State v. Boasso

The opinion of the Court was delivered by Manning, J. The indictment contained two counts, first forging a certificate of marriage, and second for publishing as true such forged certificate, and there was a conviction of both. The State entered a nol. pros, of the first and the prisoner was sentenced upon the second to imprisonment at hard labour for fourteen years. There was a motiou to quash on the ground that the pretended marriage certificate cannot in law be the subject of forgery, because it is invalid on its face and void of legal effects, the invalidity and want of legality being that the City Courts of New Orleaus are without authority to issue marriage certificates or to solemnize marriages. The certificate alleged to have been published as true purported to have been issued by William Voorhies, judge of the Second City Court of New Orleans, and certified the marriage'of T. J. Boasso with Mary Catherine Kuhn on the 23d day June, 1885. Justices of tlie peace were authorized to celebrate marriages, Rev. Civ. Code, art 103, and any one who celebrates a marriage must make [206] “an act” thereof, Ibid, art. 105. The judges of the “ City Courts” of New Orleans replace, under the Constitution of 1879, the justices of the peace. Const., arts. 135, 266; State ex rel. Howard v. Walsh, 32 Ann. 1234. And the legislature has expressly granted them the right to issue licenses to celebrate marriages. Acts 1882, p. 40. The judge of the Second City Court of New Orleans has therefore the right to solemnize marriages and is required to make a certificate thereof, that being the name of the kind of “act” he then confects, and hence the motion to quash was properly denied. .The court was requested to make the following charges to the jury, which were refused: 1. That the offence must have been committed with intent to defraud, and to defraud means to deprive a person of his personal property. The judge had already in his charge explained to the jury at groat length that an intent to defraud was one of the essential elements of forgery, and he cannot be required to repeat what he has already said with lengthy explanations. He instructed the jury that “ defraud ’! meant something more than the definition of personal property, and he is correct. Wharton says it means to prejudice the rights of another, Cv. Law § 683. The statutejpunishes where the intent is to injure or defraud, Rev. Stats, sec. 833, and the indictment contains the charge of intent to injure and defraud. 2. That the law requires that the offence shall have been committed within the jurisdiction of the court, and if it be not so shewn the accused should be discharged. . The judge seems to have misapprehended the purport of this request as his answer was that the question of jurisdiction was not before the court, and there was no doubt of .its jurisdiction, but he had already charged the jury that the State must shew affirmatively beyond a reasonable doubt that the offence charged had been com mitted in the parish of Orleans, that is, within the jurisdiction of the court, and the jury when they found the verdict of guilty as charged, necessarily passed upon the proof of that fact and found that it had been proved. 3. That there could be no forgery of a marriage certificate where no marriage ever existed. To which the judge replies that the evidence on the trial established the possibility of such a contingency. It must be noted that this remarle on the evidence was not made in the presence of the jury, but is the reason given by the judge in the bill of exceptions. While [207] judges are prohibited in criminal trials from commenting to the jury on the evidence, they are required to give to tli appellate tribunal their reasons for refusing instructions that are prayed. But the instructions prayed are not good law. As well might it be said there could be no forgery of a promissory note where no indebtedness of the maker existed. A certificate of a marriage that had not taken place, might be made for a variety of purposes, e. g., to affect the descent of property, to deceive individuals and families, etc., and when the forgery had for its intent to injure and defraud and the intent has been accomplished and borne its fruits (of which the jury are the triers) the offence is complete. 4. That the alleged forged instrument must be one which, if genuine, a suit could be brought upon it, for if it cannot be sued on it cannot be forged. It is not essential that the forged instrument be one that, if genuine, an action might be brought on it. If it could be used as proof in a suit, either against him whose name is forged or in a suit against any other, whether to sustain a claim made or in defence of one, it is susceptible of forgery. 1 Wharton Cr. Law, §§ 691-2. 5. That there are two counts joined by a copulative instead of a disjunctive conjunction and they therefore form but one offence and the jury must disregard the charge of publishing as a second count. The two counts are not joined in any way in the indictment. They are separate, distinct, and each complete in itself. Besides these five bills there was a motion for a new trial, a motion in arrest of judgment and an assignment of errors. The first is the. usual motion formally made as a precursor to an appeal, but the counsel for the prisoner insisted on arguing it, which the court refused, saying he desired no argument thereon and overruled it. To this refusal a bill was taken. The counsel arraign this refusal as a denial of the prisoner’s constitutional right to be heard. The prisoner had been heard' throughout as the. numerous bills and motions attest, and if any error of law had been committed by the. judge, the proper methods had been taken to bring such error before, the appellate tribunal. An argument on the motion for a new trial on the ground that the verdict is contrary to the law and the evidence, could be only a reproduction of the arguments in the several stages of the trial, and surely the constitutional right of being heard cannot reasonably be construed as meaning that a prisoner’s counsel must be permitted to re-argue ad infinitum all that had been [208] already argued, and to repeat all that has been already said. There must be some restraint of the volubility of counsel, since there must be a limit to the duration of a criminal trial. If a judge has a doubt of the correctness of his rulings or of the jury’s verdict, lie ought to and will grant a new trial, but when ho has neither one nor the other, it is no denial of a constitutional right to refuse to hear argument on the formal motion for a new trial, based alone on the ground that the verdict is contrary to the law and the evidence. The motion in arrest is on the ground that the verdict is an absolute, nullity, for the reason that the indictment failed to specify the matter in which the certificate or attestation was or might have been receivable as legal proof. The indictment is based on sec.. 833, Rev. Stats., which punishes on conviction, whoever shall forge or counterfeit * * any certificate or attestation of any public officer in any matter wherein his certificate or attestation is receivable and may be taken as legal proof; or (shall alter or publish as true any such false, altered, forged or counterfeited certificate or attestation with intent to injure or defraud any person. As the judge of the Second City Court had authority to celebrate marriages and to make certificate of such celebration, his certificate is receivable in proof thereof. Our statutes dispense with setting out any copy or fac simile of the forged or published paper, and do not require that it shall be described by any technical name, but it may be designated by the name which it is usually known. Rev. Stats., sec. 1049. “Marriage certificate” is the name by which “acts of marriage” are usually known. The indictment follows the words of the statute and it is not needful to charge anything more than is necessary to accurately and adequately express the. offence. Wharton Cr. Pl. and Pr., § 158. It is sufficient to state all the circumstances comprised in the definition of the offence as given in the statute, so as to bring the defendant clearly within its provisions. State v. M’Clanahan, 9 Ann. 210. It is neither necessary nor proper to set forth matters of evidence in the pleadings, nor to set forth the kind of suit or matter of contestation in which the forged instrument is receivable in evidence. The assignment of errors is: first, that the “indictment is defective, in that it seeks to charge the commission of a crime unknown to and not contained in the criminal statutes of this State. Second, that the record shews there was no forging or altering of any document recognized in law by or through which the crime of forgery can be committed. There being no forgery committed, the crime of publishing and [209] uttermg cannot exist independent of forgery. Third, that the record shews that the defendant was deprived of the'right of being heard through counsel and by argument, contrary to his vested constitutional right.” This last alleged error has been already disposed of. The second is made on the supposition that the publisher of a forged paper must himself have been the forger, whereas the two acts are altogether distinct and constitute two different and well-defined crimes. One man may have forged a paper and another have published it. The defendant may have been innocent of forgery and guilty of publishing the forged instrument. The crime charged is denounced by the criminal statute already cited, and in its identical words. We find no error tn the rulings of the lower court. Judgment affirmed.