State v. Adcox

Hart, J., (after stating the facts). The Attorney General says that the indictment is based on § 2462 of Crawford & Moses’ Digest, which reads as follows: “If any person shall forge or counterfeit any writing whatever, whereby fraudulently to obtain the possession or to deprive another of any money or property, or cause him to be injured in his estate or lawful rights, or if he shall utter -and publish such instrument, knowing it to be forged and counterfeited, be shall, on cónviction, be confined in the penitentiary not less than two nor more than ten years.” In Goucher v. State, 204 N. W. 967, 41 A. L. R. 227, the Supreme Court of Nebraska held that the genuine making of a false instrument in writing is not generally a forgery, and that this is the usual interpretation of the courts, unless otherwise provided 'by the forgery statutes themselves. The court said that a check bearing the genuine signature of the maker, though drawn on the bank in which the maker has no money or credit, with the intention of cheating the payee or the bank, is not a forgery. The term, “forge or counterfeit any writing whatever,” refera to the writing as being forged, and not to the falsity of its statements. A false statement of fact in an instrument which is itself genuine, by which another person is deceived or defrauded, is not forgery. Rose v. State, 64 Col. 332, 171 Pac. 359, L. R. A. 1918C, 1193. In a case-note to 41 A. L. R., at page 231, it is said that, while there is a conflict in the authorities upon the subject, the majority view is that, under the* common law and under statutes defining forgery in the substantial lang-uage of the common law, the genuine making of an instrument for the purpose of defrauding does not constitute the crime of forgery. Numerous cases from the Federal court and from the various State courts of last resort are cited which sustain the annotator. . According to the allegations of the indictment, the check in this case was written by the defendant for the purpose of defrauding the Farmers’ National Bank upon which it was drawn and was so used by him in. a civil action wherein said bank was the plaintiff and T. J. Adcox was the defendant. ... According to the allegations of the indictment, the defendant, T. J. Adcox, signed his own name to a check on the Farmers’ National Bank and used the same to obtain credit in a lawsuit brought against him in the chancery court by said bank. He signed his own name to the check, and is not guilty of-forgery, although it was done for the purpose of defrauding another. The falsity of the instrument consists in its purporting to be the chock of some other person than the one actually making the signature. People v. Bendit, 111 Cal. 277, 43 Pac. 901, 31 L. R. A. p. 831; People v. Cole, 130 Cal. 13, 62 Pac. 274; State v. Ford, 89 Ore. 121, 172 Pac. 802; State v. Young, 46 N. H. 266, 88 Am. Dec. 212; New Mexico v. Gutierrez, 13 N. M. 312, 84 Pac. 525, 5 L. R. A. (N. S.) 375; and People v. Pfeiffer, 243 Ill. 200, 90 N. E. 680, 17 Ann. Cas. 703, 26 L. R. A. (N. S.) 138. T. J. Adcox was charged with uttering a-forged instrument, and, in a prosecution for uttering' a forged Writing, before there can be a cohviction, the State must prove that the instrument' offered was a forgery Maloney v. State, 91 Ark. 485, 121 S. W. 728. in that case it; was held, that forgery may. be committed by the use of a fictitious name with the intention to defraud. The-reason is that, if the drawer of the check has no existence, the name must have been affixed by some one without authority, and such act constitutes forgery. But in Harrison v. State, 72 Ark. 117, 78 S. W. 763, it was held that forgery is not committed by drawing a cheek on a. bank in which the drawer lias no funds; in the name by which he is generally known, although it is not his real name. .As.we have already seen, the. instrument in question was not a forgery because T! J. Adcox signed his own name to it and the circuit court properly sustained a demurrer to the second count in the indictment, which charged. T. J. Adcox with uttering a forged instrument. The conclusion we have reached renders is unnecessary to consider or determine the other objections to the indictment. The judgment in each case will therefore be affirmed.