Territory of Montana v. Poulier , 8 Mont. 146 ( 1888 )

Bach, J.

The statute of this Territory, defining forgery and the acts that constitute it, declares that such crime may be committed, by falsely uttering and publishing, as well as by falsely making and forging. These are separate means by which the crime can be committed; and when each of the acts is connected with the same instrument, an indictment, charging the same in separate counts, the first by falsely making and forging, the second by falsely uttering and publishing, is not subject to demurrer for duplicity; for only one offense is charged, to wit, the crime of forging as to one and the same instrument. Where the statute declares an act unlawful, when perpetrated in any one or all of several modes, an indictment may charge the act, in separate counts, basing each count upon the different modes specified; and it is held that the indictment may contain, in one count, an enumeration of all the different modes or means by which the crime may be committed. Thus in Commonw. v. Brown, 14 Gray, 419, the defendant was charged in one count of an indictment with procuring a miscarriage by administering ergot, and also by using an instrument for that purpose; and it was held, that the indictment was not objectionable, on the ground of duplicity. That forgery may be charged, in separate counts, each based upon the different modes of committing the crime, as specified in the statute, is maintained by the following authorities from California: People v. Frank, 28 Cal. 513; People v. Tomlinson, 35 Cal. 503; People v. De La Guerra, 31 Cal. 461; People v. Bhotwell, 27 Cal. 400. But the separate counts must directly, and not inferentially, refer to the same instrument. In this case there is nothing in the second count to show that the instrument there set out, and declared to have been falsely uttered by the defendants, is the same instrument declared upon in the first count. It may be that they are separate instruments, and, if so, then the indictment is clearly bad for duplicity. We cannot infer that the two instruments are in fact but one, merely because they contain the same words, figures, and dates. (See People v. Shotwell, 27 Cal. 400; People v. Thompson, 28 Cal. 215.) The judgment of the court below, sustaining the demurrer to the indictment, is affirmed.

Judgment affirmed.

De Wolfe, J., and Liddell, J., concur.