State v. Frasier , 94 Or. 90 ( 1919 )

BEAN, J.

The overruling of the demurrer to the indictment is assigned as error, and several objections and exceptions to the testimony are upon the ground of the insufficiency of the charge.

The contention is made that by reason of the allegation in the indictment that the defendant did “wrongfully and unlawfully and feloniously, utter and publish, as true and genuine, to one A. M. Cannon, as Referee in Bankruptcy, a certain false and forged writing,” etc., if the indictment is sufficient to constitute a crime, the question would be one for the federal courts and not in the state courts.

Section 1996, L. O. L., declares inter alia that if anyone shall falsely make, alter, forge or counterfeit any writing, obligatory promissory note evidence of debt, indorsement, check “or any receipt for money or other property, or any acquittal or discharge for money or other property, ’ ’ with intent to injure or defraud anyone, or shall with such intent knowingly utter or publish as true or genuine any such false, altered, forged or counterfeited writing, instrument, or matter whatever, such person, upon conviction thereof, shall be punished.

It is clear that the statute of this state denominates the utterance of a forged receipt as a crime against the laws of this state, and the courts of this state have jurisdiction of the crime unless precluded by some federal law. This is conceded, but it is contended that as the forged instrument is alleged to have been passed to A. M. Cannon, as referee in bankruptcy, the courts of the United States have exclusive jurisdiction over the offense.

1-4. Where a court has jurisdiction of a crime, a statute simply conferring the same jurisdiction on another court does not deprive the former of its jurisdiction, in the absence of an express provision or clear implication to that effect, but merely confers concurrent jurisdiction. In some cases the jurisdiction of the federal courts over offenses is exclusive of the jurisdiction of the state courts, while in others it is concurrent: 16 C. J., §§ 173, 174, pp. 150, 151. The criminal jurisdiction of the federal courts is confined to crimes under federal statutes, except as to common-law offenses committed on the high seas or in places or districts within a state which have been ceded by the state to the United States, and which when the crime was committed were under the exclusive jurisdiction of the United States. Offenses which. are directed against the sovereignty of the state or which affect its population are- within the jurisdiction of the' state courts, although such offenses may also be directed against the sovereignty of the federal government, and may be thus within the jurisdiction of both the federal and the state courts: 16 C. J., § 185, p. 160. We will assume without deciding that the federal courts would have jurisdiction of the offense charged. It is unnecessary to go further. Where certain acts constitute forgery under the laws of the state the jurisdiction of state courts is not ousted by the fact that the same acts are also an offense under the laws of the United States: 19 Cyc., p. 1391. The courts of this state have jurisdiction of the crime referred to in the indictment whether or not the United States courts have jurisdiction of such crime: Territory of Oregon v. Coleman, 1 Or. 191, 192. In Cross v. North Carolina, 132 U. S. 131 (33 L. Ed. 287, 10 Sup. Ct. Rep. 47, see, also, Rose's U. S. Notes), it was held that: A state is not deprived of jurisdiction over a person who criminally forges a bill of exchange or promissory note with intent to defraud, in violation of its statutes, or of its power to punish the offender committing such offense, by the fact that he follows this crime up by committing against the United States the further crime of making false entries concerning such bill or note on the books of a national bank, with intent to deceive the agent of the United States designated to examine the affairs of the bank, and in violation of the statute of the United States in that behalf. It is stated in 12 E. C. L., Section 16, page 152, as follows:

“The courts of the states and territories may punish the forgery of treasury notes of the United States, although Congress has passed an act for the punishment of such offenses.”

As to the place where the alleged forged instrument was published, it does not appear either from the allegations of the indictment or the testimony that such place was ceded to and under the exclusive jurisdiction of the United States as- provided by Section 711, United States Revised Statutes: U. S. Comp. Stats. (1916), §1233; 5 Fed. Stats. Ann. (2 ed.), p. 922, see, also, 8 R. C. L., § 57, p. 98. The cases cited by the defendant upon this point are mostly where the prosecution of the crime is within the exclusive jurisdiction of the federal courts being a violation of the United States statute, as prosecution for perjury in making a. false oath under the Homestead Act of Congress, or in swearing falsely before the register of the United States land office in a proceeding touching the public land, and not a violation of the state statute.

