25 Ga. App. 547 | Ga. Ct. App. | 1920
The indictment in this case was drawn under section 245 of the Penal Code of 1910, which reads as follows: “If any person shall fraudulently make, sign, forge, counterfeit, or alter, or be concerned in the fraudulent making, signing, forging, counterfeiting, or altering of any other writing not herein provided for, or shall fraudulently utter, publish, pass, or tender the same, knowing the said writing to be forged, or counterfeited, or falsely and fraudulently altered, with intent to defraud any person, firm, or corporation, or shall fraudulently cause or procure the same to be done, he shall be punished by imprisonment and labor in the penitentiary for not less than two years nor longer than five years.” (Italics ours.)
All criminal statutes must be strictly construed, and so construing this section of the Penal Code (which is based upon a statute: Cobb’s Dig. 802; Acts 1907, p. 57), it clearly appears that, to constitute a violation thereof, there must be an intent to defraud some .particular person, firm, or corporation, and that an indictment drawn thereunder which does not charge such an intent sets forth no crime under this code section. It follows, that where a person has been convicted and sentenced in a trial had under such an indictment his motion to arrest the judgment should be' sustained, notwithstanding that he had failed to demur to the indictment. See, as to the principle involved, Williams v. State, 51 Ga. 535 (3). This ruling is not contrary to the decisions in Dukes v. State, 94 Ga. 393 21 S. E. 54), and Brazil v. State, 117 Ga. 32 (43 S. E. 460); for those cases hold, in effect, merely that in an indictment drawn under section 4447 of the Code of 1882 (section 241 of the Penal Code of 1910) it is not necessary to charge that the defendant had the intent to defraud any particular person. That section reads as follows: “If any person shall falsely and fraud- ' ulently pass, pay, or tender in payment, utter or publish any false, .■forged, counterfeit, or altered note, bill, check, or draft as aforesaid, knowing the same to have been falsely and fraudulently forged, counterfeited, or altered, he shall be punished by imprison
Judgment reversed.
