Cunningham v. State

| Miss. | Apr 15, 1874

Peyton, C. J.,

delivered the opinion of the court:

J. F. Cunningham was convicted, in the circuit court holden for the first district of Hinds county, of an attempt to commit the crime of forgery, on an indictment charging that he, the said J. F. Cunningham, on the 10th day of August, 1872, with force and arms, in the first district of Hinds county, designing and endeavoring to commit the crime of forgery, feloniously did then and there receive and take possession of a certain box, containing a large number of fraudulently printed papers, purporting to be blank warrants of the Auditor of Public Accounts of the State of Mississippi, and a false, forged and counterfeit seal, purporting to be the official seal of said Auditor, which said box and its said contents he, the said J. F. Cunningham, did then and there receive and take possession of as aforesaid, towards the commission of said crime, but was then and there intercepted and prevented in the execution of the same; and that the said Cunningham, by receiving and taking possession of said box and its said contents, as aforesaid, feloniously did then and there attempt and endeavor to forge and counterfeit a large number of instruments, purporting to be warrants of said Auditor, with intent to injure and defraud.

To this indictment the defendant interposed a demurrer, which was overruled by the court; and, upon the plea of not guilty, the case was submitted to-the jury, who Joupd the defendant guilty as charged, whereupon the court pronounced the judgment from which this writ of error is prosecuted.

Yarious errors are here, assigned in the judgment of the court below, of which we deem it necessary to notice only those which question the validity of the indictment, the propriety of . the action of the court in the admission of evidence, and in giving and refusing instructions to the jury.

This is an indictment for an attempt to forge auditor's warrants on the Slate treasury. This doctrine of attempt to commit a substantive crime is one of the most important, and at the same time most intricate, titles of the criminal law. It is truly remarked by Mr. Bishop, in his valuable work on criminal law, that there is no title, indeed, less understood by the courts, or more obscure in the text books, than that of attempts. There must be an attempt to commit a crime, and an act toward its consummation. -So long as an act rests in bare intention, it is not punishable; but, immediately when an act is done, the law judges not only of the act done, but of the .intent with which it was done; and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable. Russell on crimes, edition of 1826, page 46. The word attempt, signifies both the act and the intent with which the act is done. The intent gives color to the act,.to the extent of making, under the circumstances, an act indictable or not, according as the intent is greater or less in evil. 1 Bishop O. L., § 684. And in considering technical attempts, the jury may take into view the nature of the act as matter of evidence, to determine the particular intent Avith which it was done. 1 Bishop O. L., § 665.

With reference to the forging an auditor’s warrant on the State treasury, section 2594 of the Code of 1871 provides that, if any person shall falsely or fraudulently make, forge or alter any Writing, being, or pretending to be,- an auditor’s warrant on the State treasury, with intent to defraud the State, he shall be deemed guilty of forgery. And section 2887 of the same Code, under which this indictment Was framed for an attempt to commit this offense, provides that every person who shall design and endeavor to commit any offense, and shall do any overt act towards the commission of the same, but shall fail therein, or shall be prevented from committing the same, on conviction thereof shall be punished as provided, by the statute.

It is insisted by counsel for plaintiff that the receiving and taking possession, of the box, as charged in the indictment, is not an overt act towards the forging of the auditor’s warrants, within the'meaning of the statutes.

An overt act is one which- manifests the intention to commit the crime. 2 Bouvier’s L. D., 267. The indictment charges that the plaintiff received the box designing to commit the crime of forgery. The word designing, clearly indicates the intention with' which the box was received, containing the means well adapted to the consummation of the forgery charged. If the definition of an overt act, as above given, be correct, the reception and possession of the box taken by the plaintiff, containing the means so well adapted to effectuate the purpose charged to have been intended, manifest the intention to commit the crime of forgery, and was an overt act toward the commission of the offense, in the contemplation of the statute. The indictment, however, would have been mote perfect, had it charged that the defendant received and took possession of the box with the knowledge that it contained a large number of fraudulently printed papers, purporting to be blank warrants of the auditor of public accounts of the State of Mississippi, and also, a forged and counterfeit seal, purporting to be the official seal of said auditor.

