Hepburn v. Chapman , 109 Fla. 133 ( 1933 )

On the original hearing it was contended that the instrument of writing set forth in the information, and alleged to have been forged, was not a writing obligatory, within the meaning of those terms as used in Section 7324 C. G. L., for certain reasons discussed in our former opinion. On re-hearing it is contended that such writing, as described and set forth in the information, is not a writing obligatory because it is notunder seal. While this point was not argued on the original hearing, it was perfectly obvious from the record that the written instrument set forth in the information, and alleged to have been forged by the defendant, was not a sealed instrument, and the significance of that fact was overlooked both by counsel and the Court. In view of the general allegation in the petition for the writ of habeas corpus that said instrument is not a writing obligatory under section 7324 C. G. L., and not such a writing as is the subject of forgery under the criminal law of this State, the question of law now contended for was impliedly raised, and in as much as it concerns a fundamental question involving the liberty of the petitioner, we deem it our duty to consider the effect of the absence of a seal from the instrument upon the rights of the petitioner, in spite of the failure to argue the question or call it to the attention of this Court upon the original hearing.

It has been contended all along by counsel for the petitioner that the information, in order to be valid, must have set forth some instrument made the subject of forgery by the statutes, and that the only class of instruments described in the statute which could possibly apply to the instrument set forth in the information is that class of instruments comprehended by the words "writing obligatory" as contained in the statute, and that the instrument as set forth in the information did not constitute a writing obligatory, for the reasons discussed in our previous opinion; and now the additional reason above named is insisted upon. The reasons advanced by the petitioner on the original hearing were not sufficient, as pointed out in our previous opinion, in a collateral attack by habeas corpus, to authorize the discharge of the petitioner from custody, and as to the points of law thus raised and discussed we see no good reason for departing from the disposition made of them in our former opinion.

It was impliedly, if not expressly, admitted in our previous opinion, that the instrument alleged to have been forged must have constituted a "writing obligatory" in order to come within any of the classes of instruments made the subject of forgery by the statute referred to, and we are still of that opinion. If it were not a writing obligatory, then it does not come within the statute at all. It might be well at this point to set out the statute in full, as it appears in the Compiled General Laws of 1927.

"7324. (5206) Forgery. — Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, justice of the peace, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as legal proof; or a charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be punished by imprisonment in the State penitentiary not exceeding ten years, or in the county jail not exceeding one year. (Ch. 1637, Acts 1868, Sub-Ch. 5, Sec. 1, consolidated with Ch. 4202, Acts 1899, Sec. 6.)"

We are also disposed to concede the correctness of the contention made in behalf of petitioner on this re-hearing that the word "writing obligatory" imports a written instrument under seal. That appears to be settled, technical meaning of those terms, and as criminal statutes must be strictly construed, the Legislature must be deemed to have used these words in their technical, legal sense. This is indicated by the fact that in the statute these words immediately follow the word bond, in this wise: "bond, or writing obligatory," etc. Some of the definitions of these words as collated from the decisions in Vol. 8 of Words and Phrases, at p. 7543 are as follows:

"The words 'writing obligatory' are technical, and imply a written instrument under seal. Clark v. Phillips (U.S.) 5 Fed. Cases 906; Stull v. Wilcox, 2 Ohio St. 569, 573."

" 'Writing obligatory' is practically synonymous with 'bond' and implies and includes the ideas of signing and sealing.

"A writing obligatory is a bond, or some written obligation under seal. It is a term that is never applied to simple contracts, though they may be in writing. Luna v. Mohr, 1 P. 860, 864, 3 N.M. (Johns.) 56."

" 'Writing obligatory' has not come into common use in a sense different from its technical use. The expression is rarely used, even by the profession, except in pleading, and then always as signifying a writing under seal. Watson v. Hoge,15 Tenn. (7 Yerg.) 344, 351."

The definition as given in Bouvier's Law Dictionary is as follows: "Writing obligatory. A bond; an agreement reduced to writing, by which the party becomes bound to perform something or suffer it to be done." It thus appears that, strictly speaking, the instrument set forth in the information, being an unsealed instrument, is not a writing obligatory, and hence on its face it does not come within that class of instruments made the subject of forgery by the statute. The only case which we have been able to find to the contrary of this conclusion, is the case of Hickson v. State of Nebraska, 54 L.R.A. 327. It was held in that case an instrument reading: "Mr. Sage: Please let this boy have a single rig, a good one, and oblige. I will bring it back myself. (Signed) George Clinger." constituted a writing obligatory, within the meaning of the Nebraska statute. However, the point here under consideration does not appear to have been considered in that case, and no authorities are cited, and we are not disposed to follow it.

The question arises whether, in spite of the lack of a seal, the instrument set forth in the information can be construed to have any legal efficacy, as a writing obligatory, for injury to another, provided it had been genuine, so as to bring it within the statute, under the principles laid down in the case of King v. State, 43 Fla. 211, 31 So. 2d 254, which case was discussed and quoted from in our former opinion. We are inclined to answer this question in the negative, upon the ground that, on account of the absence of a seal, the writing set forth in the information here involved is not a writing obligatory at all. Though the instrument involved in the King case was held ineffectual as a lease for more than two years because it was witnessed by only one witness when the statute required two witnesses, it was held to be the subject of forgery under the statute, because the instrument, if genuine, could be specifically enforced in equity as a contract for a lease, or was effective as a license to make entrance upon the land described therein, so as to shield parties entering under it from the charge of trespass, and therefore possessed legal efficacy for injury to another. The indictment in that case charged the forging of a writing obligatory, to-wit: a lease of lands therein described, which lease was set out in full, and was executed under seal. However, as above shown, the instrument here in question, because of the lack of seal, was not a writing obligatory at all, and hence could not possess any legal efficacy as a writing obligatory; and although, as pointed out in our previous opinion, it had some apparent legal efficacy as a written promise to pay the debt of another, this fact does not bring it within any of the classes of written instruments made the subject of forgery by the statute above quoted. It is neither a writing obligatory, for the reason above given, nor is it a promissory note. See Section 6923 C. G. L. Indeed, as above stated, it does not appear to fall within any of the classes of instruments designated by the Acts of 1868 and 1899, now appearing as Section 7324 C. G. L.

