Stith v. State

179 S.W. 178, 120 Ark. 170, 1915 Ark. LEXIS 20

• Court: Supreme Court of Arkansas
• Decided: September 27, 1915
• Status: Published

Opinion

Hart, J.

The .appellant, G. W. Stith, was convicted of the offense of forgery and has duly prosecuted an appeal to this court.

The indictment omitting the formal parts is as follows:

“The grand jury of Ouachita County, in the name and hy the authority of the State of Arkansas, on .oath accuse the defendant, George Stith of the crime of forgery committed as follows, towit: The said defendant, George 'Stith in the county and State aforesaid, on the 26th day of October, A. D., 1914, did then and there wilfully, unlawfully and feloniously, fraudulently and falsely make, forge and counterfeit a certain paper writ.ing and sign thereto said paper writing the name of Sam Stith without his knowledge or consent; said writing purporting to be an order drawn upon the express agent to let the hearer have a package, which said false and forged order is in words and figures, towit:

“Express Agt.

Please let bearer have my package, oblige.

Sam Stith.”

iand the false and fraudulent making, forging and counterfeiting of said order and signing the name of the said Sam Stith was done with the felonious and fraudulent intent then and there to cheat and defraud the said express agent out of the said package aforesaid, to the great damage and injury of the said express agent contrary to the statutes in such cases made and provided, against the peace iand dignity of the State of Arkansas. ’ ’

(1) The appellant interposed a demurrer to the indictment which was overruled by the court and, his counsel now assigns as error the action of the court in overruling his demurrer. The trial court should have sustained the demurrer to the indictment. This court has held that the name of the person to whom the forged instrument was passed is part of the description of the offense. McClellan v. State, 32 Ark. 609. The indictment in the case at ibar attempts to charge the defendant with passing a forged order but does not allege any person firm or corporation to or upon whom .the same was uttered or passed. The indictment does not excuse this omission with any statement that 'the person to or upon 'whom it was uttered or passed was to the grand jury unknown. The object of naming the injured person in the indictment is not only that the defendant may properly prepare for his defense but that 'in case of ia second prosecution for the same offense he may accurately plead former conviction or acquittal as the case may be.

(2) Again it is contended by counsel for defendant that the instrument alleged to be forged is not addressed to any particular person and therefore is not the subject of forgery. We do not agree with counsel in this contention. It is true the instrument is not addressed to ¡any particular person firm or corporation. It is apparent, however, that it was addressed to the agent of the express company which had charge of. the package consigned to Sam Stitt and if the order had been genuine it was explicit and. clear enough to warrant the express agent in delivering the package to the bearer. This being true, its uttering was forgery.

For the error of the trial court in overruling the demurrer of appellant to the indictment, the judgment must be reversed and the case will he remanded for further proceedings according to law.