France v. State, 83 Miss. 281

France v. State

83 Miss. 281 | Miss. | 1903

Whitsteld, O. J.,

delivered the opinion of the court.

The indictment cannot be sustained on § 1112, Code 1892, upon which it was drawn. That section has no application to the state of case developed by the testimony. The writing 'set *285out in the indictment is, however, a paper, such in its nature that forgery can be predicated of it. It is such a paper as that, if genuine, the right of Flowers might be affected thereby. Section 1106, Id., omitting the clauses and words not pertinent to this case, reads as follows: “Every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any writing . . . being or purporting to be the act of another, ... by which any right . . . whatever shall be or purport to be . . . in any manner affected, by which false making,” etc., “any person may be affected or in any way injured in his person or property, shall be guilty of forgery.” If Flowers was in fact the landlord of France, and did in truth have a lien on his crop as landlord, undoubtedly the writing was such a one as affected Flowers’ interest as landlord in such crop. The writing, therefore, is one of which forgery is predicable. But the writing does not on its face disclose the necessary facts. It does not show that Flowers was such landlord, and had such lien as landlord. These extrinsic facts, necessary to be set out in the indictment, do not appear therein. It is essential that they should be stated in the indictment, in order that the indictment setting out both the instrument and extrinsic facts shall so charge forgery as not to be demurrable. The case of Dixon v. The State, 81 Ala., 61, 1 South., 69, is identical with this ease in all its facts. There the paper set forth in the indictment was in these words: “I have nothing to do with Veonie Dixon patch cotton; they are welcome to it, and do what they please with it.” The indictment set out this instrument, which was signed by W. W. Roberts, and then added by way of innuendo, “Meaning thereby that said Roberts, the landlord, waived his lien on the patch of Veonie Dixon.” Touching this indictment the court said: “Section 4340 of the code of 1876, omitting clauses and words not pertinent.to this case, reads as follows: ‘Any person who, with intent to injure or defraud, falsely makes, . . . forges, counterfeits . . . any . . . instrument, being or purporting to be the act of another, by which any right or interest *286in property is ... in any way changed or affected, . . . the forgery of which does not constitute forgery in the first degree under § 4332 of this code, . . . must on conviction be adjudged guilty of forgery in the second degree.’ If said Roberts .was landlord, and if the ‘patch cotton’ referred to in the writing was grown on land rented from him, he having a part interest in or lien on the crop as landlord, then the paper was such an instrument as changed or affected the interest of said' W. W. Roberts in such crop. The instrument could be the subject of forgery in the second degree. The instrument or paper, the subject of the forgery charged in this case, does not, by anything it asserts, indicate that Roberts, whose name is alleged to have been forged, had any interest whatever in the ‘patch cotton’ mentioned therein. Hence, on the face of the instrument, it does not appear that any right or interest in property is, or purports to be, affected. To authorize an indictment for forgery, ‘the instrument must either appear on its face to be or be in fact one which, if true, would possess some legal validity; or, in other words, must be legally capable of effecting a fraud.’ There being nothing in the paper, as we have shown, to intimate that Roberts was in any way connected in interest with the ‘patch cotton,’ it required the averment of an extrinsic fact — the fact that he was landlord having an interest or lien- — to show that his property interest was or would be affected. ‘If a writing is so incomplete in form as to leave an apparent uncertainty in law whether it is valid or not, a simple charge of forging it fraudulently, etc., does not show an offense; but the indictment must set out such extrinsic facts as will enable the court to see that, if it were genuine, it would be valid.’ 2 Bish. Or. Law (7th ed.), sec. 545; State v. Humphreys, 10 Hum., 442. It is contended in this case that the words ‘meaning thereby that W. W. Roberts, the landlord, waived his lien on the patch cotton,’ found in the indictment, is an averment that he, the said Roberts, was the landlord of the said Veonie Dixon, and thus amounts to the averment of the necessary extrinsic fact. That phrase, in the *287present indictment, is only an innuendo, whose office is not to supply omitted words, but to give point and direction to ambiguous language. ‘It cannot enlarge and point the effect of language beyond its natural and common meaning in its usual acceptation, unless connected with proper introductory averments.’ Bouv. Law Diet.”

Reversed and remanded.