13 S.E.2d 909 | Ga. Ct. App. | 1941
The indictment charged that the defendant "did wrongfully, falsely, and fraudulently make, sign, and forge the name of C. L. Corley (meaning thereby [to sign the name of] C. F. Corley [a real person]) on and to a certain check and writing which was in form and substance as follows: `Main office The Fulton National Bank, Atlanta, Ga. 2-7-1940. Pay to the order of J. E. Grier . . $4.00. Four and 00/100 . . dollars. C. L. Corley,' said signing as aforesaid of the name of C. L. Corley (meaning thereby [to sign the name of] C. F. Corley [a real person]) to said check and writing being done without legal warrant or authority and with intent to defraud the said C. F. Corley." (Brackets ours.) There was no demurrer to this indictment. The defendant waited until after verdict and judgment and filed a motion to set aside the verdict and judgment on the ground that the indictment "sets out no offense against the laws of Georgia," in that "it does not charge the forgery of the name of any person alleged to be actually in existence, but at most only charges a mere intention to forge the name of a real person bearing the name of C. F. Corley, and shows on its face that this intention failed of accomplishment," and that the indictment is null and void. After verdict, every presumption is in favor of the verdict; and this attack on the indictment by way of a motion to set aside the verdict and judgment, the indictment being construed most strongly against the defendant, is not meritorious; for we do not think that the defect in the indictment in the instant case was so substantial as to render the trial entirely nugatory.
What is herein decided applies to both checks; for with reference to both the defendant contends in his brief: "The bill of indictment shows on its face that the plaintiff in error's [defendant's] intention to sign the name of C. F. Corley failed of its accomplishment, therefore the criminal act failed. One of the main elements of the State's case was to allege and prove that the plaintiff in error signed the name of a person who actually was in existence and who was defrauded by such a signing, but nowhere in the indictment is it alleged that the plaintiff in error signed the name of the person whom he intended to sign." In support of his contention the defendant relies primarily on Hicken v.State,
We are not concerned here as to when a false representation as to the use of the name of a fictitious person is an offense other than as applied to the offense of forgery. Our forgery statutes fail to provide a punishment for drawing or uttering a bank check in a fictitious name. Brazil v. State,
It might be noted that the generally recognized able solicitor, the Honorable C. D. Hill, who was solicitor-general in the Hicken case, where it was held that the indictment was not good as against demurrer, was likewise solicitor-general in the later case ofHale v. State,
"Three essential elements are generally prescribed as necessary to constitute the offense of forgery: (1) There must be a false writing or alteration of an instrument; (2) the instrument as made must be apparently capable of defrauding; and (3) there must be an intent to defraud." 23 Am. Jur. 678, § 6. "The false making of the writing, the intent to defraud, and the tendency and capacity of the writing to prejudice the right of another person are the essential ingredients in the crime of forgery." Hale v. State, supra, "There is in the entire catalogue of crimes no one which can be more readily and simply charged, after common-law rules, than forgery. Yet from early times the framers of indictments have been in the habit of introducing into their allegations for this offense needless matter, often in such form as to be descriptive and so to require proof of what otherwise might be rejected *722
as surplusage, — the compilers of books of precedents have brought together and preserved the awkward forms as though they were bars of gold, — unskilled pleaders have been bewildered by the confused and incongruous glitter; and, at last, legislation has interfered, in England and in some of our States, to remove hardships which did not exist, and to make smooth what required no smoothing." 2 Bishop's Directions and Forms, 253, § 453; See Wingard v. State,
We do not think that the defect in the indictment in the instant case was so substantial as to render the trial entirely nugatory.
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.