Wishard v. State , 5 Okla. Crim. 610 ( 1911 )

The first question presented for our consideration relates to the sufficiency of the indictment. It is insisted that the trial court erred in overruling the demurrer. In support of this contention it is argued that:

"If the state in this case would justify the form of indictment, it can do only by taking one of two positions: First, that it follows the language of the statute; or, second, that it follows the common law form. That said indictment is not direct and certain as regards the offense charged and the venue thereof, and is defective in that does not specify in what the forgery consists, sufficient to charge the defendant and give notice of the nature of the crime he is to defend against. That it does not allege the property purported to be conveyed is in existence. That it does not allege that the Rossiters had title thereto or what interest they had in the land purported to be conveyed."

It is also contended that:

"There is a fatal contradiction in the allegations of the indictment, in that the allegation is that the instrument purports to be the act of other persons, to wit: ``one John Rossiter, one J.C. Rossiter and one Julia Rossiter, when the copy of said instrument following shows that it purports to be the act of J.M. Rossiter, Julia Rossiter, and J.C. Rossiter. And that the same defect arises in charging who was intended to be defrauded, wherein it says: ``To then and there cheat and defraud the said John Rossiter, and said J.C. Rossiter and the said Julia Rossiter.' And that in said indictment the words, ``diminished' and ``bound', are used to show the effect that the purported forgery had upon the property of the Rossiters, none of which words are to be found in the statute defining forgery in the first degree."

"Forgery was a misdemeanor at the common law. From the earliest times in the history of the criminal law of England statutes have been passed upon the subject. As early as 1413 a statute (1 Hen. v., ch. 3) was enacted which recited that many persons had been deprived of their property by false deeds, wherefore it was enacted ``that the party so grieved shall have his suit in that case, and recover his damages; and the party convict shall make fine and ransom at the King's pleasure.' Again, the English statute of 5 Eliz., ch. 14., sec. 2) prohibited the making or forging of any false deed, etc., to the intent that the state of freehold or inheritance of any person in lands, etc., shall not be molested, troubled, defeated, recovered, or changed; ``and the third section fixes a penalty for any person to forge or make any false charter, deed or writing, to the intent that any person shall have or claim any estate or interest for term of years of, in or to any lands. The forgery of deeds was made felony, without benefit of clergy, by 2 Geo. II., chapter 25. The precedents framed under the English statutes, and especially those under the second section of (Eliz., ch. 14) on account of the particular phraseology of the enactments, uniformly set out the title of the party whose estate in the land was intended to be molested.' (2 Starkie, Crim. Law, 481; 3 Chit. Crim. Law, 1062.) ``Legislation in England has in recent times rendered unnecessary the mention of the name of the person to be defrauded, permitting simply a general allegation of fraudulent intent.' 24 and 25 Vict. c. 98; 2 Bishop's New Crim. Proc., par. 425b."

Testing this indictment by the rules of the common law, which prescribes the averments necessary to be made in an indictment for forgery, it would probably be sufficient. The indictment charges a violation of section 2560, Snyder's Sts., providing that:

"Every person who, with intent to defraud, forges, counterfeits, or falsely alters: 1st, Any will or codicil of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is or purports to be transferred, conveyed or in any way changed or affected; * * * is guilty of forgery in the first degree."

Under the statute, there are three essential elements in the offense here charged: First, a deed apparently valid; second, a fraudulent intent on the part of the accused; and third, that the signatures thereto were forged. We have carefully analyzed the indictment, and while it must be conceded that it is subject to criticism for redundancy, prolixity, unnecessary particularization, and superfluous terms, our conclusion is that the numerous objections thereto are not well taken. The indictment charges every essential element of the offense of forgery in the first degree as defined by the statute, and is otherwise sufficient.

Technical objections as to defect in matter of form only, and not relating to the substantial requirements of an indictment, which do not tend to the prejudice of the substantial rights of the defendant upon the merits, cannot avail under the provisions of our criminal code.

Section 6697, Snyder's Sts., provides:

"The indictment must be direct and certain as it regards: 1. The party charged. 2. The offense charged. 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense."

Section 6701, Snyder's Sts., provides:

"When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material."

Section 6705, Snyder's Sts., provides:

"No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

Section 6706, Snyder's Sts., provides:

"Neither presumption of law, nor matters of which judicial notice is taken, need be stated in an indictment."

The objections made are purely technical. Counsel does not attempt to show the court that defendant was in any respect mislead as to the transaction he was called upon to defend against. Can it be said that there is any ambiguity in this indictment that could mislead the jury or leave the defendant doubtful as to the true import of the charge?

