116 Neb. 45 | Neb. | 1927
The defendant was tried and convicted in the district court for Sarpy county, Nebraska, upon the charges of forgery and uttering forged notes. The information upon which he was convicted contained four counts. In the first count of the information defendant was charged with having forged the signature of Mike Klien to a note in the amount of $1,500, the second count charged the defendant with uttering and publishing said note, and the third count charged the defendant with having forged the signature of H. A. Timmerman to a note in the amount of $2,500, and the fourth count charged the defendant with uttering and publishing the Timmerman note. By this proceeding the defendant seeks a reversal of the judgment of conviction.
Before the arraignment the defendant moved to quash the information, one of the grounds being that same was not verified as required by law. The motion was overruled and the ruling thereon is assigned as error. An examination of the information discloses that it has no formal verification attached to it. The information is in the form of an affidavit. Immediately following the title of the case and preceding the .information appears the following: “State of Nebraska, County of Sarpy, ss.” In the body of the information- the county attorney says he gives the
Counsel for defendant contend that because no formal verification in the form of a statement or certificate is appended to the information stating that the facts therein contained are true, .or true as the county attorney verily believes, the same is not verified by the oath of the county attorney, as required by section 10088, Comp. St. 1922. The statute requires- that the information “shall be verified by the oath of the county attorney, complainant, or some other person.” The statute is mandatory and has been so construed by this court. Trimble v. State, 61 Neb. 604. Verify means “The swearing to an affidavit. To confirm and substantiate by oath.” 3 Bouvier, Law Dictionary (3d Rev.) 3394. To meet the requirements of the statute, it is sufficient if it appears, nb matter in what form, that the truth of the charge or charges contained in the information are confirmed and substantiated by the oath of the county attorney. The county attorney subscribed to the information and was sworn thereto by an officer qualified to administer the oath. It appears in the information that he made the charges on his oath; the legal import of this is that the county. attorney made oath that the charges therein were true. This is sufficient to meet the requirements of the statute, although no formal verification was appended thereto. However, the form used is not recommended as a model to be used' in verifying informations. A form meeting all requirements of the statute
It is assigned as error that the information was not filed while the court was in session at a regular jury term, and that by reason thereof the court did not acquire jurisdiction to try the defendant.
It appears from the record that on preliminary examination the defendant was held to appear at the next jury term of the district court for Sarpy county, which commenced on October 11, 1926. A transcript of the preliminary examination was filed on August 2, 1926. The information on which defendant was tried was filed October 9, 1926.
It is stated by counsel, although such does not appear in the record, that the term during which the information was filed was an equity term, and that court was not in session at the time the information was filed. The question here presented was not brought to the attention of the trial court in any way, but is raised for the first time in this court. In support of their contention counsel cite In re Vogland, 48 Neb. 37, and Cubbison v. Beemer, 81 Neb. 824, wherein it is held:
“Under the provisions of chapter 108 of the Laws of Nebraska passed in 1885, the requirement that ‘all informations shall be filed during term, in the court having jurisdiction of the offense specified therein,’ is mandatory, and an information, upon which the accused is to be tried for felony, is void if filed in vacation.”
If the statute on which those decisions were based was still in force the contention of counsel would be correct, but in 1915 the legislature amended the section by striking out “during the term,” and the section now reads:
“All informations shall be filed in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant.” Section 10087, Comp. St. 1922.
TRe plain intention and purpose of the legislature in
Counsel for defendant cite Nichols v. State, supra, as holding that an information must be filed when the court is in session at a jury term. This is not correct. In that case a brief form of an information charging murder in the first degree was approved as sufficient and as a proper standard to be followed, and the question now under consideration was not involved or decided. We conclude that the trial court was not without jurisdiction to try the defendant on account of the information having been filed while the court was not in session at a regular jury term.
It is urged that there is a material variance between the name “H. A. Timmerman,” alleged to have been forged, and the name “H. A. Timnernan” appearing as maker on the forged mote. The evidence shows beyond any doubt that it was the name “H. A. Timmerman” that was intended to be forged on the note, and that of no other person. The simulation of the signature of “H. A. Timmerman” on the forged note is so well executed that a person used to comparing signatures might be deceived thereby. In writing the signature of “Timmerman” the forger misspelled the name by substituting the letter “n” in two places in the name for the letter “m,” but the signature is so cleverly simulated otherwise that it takes more than a casual inspection to determine that the name has been
It is upon the misspelling of the name “Timmerman” and the spelling of it as “Timnernan” that the defendant predicates his contention of material variance. It is claimed that by reason of the misspelling of the name “Timmerman” the names “Timmerman'” and “Timnernan” are not idem sonans, and that the trial court should have held as a matter of law that such variance was fatal. The names are practically idem sonans, and the person writing the name to the forged note intended that it should be taken for the name “Timmerman,” and having written it with that intention in such a way as might deceive a person of ordinary prudence, his fraudulent purpose and felonious intent to commit a forgery are as clearly manifested as they would have been if the spelling had been entirely correct.
