McDonnell v. State

Wood, J. i. sufficiency for forgery, In view of the proof, it was unnecessary to employ the word “alter” after the word “forge” in the indictment. For the sake of clearness, it might have been omitted. The indictment is not defective on that account, however. The word “alter” maybe treated as surplusage. The demurrer was properly overruled. 1 Bish. Cr. Pro. secs. 481 to 485; also secs. 401, 419, 426; 1 Wharton’s Prec. of indictments, 264, 267; 3 Rice on Pv. p. 773 ; Acts of 1893, p. 67. sitolTexJ-t copy' It appears that the forgery in this case consisted in the alteration of a school warrant. The director who wrote it testified thát he thought he wrote in the face of the warrant the figures $20.00; that he knew nothing of the brackets around the figures, which are now ($25.00); that the word “five” had been inserted in the warrant since it left his hands. The treasurer (Smith) testified that he paid the appellant $25 on the warrant exhibited in court; that the word “five-” was written dimly with a pencil, and, being afraid it would rub out and not show $25 on its face, as it showed payment of $25 on its back, his recollection is, he wrote in the face of the warrant the figures and marks now found on same, to-wit, “($25.00),” but of this he was not positive. Other witnesses, who saw the warrant before it was received by the treasurer, state that it was written for twenty dollars. One said he did not know about any figures in the face of the warrant, and another thought he saw the figures $20.00. A letter, identified by appellant while on the witness stand as one written by him, was introduced, and experts testified that the word “five” in the warrant, in their opinion, was written by the same person who wrote the letter. Appellant’s first request was as follows : “If you believe from the evidence that the figures and characters as follows, “ (25.00),” were inserted in the - warrant adduced in evidence after the same passed out of defendant’s hands,' then said warrant is not the instrument of defendant,' and cannot be considered as evidence against him, and you should acquit him:” Considering the allegations and the proof, this request should have been granted. It was not error to admit the warrant when offered, because it was a facsimile of the instrument'described in ■ the indictment. But it being shown aliunde• that the figures “ ($25.00) ” might have been inserted by Smith after the- warrant passed out of appellant’s possession,'the jury should have been permitted to pass upon this ; and if they as■certained such to be the fact, the defendant, under the charge as laid, was entitled to an-acquittal secundum dlleg'ata et frobata. ' The defendant has the rig'ht to insist upon such certainty and precision in the indictment as will not mislead him in his defense,- and as will relieve him of the danger of jeopardy for the same offense. 3 Rice on Rv. sec. 119, et seq. The term, “in words and figures' as follows, to-writ,” implies the same exactness as the word “tenor,” which imports an exact copy. Webster, Die. “Tenor;’’ Maxwell’s Cr. Pro. 161. - , „ . dfctaeñtand proof' Here the'defendant was-informed by the indictment that fie fiad forged a school warrant, which was described-in words and figures, and in the face of- the warrant appeared the figures •“ ($25.00).” These figures were essentially descriptive of the instrument he is charged to have forged, and he could not be convicted, as thus charged, by producing an instrument that did not have these figures in the face of it when it left his hands. They are-just as essential to the identity of the instrument in this case as a description of color would be in an indictment for larceny. Where, for instance, a man was charged with stealing a black horse, proof of a white horse would not sustain the charge ; neither, here, will the charge be sustained without proving the figures “($25.00)” were upon the warrant when it passed out of defendant’s possession. 1 Greenleaf, Ev. secs. 56, 58 and 65, and authorities there cited ; Griffin v. State, 14 Ohio St. 61 ; People v. Marion, 28 Mich, 257. As the case must be remanded, should the prosecuting attorney conclude the evidence shows the figures “ ($25.00) ” were added by Smith after he. received the warrant, doubtless he: will quash and refer, and describe the instrument as it was when appellant altered it.- ' This would make quite a different case. Then-when the district attorney offers the warrant- in its present shape, should- it be objected to, the testimony of Smith would make it admissible, and it would be none the less the instrument as charged to have been forged by the defendant although changed after it passed out of his- possession. Those authorities which hold that marginal figures, stamps, vignettes, water-marks and ornamental- designs and devices, may be omitted in description, when the instrument is set out according to its • tenor,, because they are no part of the instrument, are not in conflict with the doctrine above announced. If, in addition to the tenor, such unnecessary descriptive averments were carried into an indictment for forgery, they would have to be proven as essential to the identity of the instrument thus described. Hill v. State, 41 Tex. 257 ; Dick v. State, 30 Miss. 634. Inasmuch as the verdict, being general, would have been good upon the first count, had the jury been properly instructed, we deem it unnecessary to pass upon the question of variance suggested as to the second count and the proof. Should another indictment be brought, as it is not necessary to set out the indorsement, the prosecuting attorney will doubtless avoid all possible difficulty of that kind. Commonwealth v. Ward, 2 Mass. 397 ; Perkins v. Commonwealth, 7 Grat. 651. 4. intent to The appellant’s fifth request, which was, in substance, that the intent must be to defraud all the parties named as charged in the indictment, that an intent to defraud one or more is not sufficient, was very properly overruled. The reverse we understand to be the law. Where several are named, an intent to defraud all, or any one, will.sustain the charge. 2 Bish. Grim. Pro. secs. 422, 425 ; People v. Curling, 1 Johns. (N. Y.), 319. 5. Experts handwritings, The third, fourth, fifth and sixth grounds for a new trial are not insisted on by counsel m nts brief, presumably for the reason that he does not regard them as available. In view of a new trial we only notice them to say that the court did not err in permitting the expert testimony on the comparison of handwriting. The letter offered as an examplar was identified by appellant, and no collateral issue could be raised concerning its genuineness. 1 Greenleaf on Rv. secs. 579, 581 and authorities cited; 3 Rice on Rv. sec. 496; May v. State, 14 Ohio, 467. Ror the error indicated, the cause is reversed, and remanded for a new trial.