The jurisdiction of the offense in Blaine county is sufficiently alleged. The omission of the word "territory", in alleging the place where the crime was committed, could not deprive the defendant of any substantial right. All reference made in the indictment prior to the one complained of refers to the state of Oklahoma. The state was the successor of the territory with reference to this particular offense, and jurisdiction was conferred on the district court of Blaine county, state of Oklahoma, to hear and determine all prosecutions as to offenses committed within the boundaries of that county prior to statehood. Proof that the offense was committed within Blaine county, Oklahoma Territory, now comprising Blaine county, state of Oklahoma, would not be a variance from the allegation of the indictment. While this indictment is in the name of the state, it alleges that the acts complained of were "contrary to the form of the statute in such cases made and provided," and this means against the statute in force at the time the offense was committed, and continued in force by the Enabling Act and the Constitution. Faggard v. State,3 Okla. Cr. 166.

The object of setting out the forged instrument in the indictment is twofold: First, to enable the court to determine from its tenor whether or not it is a proper subject of forgery; second, to advise the defendant of the precise offense charged, and of the particular instrument upon which the charge is founded. The slight variance in the names alleged was immaterial, provided that defendant was not mislead thereby. In this instance, he could not have been mislead, because the alleged forged deed is set out in full, and the identity of the parties therein named is unquestioned.

The courts of Oklahoma take judicial notice of governmental surveys and subdivisions of land thereunder, and will take judicial knowledge of the fact that the land described in the indictment is in existence. It was therefore unnecessary to allege this fact. It was also unnecessary to allege title thereto. The land which the alleged deed purported to convey has an actual potential existence, definitely described and located. The alleged deed on its face purports to transfer the title to said land, and was complete in itself for that purpose. It did not require the allegation of extrinsic facts to render its deception complete, and it was duly filed for public record in the office of the register of deeds of Blaine county. The right or interest in the property purported to be transferred, conveyed, or in any way changed or affected, is a mere matter of evidence bearing upon the intent to defraud.

It is apparent that fraud by means of a false or forged deed may be perpetrated not only upon the owner of the land, but upon strangers to the title who may be induced to rely upon the genuineness of the forged deed to advance money for the purchase or loan money upon the faith of the apparent legal validity of such instrument.

Mr. Bishop says:

"The intent to defraud any number of victims may be laid in one count, which will not thereby be rendered double, and the allegation will be sustained by proof of it as to any one of them." (2 Bish. New Cr. Proc., par. 425a.)

"The intent is presumed, to defraud the person whose name is forged, without the testimony of witnesses, from the forgery itself. So is the intent to defraud the one to whom the defendant, with knowledge of the forgery, passed or offered the forged instrument for value. In aid of this presumption, or as applicable in cases affording no scope for it, other proofs may be adduced." (2 Bish. New Cr. Proc., par. 427a.)

"It is the essence of forgery that it should be with fraudulent intention. It has also been shown that such intention is to be inferred from facts; and that scienter may be shown by other forgeries and fraudulent utterings. A general intent to defraud is enough. It is not necessary that it should appear that the intent was pointed at any particular person." (Wharton's Cr. L. [10th Ed.] sec. 717.)

We are inclined to think that where the instrument alleged to have been forged is a deed containing a description conforming to a governmental survey and subdivision, and appears to be complete on its face, by which any right or interest in said described real property is or purports to be transferred, conveyed, or in any way changed or affected, all that would be necessary to allege is that the forgery was done with intent to defraud. Where, however, as in this case, the names of the persons intended to be defrauded are alleged in the indictment in stating the intent to defraud, it is sufficient to describe the persons intended to be defrauded with reasonable certainty; but it is unnecessary to allege what interest, if any, they had in the land purported to be conveyed.

Error is assigned upon the action of the court in overruling the motion, made by the defendant at the close of the state's evidence, to advise the jury to acquit. Under this assignment it is contended that the evidence offered was insufficient to prove that this defendant was concerned with the commission of the offense charged, and that there is a fatal variance between the allegations in the indictment and the evidence. What we have heretofore said in this opinion in considering the sufficiency of the indictment is equally applicable to the proof on the question of variance. The sufficiency of the evidence showing the commission of the crime and the guilt of the defendant is not a question for the court, if there is any evidence showing these facts. In this case the conclusiveness of the facts and circumstances, as shown by the evidence, corroborated by the admissions of the defendant, as testified to by witnesses for the state, was not for the court to determine. It is the exclusive province of the jury to weigh the evidence and determine the facts. The motion to direct a verdict of acquittal was properly overruled by the court.

