84 Ark. 136 | Ark. | 1907
(after stating the facts). The indictment was sufficient, unless it be defective because it charged the defendant with two offenses; but this defect, if a defect, was waived by the failure to demur to it on that account. Ince v. State, 77 Ark. 426, 428.
The indictment was based upon the following statute: “Every person who, with the intent to defraud, shall make any false entry, or shall falsely alter any entry made in any book of account by any banking corporation within this State, or in any book kept by such corporation, by which any pecuniary obligation, claim or credit shall be or purport to be discharged, diminished, increased, created, or in any manner affected, shall, on conviction thereof, be punished as for forgery,” which is by imprisonment in the State'penitentiary not less than two years nor more than ten years. Kirby’s Digest, § 1726.
The statute makes an intent to defraud an essential element of the offense charged. Instructions given at the instance of the State numbered 2 and 4, and modifications in instructions numbered 2 and 5, given at the request of the defendant, taken in connection with the instruction numbered 2 given at the instance of the State, made it unnecessary to prove such intent in order to convict, and for that reason were and are fatally defective and prejudicial.
It was sufficient to prove the existence of the corporation mentioned in the indictment to show that there was such a corporation de facto, and evidence of general reputation of its corporate existence is competent to prove it. Section 3084 of Kirby’s Digest; Pleener v. State, 58 Ark. 98, 102. As to what is necessary to constitute a de facto corporation, see Whipple v. Tuxworth, 81 Ark. 391. The name of the corporation as alleged in the indictment may be shown by evidence that it was known by such name. Bennett v. State, ante p. 97.
In view of the evidence in the case and what we have said as to corporations de facto, it is unnecessary to notice instruction numbered 5 and given at the instance of the State, as it was not prejudicial.
Reverse and remand for a new trial.