However, it does not necessarily follow that the information failed to state any offense known to the law of Florida. In 26 C. J. at p. 897, it is said: "The offense of forgery is now defined in many states by statute. In such case the statute does not repeal the common law, but merely enlarges the offense or prescribes a different punishment, in the cases enumerated in it, from that provided by the common law." And in 12 Rawle C. L. p. 139-140 it is said:

"By Blackstone (3 Com. 247) forgery is declared to be the fraudulent making or alteration of a writing to the prejudice of another man's rights. A definition very generally accepted describes forgery as the false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. Other definitions may be found, but they do not add materially to this general description of the offense, which, obviously, is merely a statement of the essential elements of the crime, viz., a false making of some instrument in writing, a fraudulent intent, an instrument apparently capable of effecting a fraud. The grosser crimes such as murder, arson and larceny, are easily defined and classified. The same is true of the more common forms of forgery, and of many purely statutory crimes. Experience has shown, however, that no generic definition of forgery can be comprehensive enough to include all the crimes that may be committed by the simple use of pen and ink. And for this reason legislatures have found it necessary to frame statutes broad enough to include in the category of forgeries many acts which are criminal in their tendency and effect, but do not fall within the earlier definitions of that crime. According to some authorities forgery was regarded at common law as a misdemeanor and not as a felony; and while under both the English and American statutes it was early made a felony in many of its aspects, at least within the later and modern acceptation of a 'felony,' it has been held that a forgery which is not within the statute is a misdemeanor and punishable only as such, which distinction, however, cannot be made in states in which common law crimes are not recognized."

The common law definition for forgery is also given in 26 Corpus Juris as follows:

"The false making or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability."

See also 2 Bishop Criminal Law, Section 523. This definition has been substantially adopted as a common law definition of forgery in this State, with the addition, after the words, "legal efficacy," of the words "for injury to another," Kinb v. State, supra; Harrell v. State, 70 Fla. 220, 83 So. 2d 922. It is also very generally, and we think correctly, held, that forgery was a misdemeanor at common law, and therefore the forgery of an instrument not named in the statute is punishable only as a misdemeanor and not as a felony. 26 C. J. 897, 980. Under our statute, 7105 C. G. L. construed in connection with Sec. 25 of Art. XVI of our Constitution, any crime punishable by death or by imprisonment in the State Prison is a felony, and every other offense is a misdemeanor; and under Section 7103 C. G. L. whenever punishment by imprisonment is prescribed and the said imprisonment is not expressly directed to be in the State Prison, it shall be taken and held to be imprisonment in the County Jail.

But we have statutory provisions with reference to common law offenses, now appearing as Section 7126 and 7127 C. G. L., which reads as follows:

"7126. (5024.) Common Law. The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this State where there is no existing provisions by statute on the subject. (Nov. 6, 1829, Sec. 1; Feb. 10, 1832, Sec. 1.)"

"7127. (5025.) Punishment of common law offenses. When there exists no such provision by statute, the court shall proceed to punish such offense by fine or imprisonment, or both, but the fine shall not exceed $500.00, nor the imprisonment twelve months. (Nov. 6, 1829, Sec. 1.)"

It appears that the information in this case is sufficient to charge forgery as a common law offense, in that it charges the forgery of a writing, which, if it were genuine, would be of some apparent legal efficacy for injury to another, and that this was done with the intent to injure and defraud certain named persons. The writing described, not belonging to any of the classes described in Section 7324 C. G. L., which makes the forgery of certain designated instruments punishable as a felony, or any other of our statutes of a similar nature, the petitioner was only subject to such punishment as might have been imposed for the common law offense under Section 7127 C G L., above quoted, construed in connection with Sec. 7103 C. G. L., that is by a fine not exceeding $500.00, or by imprisonment in the county jail, not exceeding twelve months, or both. Therefore, the sentence imposed in this case, as distinguished from the judgment of conviction, was invalid and effective.

It appears from the return that the petitioner was, on July 15, 1932, sentenced to imprisonment in the State penitentiary for a period of three years. It appearing that the petitioner has already been imprisoned for more than eleven months, in the State penitentiary, and that the maximum term to which he could lawfully have been sentenced was and is only twelve months in the county jail, no good purpose would be subserved by remanding the petitioner to the trial court for the imposition of a new and valid sentence, even though it be conceded that this Court has it within its discretion and jurisdiction to do so. The fact remains that the petitioner is being unlawfully detained by the respondent under an invalid sentence which the trial court had no lawful authority to impose.

For the reasons above pointed out, the former judgment of this Court dismissing the writ and remanding the petitioner to the custody of the respondent is hereby vacated and set aside, and it is now ordered and adjudged that the petitioner be discharged from custody by the respondent.

On re-hearing, former judgment vacated, and petitioner ordered discharged from custody.

DAVIS, C. J., WHITFIELD, TERRELL, BROWN and BUFORD, J. J., concur.