It is contended that the court erred in giving to the jury instructions numbered 2, 4, 5, and 6, respectively. No authorities are cited in support of this assignment. Said instructions are as follows:

"2. All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, may be indicted, tried and punished as principals."

"4. It is not necessary, to constitute the offense of forgery of a deed to land, that the person or persons charged with such offense intended to defraud or injure any particular person, or that any particular person was injured or defrauded by the forgery, but it will be sufficient to constitute the offense if it is established that the accused, or that he and others acting with him, and aiding and abetting in the commission of the offense, with intent to defraud, signed the name or names to such deed of the person or persons who purport to be the makers thereof, and that the name or names were signed without authority from such person or persons so to do, and it further appears that the deed, if true and genuine, would have the effect to transfer, convey or otherwise affect the interest of the person or persons whose act it purports to be, in the land described in such deed. Nor is it essential that the purported makers of the deed, in fact, had any interest in the land described therein, but it must appear that the land described did exist at the time of the alleged forgery."

"5. Bearing in mind the foregoing definitions and carefully applying these instructions to the evidence, if you believe beyond a reasonable doubt, that on or about the 31st day of August, 1906, in this, Blaine county, then in the territory of Oklahoma, J.C. Evans and P.F. Tyler, or J.C. Evans and P.F. Tyler and others, acting together and aiding and abetting each other, and with intent to defraud J.C. Rossiter, J.M. Rossiter, and Julia Rossiter, did write and sign, or with such intent to defraud, did procure or cause to be written and signed the name of J.C. Rossiter, J.M. Rossiter, or Julia Rossiter to the instrument set out and described in the indictment, and further find that said instrument was so signed without authority so to do; then the said J.C. Evans and P.F. Tyler are guilty of forgery of said instrument, and the offense will be forgery in the first degree; and if you so find and further believe beyond a reasonable doubt that the defendant, W.S. Wishard, knowing an intent of the said Evans and Tyler to defraud, induced or encouraged them to commit such offense, or to procure the commission thereof, then you should find him, the said W.S. Wishard, guilty of said offense of forgery in the first degree and so say by your verdict. If you do not so believe, you must acquit the defendant and say by your verdict ``not guilty.'"

"6. You are instructed that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense; nor, can one accomplice corroborate another. An accomplice, as the word is here used, means any one connected with the crime committed, either as principal offender, as an accomplice, as an accessory, or otherwise. It includes all persons who are connected with the crime by unlawful act or omission on their part transpiring either before or at the time of the commission of the offense and whether or not he or she was present and participated in the commission thereof. And if you find that the deed set out in the indictment was forged and that any witness who has testified herein against the defendant was or is an accomplice, as above defined, then you must disregard the testimony of such witness in so far as the same is against the defendant, unless corroborated as above stated."

There was no request for other instructions on the part of the defendant.

While instruction No. 4, considered by itself, is too general, it is properly limited by instruction No. 5. It is the duty of the jury to consider all the instructions together, and if when so considered they fairly state the law, this is sufficient. A cause should not be reversed because some one of the instructions may state the law without sufficient qualification. The principle that an instruction, which is general in its character, may be limited or qualified by other instructions given, does not contravene the rule that "material error in one instruction calculated to mislead is not cured by a subsequent contradictory instruction." We believe the instructions given, considered as a whole, fairly and fully state the law applicable under the evidence in the case.

It is also contended that: "The verdict and judgment is contrary to the evidence and contrary to the law." In support of this assignment it is argued that:

"The defendant Wishard had nothing to do with the getting of the deed from J.M., J.C., and Julia Rossiter to Elwood Rossiter; that he was not present at any of these transactions; that his letter to Pete Tyler clearly shows that he was expecting bonafide deeds to the land; and that there is absolutely no competent evidence connecting Wishard with the forgery of the deed on August 31, 1906."

The theory of the prosecution was that Wishard, Tyler, and Evans conspired together to defraud the Rossiters. The testimony shows that this defendant, as deputy county attorney, approved and filed several complaints against members of the Rossiter family. The complaints were all based upon the proceedings had in connection with a civil suit concerning the ownership of a set of harness. In one of these cases Tyler secured two hundred dollars as an attorney fee and gave one-half of it to this defendant. The letter of this defendant to Tyler shows that it was their common purpose and design to defraud the Rossiters out of the land described in the alleged forged deed. His admissions upon the witness stand are sufficient, in connection with his letter to his codefendant Tyler, to sustain the verdict.

