54 Ind. 359 | Ind. | 1876
The appellant was indicted for forgery in tbe court below, tbe indictment containing two counts. There was a motion by appellant to cjuasb tbe indictment,.
Appellant, on written cause filed, moved the court below for a new trial, which motion was • overruled by the court, and appellant excepted to this decision. Appellant then moved the coux't below in writing in arrest of judgment, and this motion was overruled by the court, and an exception was saved by the appellant to this ruling, and judgment was rendered by the court below on its finding, from which this appeal is now prosecuted. .
In this court the appellant has assigned the following alleged errors:
1. In overruling the appellant’s motion to quash the indictment;
2. In overruling appellant’s motion for a new trial; axxd,
3. In overruling appellant’s motion in arrest of judgment, and rendering final judgment against him.
The first and third of these alleged errors may be considered together; for they present substantially the same question, to wit, the sufficiency ixx law of the second count of the indictment. As there was a finding of not guilty as to the first count of the indictment, it may be considered as out of the case. Omittixxg the introductory and merely formal parts of the second count of the indictment, it charged, in substance, that on the 15th day of December, A. D. 1876, at and in the county of Decatur, and State of Indiana, the appellant did then and there unlawfully, knowingly and feloniously forge and counterfeit, and in the manner aforesaid caused to be forged and counter
“$160.00. Greensburgh, Ind., Dec. 15th, 1876.
“ Ninety days after date, we or either of ns promise to pay to the order of-, one hundred and sixty dollars negotiable and payable at the Citizens National Bank of Greensburgh, in the State of Indiana, value received, without relief from valuation or appraisement laws, with ten per cent, interest from maturity, payable annually, com- • pounded if not paid when due, with five per cent, attorneys’ fees. Extension of time after maturity, with or without consideration, will not release sureties on this note. Protest waived by drawers and endorsers.
“No. 8483. “Israel Harding,
“ Due March 14th, 187-. “Joel Colson,
“Henry Schrceder;”
in this, that he did, at the time and place and in the manner aforesaid, forge, counterfeit and cause to be forged and counterfeited, the names Joel Colson and Henry Schrceder to and on said note, with the intent to cheat and defraud the Citizens National Bank of Greensburgh, Indiana, and did then and there unlawfully, feloniously and well knowing the same to be false, forged and counterfeited, utter and publish, as true and genuine, said promissory note aforesaid, signed with the names of Joel Colson and Henry Schrceder aforesaid, with the felonious intent to cheat and defraud said Citizens National Bank of Greensburgh, Indiana, as aforesaid.
The felony, with the commission of which appellant was charged in and by this second count of the indictment, is defined in the thirtieth section of the act defining felonies, and prescribing punishment therefor, approved June 10th, 1852. This section is as follows:
“Sec. 30. Every person who shall falsely make or assist to make, deface, destroy, alter, forge or counterfeit, or cause to be falsely made, defaced, destroyed, altered, forged or counterfeited, any record, deed, will, codicil, bond,*362 writing obligatory, bill of exchange, promissory note for the payment of money or property, bank-note, post-note, receipt for money or property, power of attorney, certificate of a justice of the peace, or other public officer, auditor’s warrant, treasury note, county order, acceptance or indorsement of any bill of exchange, promissory note, draft, or order, or assignment of any bond, writing obligatory or promissory note for money or property, or any order, or draft, for the payment of money, or property; or any other instrument in writing, or any lawful brand on a tobacco, beef, bacon, or pork cask, lard keg or barrel, salt barrel, or hay bale, or- any pei’son who shall utter, or publish as true, any such instrument, knowing the same to be false, defaced, altered, forged, or counterfeited, with intent to defraud any person, body politic or corporate, shall be deemed guilty of forgery.” 2 R. 8.1876, p. 439.
It will be observed that two distinct felonies are defined in this thirtieth section, both of which are denominated forgery. The one is the falsely making, etc., any of the instruments mentioned in the section, with intent, etc.; and the other is the uttering, or publishing as true, any such instrument, knowing the same to he false, etc., with intent, etc. It is the latter or second felony, the appellant is charged with in this case, in the second count of the indictment.
