State v. Rowen

BEAN, J. Briefly stated, the claim of the defendant, R. J. Rowen, is that the indictment charges no crime; that the deed set forth in the indictment is a recorded deed; that anything antedating the date of filing the recorded deed is immaterial and incompetent ; that none of the exhibits offered in. evidence were admissible because they antedated the alleged forged recorded instrument; that the court should have sus-, tained the motion for a directed verdict in favor of the defendant; and that no testimony was admissible, especially as to' the certified copy of the deed claimed to have been forged, until the original forged instrument was accounted for.- It goes without saying that if the indictment does not charge the defendant with the commission of a crime, the judgment should be reversed. Section 1996, Or. L., provides that: “If any person shall, with intent to injure or defraud anyone, falsely mate, alter, forge, or counterfeit any public record whatever, or any # * deed # * ; or shall, with such intent, knowingly utter or publish as true or genuine any such false, altered, forged, or counterfeited record, writing, instrument, or matter whatever, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two nor more than twenty years.” Counsel for defendant contends that the allegations in the indictment that the defendants did forge and knowingly utter and publish as true and genuine the instrument set forth therein should be followed with the allegation that the said instrument was not true and genuine, but was a false and forged instrument. 1. The indictment plainly charges that the defendants acting together unlawfully, willfully, knowingly and fraudulently, and with intent to injure and de — 9 — fraud did forge and knowingly utter and publish as true and genuine the instrument set forth in the indictment. After an allegation that the defendants forged the deed, it would be mere surplusage to pro-' ceed to allege that the deed was forged or was not true and genuine. Such an allegation in effect would be a repetition, and would not add to the information furnished the defendant regarding the crime with, which he was charged. Defendant contends that the two acts made punishable by Section 1996, Or. L., one forging an instrument and the other knowingly uttering and publishing as true and genuine any such false and forged instrument “could not be joined in the same allegation, nor in the same indictment.” The brief of defendant then proceeds to state that the part of the statute which refers to uttering, requires that the instrument uttered shall be false, altered or forged, therefore, the necessity of a direct allegation that the instrument set out was such a false or forged instrument. 2. The first statement that the allegation of forging and uttering cannot be joined in the indictment, we do not understand to be urged. The practice is well settled to the contrary. It is claimed that under the rule announced in People v. Mitchell, 92 Cal. 590 (28 Pac. 597, 788), the allegations in regard to the two acts referred to must be entirely separate. It is apparent that the statute of California at the time of the opinion in that case was different from ours. 3. It has long been one of the general rules recognized in this state for construing indictments and informations, that where several acts are enumerated alternatively in the statute, the doing of each one being prohibited under a given penalty, they may be charged ■ conjunctively as one offense, when not re — 10 — pugnant to each other: State v. Carr, 6 Or. 133; State v. Bergman, 6 Or. 341; Cranor v. City of Albany, 43 Or. 144 (71 Pac. 1042); State v. White, 48 Or. 416 (87 Pac. 137); State v. Bilyeu, 64 Or. 177, 180 (129 Pac. 768); State v. Leonard, 73 Or. 451 (144 Pac. 113, 681); State v. Dale, 8 Or., 229; State v. Humphreys, 43 Or. 44 (70 Pac. 824). 4. According to the form of the indictment provided for in the appendix to our Code, which is a part of the statute, it may be alleged that a defendant “forged an instrument.” It is not essential, as claimed on behalf of defendant, that the indictment charge that the defendant forged the name of the person whose signature purports to be signed to the instrument. The allegation that the instrument was forged shows that every part of such document is false, and not true and genuine. 5. Criticism is made by the defense that the words “unlawfully, willfully, knowingly and fraudulently,” do not help the indictment for the reason that their use is confined entirely to the allegation of conspiracy. A fair construction of the indictment is that the defendants acting together, unlawfully, etc., forged and knowingly uttered and published as true and genuine the instrument set out therein. From a grammatical or rhetorical standpoint the adverbs quoted might be criticised as similar to squinting clauses, as from their position they might modify either the prior or following words. We are not necessarily concerned with the nicety of diction employed in the indictment, but with the true intent and legal import of the language used. 6. It is earnestly urged by counsel for the defendant, that the indictment alleges the forgery of a recorded instrument, and that it is incompetent to show — 11 — the forgery of a deed before the same was recorded. In other words, it is urged that the charge is that the entire instrument, as a recorded instrument containing the certificate of the recorder, was forged. An examination of the charging part of the indictment discloses that it is charged that the defendant forged and uttered an instrument in