The further contention is made: First. That the indictment does not state facts sufficient to constitute a crime, in that the indictment contains no allegation of appointment of Mr. Cannon by any court. Second. That in order to be the subject for forgery, the instrument upon its face must if it were genuine be of some benefit, force or effect or injury to another. It will be observed that the instrument in question is alleged to have been forged and is set out in full in the indictment. The manner in which it is'set forth in an indictment is criticised by the defense, especially that part of the indictment which states, “bearing the indorsement ‘T. W. Harris.’ ” It should be borne in mind that the indictment further states ‘ ‘ the said writing, check, receipt and instrument being in the form of and purporting to be an indorsed, canceled and paid check,” therefore it is apparent from the face thereof that it is the forged instrument that is set out therein and that the words “bearing the indorsement” refer to the purported instrument only, and is not an allegation that the check was indorsed by T. W. Harris.

5. According to the later doctrine, where an indictment alleges that- an instrument is “forged,” it sufficiently imputes falsity to the instrument so that the pleader in setting out the instrument may aver that the defendant forged “a certain will” or “a certain false, etc., paper writing purporting to be the last will” that is the words “purporting to be” may be omitted: Wharton’s Criminal Pleading & Practice (9 ed.), § 184; Wharton’s Criminal Law (10 ed.), § 738.

In the indictment in question the instrument is described as a false and forged “writing, check, receipt and instrument being in the form of and purporting to be an indorsed, canceled and paid check, and being in words and figures as follows, to wit”: Then follows: a copy of the check with the indorsement, words, figures and marks thereon. Hence it is not essential that the words “purporting to bear indorsement of T. W. Harris” should be employed as the check or receipt had already been described as “purporting to be an indorsed, canceled and paid check,” and there is no room for misunderstanding in regard thereto.

6, 7. As to the effect of the instrument alleged to be forged and to have been uttered, it should appear from the indictment that it is prima facie, capable of being used as legal proof in some way; for example, as a receipt in a suit against the forger by the person whose receipt is forged: Wharton’s Criminal Law (10 ed.), § 739; 19 Cyc. 1394. It cannot be questioned but that in an action by T. W. Harris to recover money of defendant Frasier, the document described in the indictment, if genuine, could be used as legal proof of the payment by defendant of the amount of the check. It is well known in the business world that a canceled check, or check indorsed and stamped “Paid,” serves as a voucher or receipt for payment of the amount of money named in the check. In Wharton’s Criminal Law (10 ed.) (Kerr), Section 672, the author states:

“An instrument, to be the subject of forgery, must be one within the statute, and which, if genuine, would have some legal effect, but it is not necessary that it should be shown to be a perfect instrument, and it is unnecessary for the indictment or information to allege how the instrument would create, increase, diminish, or defeat a pecuniary obligation, or how it would transfer or affect the title to property. Thus, a receipted bill for goods charged to have been forged, being set out, and purporting on its face to be an instrument which may be forged under the statute, the indictment or information need not contain further allegations to show that it was such an instrument, or to show how it could be used as an instrument of fraud, or that it was so used, in fact. It is not necessary to allege the existence of the debt, the discharge of which the instrument alleged to be forged was intended to represent, except under unusual circumstances; or that accused was indebted to the person intended to be defrauded by such receipt. * * ”

See, also, State v. Dunn, 23 Or. 562 (32 Pac. 621, 37 Am. St. Rep. 704).

It is elementary law that an ordinary receipt or acquittance may be the subject of forgery: Section 1996, L. O. L.; 2 Bishop’s New Criminal Law, § 529. A receipt is defined as “A written acknowledgment of payment of money or delivery of chattels”; 2 Bouvier’s Law Dictionary, p. 832. See, also, 7 Words and Phrases, p. 5987. In the case of Kegg v. State of Ohio, 10 Ohio, 75, it was held that an indorsement on a note of a partial payment, in the handwriting of the maker, without any signature, but made in the presence, with the concurrence, and by the direction of the payee, is a receipt, the alteration of which by the payee is forgery. “ ‘Settled, Sam. Hughes,’ at the foot of a bill of parcels, was held to support an allegation of a receipt without any explanatory averment”: Wharton’s Criminal Pleading & Practice (9 ed.), § 185.

8-13. It is the general rule that if an indictment is based upon a statute it is sufficient if it follows the wording thereof. It was not under our statute absolutely necessary to allege to whom the receipt was uttered or passed. It being alleged that it was published to A. M. Cannon, as referee in bankruptcy, it was necessary for the proof to show the same. This, we tbi-nk, could be done under the allegation of an indictment by showing that he was acting as a referee in a bankruptcy matter by appointment of the federal court. Under our statute, it is not necessary to set out the tenor of the instrument alleged to have been forged: See Form 15, p. 1013, L. O. L.; State v. Childers, 32 Or. 119 (49 Pac. 801); 19 Cyc. 1398. The name of the person defrauded need not be inserted in the indictment: Section 2004, L. O. L.; State of Oregon v. Lurch, 12 Or. 99, (6 Pac. 408); State v. McElvain, 35 Or. 365 (58 Pac. 525).