Section 2045, Snyder's Sts., provides:

"All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals."

A conspiracy may be defined generally as a combination of two or more persons by some concerned action to accomplish some criminal or unlawful purpose or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means. Mr. Greenleaf says:

"The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all; and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed, in law, a party to every act which had before been done by the others and a party to every act which may afterwards be done by any of the others in furtherance of such common design." (Greenleaf on Ev., sec. 111.)

"In cases of crimes perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator, or accomplice, in the prosecution of the enterprise, is considered the act or declaration of all, and therefore imputable to all. All are deemed to assent to, or command, what is said or done by any one in furtherance of the common object. A foundation, however, must first be laid aliunde, by proof sufficient, in the opinion of the court, to establishprima facie the fact of conspiracy between the parties; the question of such conspiracy being ultimately for the jury." (Wharton's Cr. Ev. (9th Ed.) 698.)

It is an undisputed fact that the signatures to the alleged deed were forged. We think the evidence is conclusive; that this defendant was an accessory before the fact. Our statute abolishes the distinction between accessories before the fact and principals. By it all accessories before the fact are made principals. As the acts of the principal are thus made the acts of the accessory, the latter may be charged with having done the act himself. We believe the evidence clearly shows that it was the common purpose and design of the defendants to defraud the Rossiters by securing for themselves the land described in the alleged forged deed. It would be immaterial whether or not their original purpose and design may have been to secure said land by fraudulent means other than the alleged forgery.

As a general rule, in cases of conspiracy, each conspirator is criminally responsible for the acts of his confederates committed in furtherance or in prosecution of the common design, or for any act which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original purpose or design. Whether the evidence tending to prove the unlawful purpose of conspiracy is sufficient and that the forgery alleged was in furtherance of the common purpose and design, were questions for the jury to determine. On the other hand every person entering into a conspiracy or common design already formed is deemed in law a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design. It is a conceded fact that this defendant was present the morning following the day of the forgery and with his codefendants executed and delivered their deed to the land described in the indictment. In explanation of this, the defendant testifies that the deed was executed for the purpose of securing to him an attorney fee to defend the Rossiters. As a matter of fact, he as deputy county attorney had represented the state in filing the criminal complaints, and was therefore disqualified to act as attorney for the Rossiters.

As a general rule, where there is evidence of a conspiracy to commit a crime, and of its subsequent commission, the state may, in support and corroboration thereof, show any act of the original conspirators intermediate the conspiracy and the crime which apparently recognizes the existence of the conspiracy, and reasonably indicates preparation to commit the crime, or preserve its fruits, and this notwithstanding such special act or preparation was not the one discussed or agreed upon by the conspirators.

Without going further into the testimony, we are clearly of the opinion that the verdict of the jury is abundantly sustained by the evidence.

The record contains the following recital:

"Now on this 9th day of October, 1909, jury returned into open court, all parties being present.

"Thereupon the court inquired of the jury if they had arrived at a verdict.

"Whereupon, one of their number stated, ``We disagree in finding the cause of this forgery.'

"Whereupon, the court informed them that if they had not agreed they could return to their jury room for further deliberation, and also stated to said jury that ``If they could not agree they had all of the next week in which to deliberate.'"

There was no exception taken to the statement of the court at the time it was made, but the statement was assigned as one of the grounds in the motion for a new trial. It is now insisted that the court sought to coerce a verdict. Evidently from the failure to take an exception, the claim of coercion is an afterthought. The length of time during which a jury should be required to consider a case is within the sound discretion of the trial court, and this court will not interfere with the exercise thereof unless manifestly abused. It is impossible to state any rule by which to determine what language by the court is sufficiently coercive to invalidate a verdict. This depends upon the circumstances of each case. We do not think that the statement of the court was calculated to prejudice the rights of the defendant. No court would, by mere physical exhaustion, force a verdict when satisfied that failure to agree resulted from conscientious difference of judgment as to the weight of the evidence. It is the duty of the court to detain the jury until satisfied that failure to agree springs from that cause, and that alone. It must then be left to the sound discretion of the trial judge to determine how long the jury shall be detained, and what, if anything, shall be said as to the probable length of the detention. Unless this judicial discretion is abused, the verdict should stand.

There being no error in the record prejudicial to the substantial rights of the defendant, the judgment of the district court of Blaine county is hereby affirmed.

FURMAN, PRESIDING JUDGE, and ARMSTRONG, JUDGE, concur.