“The general rule is that it is sufficient if the resemblance between the counterfeit and the genuine instrument or signature is such as to deceive a person of ordinary observation, and thus to create the possibility of fraud. It is not necessary that the similarity should be such as to impose on an expert. So it is not necessary that there should be so perfect a resemblance to the genuine handwriting of the party whose name is forged as would impose on persons having particular knowledge of the handwriting of such party. And one who signs to an instrument a name which he intends to be that of another person may be guilty of forgery, though the name is misspelled or incorrectly written, as where the name ‘Henry Heinis’ was signed to a note with the intention that it should be supposed to be the signature of ‘Henry Hein,’ or where ‘Hawood’ was signed for ‘Haywood’.” 12 R. C. L. 143, sec. 6.
See, also, State v. Chance, 82 Kan. 388, 27 L. R. A. n. s. 1003, and note; State v. Gryder, 44 La. Ann. 962, 32 Am. St. Rep. 358; People v. Alden, 113 Cal. 264; State v. Covington, 94 N. Car. 913, 55 Am. Rep. 650; Baysinger v. State, 77 Ala. 63, 54 Am. Rep. 46; Gooden v. State, 55 Ala. 178; Peete
When the author of the forgery affixed to the note the signature “H. A. Timnernan” and intended that it should be regarded as the signature of H. A. Timmerman, the act was not prevented from being a forgery by the circumstance that he misspelled the name. It cannot be said as a matter of law that the variance in such names is so great as to prevent the deception of any person of ordinary prudence. The misspelling of the name was an error on the part of the author of the forgery and the law does not permit him to use it as a shield to protect himself from the consequences of his criminal act.
It is next urged there is a fatal variance between the name “H. A. Timnernan,” signed as maker to the forged note offered in evidence, and the name “H. A. Tinnerman,” signed to the copy of the forged note set out in counts three and four of the information. The cases bearing upon this question are many, some sustaining the position of defendant that the variance in names here presented is fatal and others holding that even a greater variance is not fatal. We believe from examination of the cases that the cases holding that such variance is not fatal are more in accord with our Criminal Code.
“In adopting the Criminal Code the legislature intended to provide a rational system of procedure for the trial of persons accused of crime, and to abolish the hypertechnical rules of the common law.” Burlingim v. State, 61 Neb. 276.
Under section 10075, Comp. St. 1922, the variance in names, in order to be material, must be such as to be ma-terial to the merits of the case or such as may be prejudicial to the defendant. In construing the statute in Goldsberry v. State, 66 Neb. 312, 332, it was said: “This section does away with all objections that are merely technical,'and do not affect the substantial rights of the defendant. It requires that every objection grounded upon alleged difference between- a descriptive averment and the evidence
In 31 C. J. 840, sec. 451, the rule is announced: “Under the modern practice, a variance is not material unless it misleads accused in making his defense or may expose him to the danger>of being again put in jeopardy for the same offense.”
In 14 R. C. L. 207, sec. 51, it is said: “Slight variations in orthography have sometimes been held fatal and sometimes not, but it may be stated as the general rule deducible from the modern decisions that where the name as written in the indictment may be pronounced in the same way as the name given in the evidence, although such may not be the strictly correct pronunciation, the variance will not be regarded as fatal, unless the variant orthography be such as would be likely to mislead the defendant in preparing his defense.”
The following cases hold a variance in names as great or greater than the variance in the names here in question not to be fatal: People v. Spoor, 235 Ill. 230, 126 Am. St. Rep. 197; Pitsnogle v. Commonwealth, 91 Va. 808, 50 Am. St. Rep. 867; State v. Patterson, 24 N. Car. 346, 38 Am. Dec. 699; State v. White, 34 S. Car. 59, 27 Am. St. Rep. 783; Rowan v. State, 57 Tex. Cr. Rep. 344, 136 Am. St. Rep. 1005; Santolini v. State, 6 Wyo. 110; Millett v. Blake, 81 Me. 531; Myer v. Fegaly, 39 Pa. St. 429; Elliott v. Knott, 14 Md. 121; Langdon v. People, 133 Ill. 382.
We conclude that the names in question may be pronounced so nearly alike, although such may not be strictly the correct pronunciation, that we cannot say as a matter of law that the variant orthography was such as to mislead the defendant to his prejudice in making his defense. Furthermore, in this connection the record shows that, after defendant’s motion to quash said counts on account of the variance in names and before the defendant was arraigned, counsel for the state made application to correct the variance in names by amendment to the information, and the
It is further contended in this connection that the question as to whether there was a material variance in names should have been submitted to the jury for their determination, and that there was error in not doing so, also that the court erred in assuming in the instructions to the jury that “Timnernan” as signed to the forged note was the name “Timmerman.” We are unable to find in any instruction given by the trial court where it was so assumed. The instructions left the question to the jury to determine whether the defendant had forged the signature of H. A. Tim-merman. The trial court in the instructions did not, “either by omission or by expression, withdraw from the consideration of the jury an issue or essential element necessary for its determination.” The above rule announced in the case of Osborne v. State, 115 Neb. 65, does not apply, as contended by counsel for defendant. It would have been proper for the court to have instructed the jury without any request therefor that if they found there was a material variance between such names to acquit the defendant. The
The precise question here involved was decided in the case of Santolini v. State, supra, wherein it was held:
“Failure to instruct the jury that a variance between the name of the maker of a check as alleged in an indictment for forgery, and as signed to the check, is fatal if they are not idem sonans, is not reversible error when no request is made for such instruction.” (71 Am. St. Rep. 906).