14-16. This case is entirely different from that of People v. Cole, 130 Cal. 13 (62 Pac. 274), cited among others and relied upon by counsel for defendant, in which it was alleged in the indictment that the defendant published and attempted to pass to one L. a certain forged check “as the true and genuine check of S. B. Smith,” the check being set out in haec verba and signed “E. J. Cole,” indorsed on back “S. B. Smith,” with intent, etc. The check did not purport to be signed by S. B. Smith but by E. J. Cole, the defendant, and it was held that the check showed upon its face that it was not forged, but rightly signed by the defendant; that if the indorsement of S. B. Smith was forged, the information should have so stated. In the instant case the indictment shows that the whole document, including the check, indorsement, impression and marks, is alleged to be forged, and to have been passed as true and genuine as evidence of the payment of a debt, that is, as the receipt or acquittance of T. W. Harris. The charge does not state or imply that the indorsement of T. W. Harris was forged 'for the purpose of making him appear to be liable as an indorser on the check, except in so far as the whole instrument taken as a voucher or receipt might show liability. The- averment that the instrument was published to A. M. Cannon, as referee in bankruptcy, as a receipt as evidence of the payment of a debt, was all the extrinsic facts necessary to set out, in addition to the instrument itself, to show that the receipt, if it were genuine, would be of force as legal proof, so as to comply with the rule in 2 Bishop on‘ Criminal Law (7 ed.), Section 545, and 1 Wharton’s Criminal Law (10 ed.), Section 740. [Where the meaning of the transaction can be sufficiently extracted from the instrument itself, it is not necessary to state matters of evidence so as to make out more fully the charge: 1 Wharton’s Criminal Law (10 ed.), § 740, p. 674. The document not being in the regular form of a receipt, it was appropriate to state in the indictment that it was published as true and genuine as evidence of money paid on a debt. Thus the whole transaction was displayed in the indictment with such a degree of certainty to fully inform the defendant of the nature of the offense with which he is charged and to enable a person of common understanding to know what is intended and to prepare for his defense, and is sufficient under the statute: See Form 15, p. 1013, L. O. L.; State v. Mishler, 81 Or. 548 (160 Pac. 382). Section 1449, L. O. L., provides:

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

Therefore, there was no error in overruling the demurrer to the indictment nor in admitting in evidence the order of the federal court appointing A. M. Cannon as referee in bankruptcy, and evidence of the proceedings in bankruptcy in the bankrupt estate of Edward J. Frasier, the defendant, as a part of the circumstances of the transaction relating to the canceled check. The weight of authority appears to be to the effect that the name of the person to whom the forged instrument was uttered or upon whom passed need not be set out, in the absence of a statutory provision requiring it to be done: 1 Wharton’s Criminal Procedure, § 675. Our statute does not contain such a requirement. Hence the averment that the receipt was published to A. M. Cannon as referee, etc., was sufficient, in order to admit the proof of the official character of A. M. Cannon. There was no error in overruling the objection of defendant to such proof upon the ground that the indictment was insufficient in that respect. The purpose of this averment was not so much to show the name of the person or officer to whom the receipt was uttered as to indicate the manner in which the spurious receipt was attempted to be made available.

It is claimed by defendant that the averments of the indictment should recite the indebtedness of the defendant to T. W. Harris, and also that the court erred in admitting over the objections and exceptions of counsel for defendant proof of such indebtedness, for the reason that the indictment did not contain such an averment.

17. A receipt ror money paid is not sucb an instrument that an indebtedness from the person to whom it purports to be given, to the apparent maker of it, need be shown in the indictment; because, if in fact there were no such indebtedness, still the party giving it would be liable for the money acknowledged to have been received: 1 Wharton’s Criminal Procedure (10 ed.) (Kerr), § 672; 2 Bishop’s New Criminal Law, § 546, subd. 5.

18. If a defendant has altered a genuine instrument, he may be charged with the forgery of the entire instrument: 19 Cyc. 1394c; People v. Brotherton, 47 Cal. 388. In the case at bar, the whole receipt is alleged to be forged. The indorsement of T. W. Harris appearing on the canceled check served as a signature to the receipt just as effectively as if it had appeared after the statement that the check was paid. It is not essential in an indictment for forgery to aver separately as to each part of the instrument alleged to be forged that snch parts were forged. It was therefore competent over the objections and exceptions of the defendant for the state to prove that the signature of T. W. Harris was not genuine, and all of the circumstances in relation to the canceled check including the testimony in relation to the fraudulent stamping and perforating the same as paid. Most of the objections of the defendant to the testimony are based upon the insufficiency of the indictment and need not be further adverted to.-

Defendant at the close of the case moved the court to direct a verdict of not guilty. This raises many of the questions presented in the case which have already been referred to.