The first and indeed the only serious objection urged by appellant’s counsel to the second count of the indictment is, that the instrument of writing, called a promissory note and set out in the indictment, is not a promissory note, within the meaning ot the law, on which an indictment for the forgery of a promissory note could be predicated. Ordinarily, a promissory note may be defined to be a written promise, made by a certain person, to pay a certain sum of money, at a .certain time, to a certain person. But if there should be a blank space left for the name of the payee, in a written instrument which has all the other requisites of a promissory note, such an
by this court, in relation to promissory notes, in the case of Rich v. Starbuch, 51 Ind. 87.
In our opinion, in the case at bar, the instrument of writing, for the alleged forgery of which the appellant was indicted, was correctly described in the second count of the indictment as a promissory note. But, if we were in error in holding as we do, that the instrument of writing set out in the indictment was properly described therein as a promissory note, a contrary decision would be of no benefit to the appellant. The argument of appellant’s counsel is this: appellant was indicted for forging a promissory note; it appears upon the face of the indictment, that the instrument forged was not a promissory note, and therefore, his conclusion is, the indictment was insufficient and ought to have been quashed. But, from our stand-point, the argument is unsound and illogical. In our view of the case, appellant was indicted for forging a certain instrument, which is set out in the indictment; we look to the copy of the instrument, and not to the name which may be given the instrument, to determine whether or not the instrument appears on its face to be of such a character, that a charge of forgery could be predicated thereon. When we find, as we' do in this case,
We hold, therefore, that the court below committed no error in overruling either appellant’s motion to quash the indictment or his motion in arrest of judgment.
The second and only remaining alleged error of the court below, was the overruling of appellant’s motion for a new trial. The causes assigned for such new trial, in appellant’s motion, were the following:
2. Error of the court below, on the trial, in allowing the evidence in the exhibits marked “ B.” and “ 0.” to be offered in evidence, and the evidence connected therewith;
3. The court below erred in allowing the evidence of "William H. Harvey, as to appellant’s admissions, made when he was under arrest and in custody of the officer, on this charge;
4. The finding of the court below was contrary to and not supported by the evidence; and,
5. The finding of the court below was contrary to law.
We have already said all that need be said in relation to the alleged error of the court below, in overruling appellant’s motion to quash the indictment. There was no error in that decision. The questions presented for our consideration, by the alleged error of the court below in overruling appellant’s motion for a new trial, are not im sisted on by his learned counsel, with much zeal or much confidence. We will briefly notice the points made by counsel under this alleged error. It is said that the court erred in admitting in evidence the papers marked “B.” and “ C.;” but these papers .'seem to us to be a part of the same transaction, upon which the charge of forgery was predicated, and we are unable to see how the admission of these papers in evidence could possibly prejudice appellant’s cause. Samuel Christy, the cashier of the Citi-zens National Bank of Gfreensburgh, Indiana, testified on the trial that appellant applied to the bank for a loan of one hundred and sixty dollars, asking if he could get the loan, with Mr. Colson and Mr. Schrader on the note with him. He was answered in the affirmative, and a blank note was filled out for him to take and get the signatures, which note he took away with him. On December 22d, 1876, appellant brought the note back to the bank, with the signatures as they then appeared upon it. Appellant got one hundred and fifty-five dollars and five
It is also said that the court below erred in admitting the testimony of ¥m. H. Harvey, as to appellant’s admissions, made when he was under arrest and in the custody of the officer on this charge. Harvey testified that he was book-keeper of the bank, and went with the
Appellant also claims that he should have had a new trial of this cause, because the finding of the court below was not sustained by sufficient evidence, and was contrary to law. We have carefully read the evidence on the trial of this cause, and we regret that we are compelled to say that this evidence demonstrated with almost mathematical certainty appellant’s guilt of the felony wherewith he stood charged. It appeared in evidence that the appellant was a young man, and had always borne a good reputation in the neighborhood in which he lived, up to the time of the commission of this offence. The case is therefore a sad one, and illustrates again the truth of what was said of old, “the way of the transgressor is hard.”
In our opinion there was no error in the overruling by the court below of appellant’s motion for a new trial.
The judgment of the court below is affirmed, at appellant’s costs.