The defendant complains that the trial court erred in denying his application to permit him to inspect certain books and papers named therein and in permitting same to be introduced at the trial when inspection and copies were denied. Among the papers which defendant asked to inspect were the two forged notes. Under section 8901, Comp. St. 1922, it is left to the discretion of the trial court whether or not an order should be entered directing the adverse party to give the other, within a specified time, an'inspection and copy or permission to take a copy of the books, and it is also within the discretion of the trial court whether or not to exclude such books and papers at the trial if inspection or copies is not permitted. The trial court in denying the application of defendant exercised his discretion and there was no abuse thereof. Furthermore, the record shows that the defendant was not prejudiced in any way by the denial of said application, as he was furnished photographic or photostatic copies of the forged notes, as well as practically all other exhibits offered in evidence by the state prior to the trial. Defendant seems to complain, not so much of the fact that he was denied an inspection
The defendant assigns as error the alleged misconduct of the county attorney in causing the defendant’s second arrest on another charge the evening before the trial and statements claimed to have been made by the county attorney in the presence of some members of the jury in regard thereto. The defendant supports his claim of the alleged misconduct of the county attorney with his own affidavit. The affidavit of the county attorney and the sheriff flatly contradict the affidavit of the defendant as to such alleged misconduct. Upon the showing thus made the trial court passed upon this question in overruling the motion for a new trial and after an examination of the affidavits we are not disposed to disturb the ruling of the trial court.
It is'insisted that the evidence is not sufficient to sustain the verdict. We will not discuss the evidence in detail, to do so would unnecessarily extend the length of this opinion.
It is conceded by the defendant that the names to the notes in question are not the genuine signatures of the persons that they purport to be, also that the notes are in the handwriting of the defendant with the exception of the signature, number and due date in the lower left hand corner of each note. The number and due date of each of said notes is conceded to be in the handwriting of one E. C. Goerke. At the time the forgeries were committed on May 13, 1926, E. C. Goerke was president and the defendant cashier of the First State Bank of Papillion, Ne
The theory of the defense is that the signatures were forged to the notes by E. C. Goerke and that he uttered the same. Instruments containing the genuine handwriting of the defendant and instruments containing the genuine handwriting of E. C. Goerke were admitted in evidence and were used in making comparisons with the forged signatures on the notes in question. Expert evidence was offered and comparisons made between the genuine handwriting of the defendant and of Goerke with the forged signatures. In behalf of the state expert testimony in regard to handwriting was given by J. Fordyce Wood of Chicago. Mr. Wood appears to have a national reputation as an expert on handwriting and he gave it as his opinion that the forged signatures to the notes were written thereon by the defendant. The reasons upon which he based his opinion are very convincing. Mr. Wallace 0. Shane, a recognized expert on handwriting, also gave the same opinion and nearly the same reasons as given by Mr. Wood for believing that the defendant forged the two signatures. A comparison of the genuine writing of the defendant with that of the signatures on the forged notes strongly supports their conclusions.
The defense called two expert witnesses; one, Mr. J. C. Shearman, recognized as a leading handwriting expert, but without the varied and extensive experience of Mr. Wood; the other, Mr. William W. Marsh, whose experience as an expert on handwriting was not so extensive as that of either Mr. Wood or Mr. Shearman. Both of the experts for the
It is next urged that the separate sentences imposed on counts two and four are erroneous. The record shows that the trial court imposed separate sentences on each count of the information, the sentences being imprisonment for an indeterminate period of from three to twenty years and a fine of $100 on each count. Under the terms of the judgment, the term of imprisonment on count two was to run concurrently with the sentence imposed on count one, and the sentence imposed on count four was to run concurrently with the sentence imposed on count three, but the fines imposed upon counts two and four are additional. We have held: “An information which charges forgery of an instrument and the fraudulent uttering of the same instrument by the same person charges but one crime, and in case of conviction but one. penalty can be inflicted.” In re Walsh, 37 Neb. 454.
It therefore follows that counts one and two charge the same offense and call for a single penalty; the same is also true of counts three and four. With the exception only of the judgment pronounced, the record is found free from
The penalty imposed under count one shall stand as the-penalty imposed under both counts one and two and the penalty imposed under count three shall stand as the penalty imposed under both counts three and four; otherwise than as thus modified, the judgment of the district court is affirmed.
Affirmed as modified.