As we understand the position of the defendant the motion for a directed verdict is made and here urged upon the ground that there is no basis for the testimony introduced by the state adduced to show that the receipt was spurious. Referring again to the indictment, the question is asked in defendant’s reply brief: “What writing was forged?” Was the check, receipt or instrument forged, or was it some other part of the paper that was forged? Answering this question again, the indictment alleges that the whole instrument was forged. The receipt is not referred to in the indictment as “check, receipt, or instrument,” as in the question, but as £ ‘.check, receipt and instrument,” only one document is referred to under the different names.

Considering the motion to direct a verdict from the record, the testimony tended to support the allegations of the indictment and to' show that on August 11,1917, the defendant presented the canceled check” or receipt to A. M. Cannon, as referee in bankruptcy, in the matter of the claim of Dr. T. W. Harris for about $153 against the bankrupt estate of defendant, to which objection had been made, and represented that the check had passed through the bank upon which it was drawn, and had been paid as shown by the stamp thereon, and that the claim of Dr. Harris had been paid. The testimony indicates that the check which forms a part of the receipt was never indorsed by T. W. Harris, had never been presented to or paid, stamped or marked by the bank and that the receipt was a forgery; that on October 8, 1909, a check of defendant’s for $69 was received by Olds, Wortman & King, of Portland, Oregon, and credited to defendant and paid on October 11, 1909, in due course of business by the First National Bank of Eugene, and charged to defendant’s account; that among the stubs of the checks of defendant was one for $69, apparently written on October 6, 1909, to Olds (the next word beginning with W., the remainder of the word not being discernible) & King. So that one investigating the questioned check at the bank would find that a check for $69 was charged to defendant’s account at about the date of'the check in question. The testimony further tended to show that the form of the check which is a part of the instrument questioned was not in use by the bank named at the time the check purports to have been drawn, nor of the date of its cancellation; that the cancellation by perforation was not done with the machine of that bank, and that the rubber stamp with which the encircled “P” was put on the instrument was not the stamp of that bank.

19, 20. It is not our province to consider the weight of the evidence; suffice it to say that it strongly supports the verdict. There was no error in denying the request to direct a verdict of not guilty. Exception is saved to that part of the charge of the court to the jury which is as follows:

“The indictment in this case charges that the check and the alleged indorsement and other matters appearing thereon to which your attention has already been called constitute.a receipt.' It is the claim of the state that that was used in being uttered to Mr. Cannon, the Referee in Bankruptcy.

“The indorsement on the check is a material matter. It is alleged that the indorsement is a forgery of the name of T. W. Harris and it would be necessary for the state to prove by evidence to your satisfaction beyond a reasonable doubt the fact of the falsity of the instrument, and thaCwould include the indorsement of the name of T. W. Harris. It is the theory of the state that the name of T. W. Harris was forged on the check and that taken together it operated and was used as a receipt for money paid. * * ”

21. The indorsement of the check, as we have already stated, functioned as the signature, and tendered to show that the check had passed through the hands of T. W. Harris. We think the trial court correctly charged the jury and fairly submitted the question to that tribunal. A careful examination of the instructions of the court to the jury does not disclose that the instruction quoted was out of harmony with the ruling of the court during the trial of the cause. At' the appropriate time, the defendant filed a motion for a new trial based, among other things, upon errors of law occurring at the trial and excepted to by the defendant, and also newly discovered evidence, and assigns the overruling of the motion as error. All of the questions except that in relation to newly discovered evidence we think have been sufficiently detailed.

22. The Civil Code was so amended by the General Laws of Oregon, 1915, page 96, as to allow an appeal from an order setting aside a judgment and granting a new trial; but an order denying a motion for a new trial is not an appealable order. The amendment referred to does not apply to criminal actions: State v. Pender, 72 Or. 94, 109 (142 Pac. 615). The amendment of this Section 548, in 1915, did not change the statute in this respect. Hence, we cannot consider this motion. An examination of the affidavit for a new trial, however, leads us to believe that the court in no way abused its discretion in the matter.

23. Complaint is made that some of the account-books which were exhibits in the case were removed from the courtroom during the argument. It appears that they were returned and an offer was made by the counsel for thé state to have them sent to the jury while they were deliberating, but objection being made by defendant’s counsel they were not so disposed of. We find no exception taken in regard to the matter or any ruling made by the court. It does not appear that the defendant was in any way prejudiced.

Finding no error in the record, the judgment of the lower court must be affirmed.

Affirmed.

McBride, C. J., and Benson and Bennett, JJ., concur.