writing, which instrument is in words and figures as follows, to wit: Here follows a copy of a quitclaim deed purported to be signed by Harry W. Kelly. Appended to the copy of the deed and certificate of acknowledgment thereof is a notation of the filing and recording by the county clerk. As a matter of exactness in copying the instrument it might possibly have been well to have stated that there was indorsed thereon this notation. The defendant, however, could not have been misled, or believed that the note of the filing and recording of the deed constituted a part of that instrument. The alleged spurious deed appears to have been dated August 29, 1916, and the charge does not comprehend the forgery of the record of an instrument recorded on April 2, 1917. In fact, the indictment recites that “the said instrument, to wit, a quitclaim deed, was made and executed and uttered as aforesaid by it. J. Rowen and Paul Sands with intent to injure and defraud.” While the learned counsel is entitled to commendation for discerning the grounds for criticism, we cannot hold that it has the legal effect contended for. 7. It is claimed on behalf of the defendant that none of the certified copies of the record offered in evidence were admissible until the original instrument alleged to have been forged by defendant Rowen was accounted for; and if the deed in question was shown to be in the hands of, or under the control of — 12 — the defendant, sufficient notice should have been given him to produce it before a certified copy thereof could be introduced in evidence. This claim is largely based upon the opinion in the case of State v. Martin, 229 Mo. 620 (129 S. W. 881, Ann. Cas. 1912A, 908). It is shown by the opinion in that case at page 636, that under the statute of Missouri, before a certified copy of an instrument or writing conveying or affecting real estate can be read in evidence, it shall be shown to the court, by the oath or affidavit of the party wishing- to use the same, or of anyone knowing the fact, that such instrument is lost, or not within the power of the party wishing to use the same. On the contrary, Section 9877, Or. L., authorizes that: “The record of a conveyance duly recorded, or' a transcript thereof duly certified by the county clerk, in whose office the same may have been recorded, may be read in evidence in any court in the state, with the like force and effect as the original conveyance; but the effect of such evidence may be rebutted by other competent testimony.” The law in this state is that the original deed properly executed and acknowledged proves itself, and the transcript from the record thereof duly certified does the same: Marx v. Hanthorn, 30 Fed. 579, 583; Stanley v. Smith, 15 Or. 505, 508 (16 Pac. 174). The testimony in the case tended to show that the alleged forged deed was presented to the county clerk by one J. T. Gilmore, a partner of defendant Eowen in the business of dealing in mines. The county clerk, as a witness, thoroughly explained the matter of the recording, and it was shown by the testimony that the deed so presented was compared out of its regular order and handed to Mr. Gilmore and taken away by him. The whole tenor of the testimony is to the — 13 — effect that those interested in the prosecution never had possession of the alleged forged deed, and at page 26 of the transcript of the testimony, in connection with the interrogations in regard to the deed in question, counsel for defendant stated, “We can’t find the deed unfortunately.” The original instrument described in the indictment was therefore accounted for. While the statute makes a certified copy of a transcript of the record of. a conveyance of like force and effect as the original conveyance, it is apparent that the signature to the alleged spurious deed could have been examined and perhaps compared with an admitted signature of Kelly’s, if the original could have been produced. To a certain extent only the certified copy of the record of' the deed was secondary, but not in its fullest sense. The rule that when a written instrument is in, or traced to, the possession of the opposing party, or is under his control, it is necessary to give such party notice and reasonable time before the trial within which to produce it, before secondary evidence of its contents can be received, does not require that notice be given to produce documents which are the subject of the indictment: Wharton’s Criminal Evidence (9 ed.), § 212; State v. Hanscom, 28 Or. 427, 432 (43 Pac. 167, Ann. Cas. 1912A, 916, note); McGinnis v. State, 24 Ind. 500. In referring to this question Mr. Chief Justice Elliott, in the latter case said: “It is, therefore, difficult to perceive what benefit could result, either to the state or the defendant, from the giving of such a notice, while to the defendant it is liable to work a positive injury, by producing an unfavorable impression against him in the minds of the jury, upon his refusal to produce it aftér notice.” — 14 — 8. The motion for a directed verdict must of necessity depend upon the competency of the certified copies of the instrument. From a careful reading of the evidence, it appears that it sustains the allegations of the indictment. The weakness of some of the testimony is the subject of argument in the brief, but that feature of the case was for the consideration of the jury, and is not for the court. The record discloses that the defendant had a fair trial. We find no error therein. The judgment of the lower court is therefore affirmed. Appirmed. Rehearing Denied. Burnett, C. J., and Johns and Brown, JJ., concur.