The attempt charged in this indictment, can be made only by an actual ineffectual deed, done in pursuance and in furtherance of the design to commit the substantive crime, of such an attempt, it is an essential ingredient that there should be such a beginning, as, if not interrupted, would end in the completion of the act. "Wharton’s Am. Or. Law, § 2702. An attempt may be immediate;, as an assault for instance; but it very commonly means a remote effort, or indirect measure taken with intent to effect an object. People v. Bush, 4 Hill, 135. The taking the impression of the key of a storehouse, with the intent subsequently to enter, is an attempt to commit larceny, though the act was not consummated. 3 Wharton’s C. L,, § 2797.

It is contended that the indictment is defective in not stating who was to be defrauded by the forgery. This, it is believed, would have been a fatal defect in an indictment for forgery, and, inasmuch, as this is an indictment for an attempt to commit that offense, in forging auditor’s Warrants on the State treasury, we -think that the indictment should charge that the attempt to forge said warrants was, with the intent to injure and defraud the State.

There may, however, be cases in which an indictment for attempting to commit an offense, where it is not necessary to maintain an exactness as great as that which is essential in an indictment for the offense itself; as in an indictment for an attempt to suborn a witness, it is not necessary to specify the particular perjury which the defendant attempted to suborn the witness to commit. The State v. Holding, 1 McCord, 81, and 1 Bishop’s Criminal Procedure, § 554, in note. And also, in an indictment for attempt to steal in a dwelling-house, a specific description of the goods and chattels meant to be stolen, it has been held, it is notindespensible, for the reason that where there is only an attempt, it is not always possible to say what property the Would-be thief meant to steal. 1 Bishop’s Criminal Procedure, § 565. But where an uncertainty does not necessarily exist, an indictment for an attempt to commit any offense should contain a correct description of the offense.

We are aware that Chitty, in his third volume of Criminal Law, 1036, says, that “it is not necessary, to constitute forgery, that there should be an intent to defraud any particular person, and a general intent to defraud will suffice,” and refers to 3 T. R., 176, and 1 Leach., 216, in notes, in support of that view of the law. But we think the more modern and correct doctrine to be, that an indictment for an attempt to commit a substantive crime, with the exceptions arising from necessity, should give a full and correct description of the crime attempted to be committed. Arch-bold says: “Where the intent mentioned in the statute is to defraud any particular corporation, it must, of course, be so laid in the indictment.” And Bishop says: “This is the doctrine of the courts everywhere.” 2 Bishop on Criminal Procedure, §§ 374, 375.

Generally, there are two persons who legally may be defrauded; the one whose name is forged, and the one to whom the forged instrument is to be passed. In such case, it is prudent, in the indictment,, to-charge the offense, in different counts, to have been committed with intent to defraud each of the persons that might have been defrauded by it, if the forgery had succeeded. 2 Bishop on Criminal Procedure, § 374.

If the foregoing view of the law in reference to the form of the indictment, be correct, it follows that the court erred in overruling the defendant’s demurrer to the indictment against him.

Although the action of the court below in the admission of testimony, on behalf of the prosecution, on the trial of the cause, is assigned for error, yet it seems not to be insisted on in the argument. We think there is no error in the admission of the testimony on the part of the State. And inasmuch as the instructions were based upon the assumption that the indictment was legally sufficient, in the view taken of the indictment in this case, it becomes unnecessary to consider the objections to the giving and refusal of instructions to the jury during the progress of the trial.

The judgment must be reversed, the demurrer sustained, and the indictment quashed, and the cause remanded for further action in the court below, and the plaintiff in error detained in custody until discharged by due course of law.