictment in this respect, but as indicating that a form of indictment which does not state the name of the person to whom the instrument was uttered, passed, or published, or the circumstances of such uttering, passing, or publishing, is in common use in nearly all the jurisdictions of this country.

In the case of McClellan v. State, 32 Ark. 609, such an objection has been held good; the court relying solely upon a reference to Mr. Bishop’s treatise on Criminal Law and an early case in our own state, Buckley v. State, 2 G. Greene, 162. We have been unable to find in Bishop’s Criminal Law the language which the court purports to quote from that work, but the proposition is stated by the author in his Criminal Procedure as follows: “The indictment for uttering should give the name of the person to whom the forged instrument was tendered, if known, or, if not known, state this excuse for the omission.” 2 Bishop, New Criminal Procedure, section 425. And in support of this statement reference is made to the Arkansas case (which had already been decided when this last edition of Mr. Bishop’s treatise appeared), the Iowa case which that court also cites, and a case from East’s Pleas of the Crown, which relates to passing counterfeit money. See 1 East P. C. 180. These cases and the statement by Bishop as above quoted are cited and followed in Goodson v. State, 29 Fla. 511 (10 South. 738, 30 Am. St. Rep. 135); State v. Murphy, 17 R. I. 698 (24 Atl. 473, 16 L. R. A. 550). Our own case of Buckley v. State, supra, also relates to the passing of counterfeit money, and not to the uttering or publishing of a forged instrument, and the court says that in an indictment for passing counterfeit money the name of the person to whom it was passed should be designated as the one upon whom the offense was committed, not only because he is injured, but because his designation is material as descriptive of the defense, citing Butler v. State, 5 Blackf. (Ind.) 280, which involves an indictment for gaming, and therefore is remotely, if at all, in point. The form of indictment for uttering given in Bishop’s Directions and Eorms is in accordance with the common-law forms above referred to, except that he says that, if the offense is uttering, then the allegation should •be “utter and publish as true,” with this suggestion in parenthesis, “probably add, to one X,” citing for this suggestion what has already been quoted above from his work on Criminal Procedure. See Bishop’s Directions and Eorms, section 460. It is apparent, therefore, that even Mr. Bishop found no controlling precedent or authority for alleging in the indictment for uttering the name of the person to whom the instrument was uttered or published a description of him as unknown or otherwise.

With reference to our case of Buckley v. State, supra, it may be further said that, while there is more persuasive reason for requiring the statement of the name of the person to whom counterfeit money has been passed than for requiring a like statement in the case of uttering or publishing, the conclusion of the court is not supported by authority. See, for instance, United States v. Bejandio, 1 Woods, 294 (Fed. Cas. No. 14,561), which was a case relating to the passing of counterfeit money where the objection was held not well taken. See, also, Swaine v. People, 5 Ill. 178; Gentry v. State, 6 Ga. 503; 2 Bishop, New Criminal Procedure, section 452. In the cases just cited indictments for passing counterfeit money are sustained, although they do not contain allegations as to the names of persons to whom the money was passed or tendered. In indictments for forgery, as well as in those for uttering or publishing forged instruments, it was deemed necessary at common law to allege the name of the person intended to be defrauded. State v. Gavigna, 36 Kan. 322 (13 Pac. 554); Drake v. State, 19 Ohio St. 211; Turpin v. State, 19 Ohio St. 540; Commonwealth v. Butterick, 100 Mass. 11 (97 Am. Dec. 65). But, as the name of the person intended to be defrauded was not necessarily descriptive-of the actual transaction, it has been thought to be superfluous to make such an allegation, and accordingly statutes have been passed in various states declaring such an allegation to be immaterial. State v. Cleveland, 6 Nev. 181; Westbrook v. State, 23 Tex. App. 401 (5 S. W. 248); Davis v. State, 58 Neb. 465 (78 N. W. 930); Roush v. State, 34 Neb. 325 (51 N. W. 755). And it has been expressly held that such a statute does not deprive the defendant of any essential right. Commonwealth v. Butterick, 100 Mass. 11 (97 Am. Dec. 65); McClure v. Commonwealth, 86 Pa. 353; Turpin v. State, 19 Ohio St. 540.

In this state we have a similar statute passed since the decision in the case of Buckley v. State, supra, in which as first enacted it was specifically provided that, “In any case where an intent to defraud is required to constitute the offense of forgery or any other offense that may be prescribed, it shall be sufficient to allege in an indictment an intent to defraud without naming the particular person or body corporate intended to be defrauded.” Code of 1851, section 2927; Revision of 1860, section 4667; Code of 1873, section 4313.. This provision as now incorporated into the present Code (section 5298) does not specifically refer to forgery, but covers, as did the other provisions, all cases “where an intent to defraud is required to constitute an offense.” There can not be the slightest doubt, however, of the intention of the Legislature in the enactment of the present Code to preserve the former statutory provisions on the subject as applicable to forgery and similar offenses. What is here said as to the statutory provision is rather by way of illustration, than as directly applicable to the case before us. But it does illustrate the reasonable application of a principle stated in Commonwealth v. Butterick, supra, and Turpin v. State, supra, that forms of indictment are under legislative control, and a greater strictness than was required at common law should not be now insisted upon. As a further illustration of the reasonable rule that unnecessary matters need not be alleged, we may refer to the case of State v. Bauguess, 106 Iowa, 107, wherein it was held that, under an indictment charging indecent and obscene exposure of the person in a public place, it was not necessary to allege the name of the person or persons to whom‘such exposure was made.

If defendant had been convicted and sentenced under this indictment, we should not hold, and could not hold in accordance with precedent and authority, that the conviction was improper by reason of the insufficiency of the indictment, and therefore we must now hold on the state’s appeal that the trial court erred in adjudging that the indictment be set aside and dismissed as insufficient. The judgment is therefore reversed, and the case remanded for further proceedings in harmony wtih this opinion. — Reversed and remanded.

Weaver, J., takes no part.