State v. Eades , 68 Mo. 150 ( 1878 )

Norton, J.

Defendant was indicted in the criminal court of Jackson county at its November term, 1874, for forgery. The indictment contains five counts, in some of which defendant is charged with forgery, and in others with uttering the following certificate of indebtedness of the City of Kansas :

Certificate of Indebtedness of the City of Kansas.

State or Missouri, 1 t1,n -vr 17P9 County of Jackson, /SS> f150, 17y2,

This is to certify that the City of Kansas is indebted to John Halpin in the sum of one hundred and fifty dollars, due and payable October 1st 1878, with interest at the rate of ten per cent, per annum from July 10th, 1872. Said indebtedness having accrued on account of the Bluff street bridge.

By order of. the Common Council.

Approved July 8th, 1872.

Henry C. Kumpr, R. H. Hunt,

Auditor. Mayor.

Defendant filed his motion to quash the indictment, which was sustained, and the State brings the case here by appeal. The reasons alleged in the motion to quash are that the crime of forgery is not charged, that the instrument of writing set out is not such as the crime of forgery can be committed of, and that there is no allegation that it is of any value. No brief having been file& by the respondent, we are left to ascertain the specific grounds relied upon to support the objections made.

The indictment is framed on Wag. Stat., see. 16, p. 470, which is as follows : “ Every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another,'by which any pecuniary-demand or 'obligation shall be, or purport to be transferred, created, increased, discharged or diminished, or by which any rights or property whatever shall be, or purport to be transferred, conveyed, discharged, increased, or in any manner affected, * * shall, on conviction, be adjudged guilty of forgery in the.third degree.”

The indictment formally charges the offense as defined by this section, and is in conformity with approved precedents. Whar. Prec., 264. It is, however, claimed that the instrument set out therein is not such as can be the subject of forgery, because the charter of the City of Kansas does not confer on the mayor and common council the power to issue the same. Section 16, supra, is broad and sweeping, in its definition of this grade of forgery, and would seem to embrace, as the subject of it, every false writing made with intent to defraud or injure, which, on its face, would be likely to defraud.

Upon a statute of New York, similar to our own, which came before the court for construction in the case of the People v. Krummer, 4 Park. C. R. 217, it was held that “we are never called upon to determine whether in legal construction the false instrument or writing is an instrument of a particular name or character. It is a matter of perfect indifference whether if possesses or not the legal requisites of a bill of exchange, or an order for the payment of money or the delivery of property. The question is whether, on its face, it will have the effect to defraud those who may act on it as genuine, or the person whose name is forged. It is not essential that the person,-in whose name it purports to be made, should have the legal capacity to make it, nor that the person to whom it is directed be bound to act upon it, as genuine, or have a remedy over. Though all the parties to a bill of exchange are purely fictitious, if it be passed as genuine, it is regarded by the law as forgery. The law looks only to the falsity of the instrument and the fraudulent use of it as genuine.”

Authorities 'are to be found in support of the proposition maintained by defendant, among which may be cited Clinch’s case, 2 East’s Pleas 938, and People v. Wright, 9 Wend. 193. It was, however, observed in the former case that “if the writing purport to be an order which the party has a right to make, although in truth he had no such right, and although no such person existed in fact as the order purports to be made by, it falls within the penalty of the act;” and the latter case, People v. Wright, has been criticised, if not overruled, in the ease of People v. Stearns, 21 Wend. 409.

While conceding that there is a conflict of authority • on the question presented, we are disposed to follow the principle announced in the ease of People v. Krummer, supra, as reflecting the spirit and meaning of the statute as to the class of writings which, under it, are the subjects of forgery, and applying the test there laid dowti to the indictment in question, it is sufficient to require defendant to answer it. Judgment reversed and cause remanded,

with the concurrence of the other judges.

Reversed.