No. 20,172 | Ind. | Jan 12, 1904
— Appellant was convicted of forging and uttering a false instrument by a jury upon affidavit and information in two counts, both of which were held good on motion to quash, and on motion in arrest of judgment. The appeal questions the ruling of the court on these motions.
Each count of the affidavit alleges that the forged note was one purporting to have been executed by one John H. Veike to John Selby, and the copy set out in haec verba shows a note signed by John TI. Veike, payable to the order of John Selby. The first count of the information alleges that the forged note- was one purporting to have been executed by one John H. Vieke to John Selby, and the copy set out shows a note signed by John H. Vieke, ¡payable to the order of John Selby. The second count of the information alleges that the forged note was one purporting to have been executed by one John IT. Veike, without stating to whom, and the copy set out shows a note signed by John H. Veike, payable to the order of John Selby. In each count of both affidavit and, information the person to whom the note was passed is alleged to be Louis A. Meyer. In the first count of both affidavit and information the person intended to be defrauded is alleged to be Louis A. Meyer, and in the second John H. Veike. In each count of both,affidavit and information it is alleged that the defendant “did then and there unlawfully, felo
The principal question hinges on whether or not John H. Veike and John IL. Vieke are idem sonans. Appellant contends for the negative, and insists that in sound and signification they are two distinct names, and that, as the forgery of the name of John H. Veike is alleged in one count, and the forgery of the name of John LL Vieke is alleged in the other, two distinct felonies growing out of two distinct transactions are charged, and improperly joined in the same action, for which the information should have been quashed. '
We concede it to be well established in criminal prosecutions for forgery that the name charged to be forged must be proved as alleged in the indictment or information, and, when based on an affidavit and information, that the name alleged in the information as forged should accord with and be the same as that charged in the affidavit. It is not essential, however, that the names be spelled in the same way or that they be correctly spelled. If substantially the same sound is preserved, a variant orthography will make no difference. The test always is, are the names as spelled idem sonans — have the same sound. “If the name is spelled differently,” says the court in Pinney v. State, 156 Ind. 167" court="Ind." date_filed="1901-02-12" href="https://app.midpage.ai/document/pinney-v-state-7054049?utm_source=webapp" opinion_id="7054049">156 Ind. 167, “from that of the accurate spelling thereof, but nevertheless conveys to the ear, when pronounced according to the xisual recognized rule of acoustics, a sound which is practically the same as the sound of the true name * * * this is a sufficient designation of the person, and no advantage can be taken of the clerical error of variance.” See this ease for a collection of eases and illustrations. See, also, Tonges for Toenges, Seibert v. State, 95 Ind. 471" court="Ind." date_filed="1884-05-26" href="https://app.midpage.ai/document/siebert-v-state-7047082?utm_source=webapp" opinion_id="7047082">95 Ind. 471, 477; Horick for Horrick, Evans v. State, 150 Ind. 651" court="Ind." date_filed="1898-06-10" href="https://app.midpage.ai/document/evans-v-state-7053440?utm_source=webapp" opinion_id="7053440">150 Ind. 651, 653.
2. It is alleged in each count of the information that the defendant “did feloniously, falsely, fraudulently, and knowingly, make, forge, counterfeit, utter, publish, and pass to Louis A. Meyer, as true and genuine, a certain false, forged, and counterfeit promissory note purporting to have been made and executed by one John LI. Veike to him, the said John Selby, for the payment of $35.” The copy of the note set out shows that the note was payable to the order of John Selby. It is argued that since it is averred that the false note was payable to John Selby,
3. In one count of the information it is charged that the forged note was passed “to Louis A.' Meyer” with intent to defraud “one Louis A. Meyer,” and in the other count it is alleged that the forged note purported to be signed by “John H. Veike” and was passed to Meyer with intent to defraud “one John H. Veike.” It is contended that these averments fail to identify the persons alleged as intended to be defrauded as being the same persons whose names were connected with the forgery, and the information therefore insufficient. Shinn v. State, 51 Ind. 144, and Yount v. State, 64 Ind. 443" court="Ind." date_filed="1878-11-15" href="https://app.midpage.ai/document/yount-v-state-7042803?utm_source=webapp" opinion_id="7042803">64 Ind. 443, are relied upon as supporting the position taken. We can not accept these, cases as authority here. In neither of them was it shown by averment or copy of the forged instrument that the persons against whom the fraudulent intent was directed had any connection or relation with the forged note, and this is given as the reason for holding the indictment bad. The reason does not exist in this case. It would have been better pleading to have used the word “said” for the word “one” in the intent clause, but we can not hold the information bad for failure to do so.
4. The last point made against the information is that it is void because it charges no offense. Counsel for appellant say in their fifth point: “To charge one with
Another well-established rule is admirably stated by Mr. Bishop in his Criminal Procedure, vol. 1 (3d ed.), §436, thus: “It is common for a statute to declare, that, ¡if a person does this, or this, or this, he shall.be punished in a way pointed out. Now, if, in a single transaction, he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore an indictment upon a statute of this kind may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has or, and it will not be double, and it will be established at the trial by proof of any one of them.” Rosenbarger v. State, 154 Ind. 425" court="Ind." date_filed="1900-04-04" href="https://app.midpage.ai/document/rosenbarger-v-state-7053874?utm_source=webapp" opinion_id="7053874">154 Ind. 425. See, also, Hobbs v. State, 133 Ind. 404" court="Ind." date_filed="1893-01-10" href="https://app.midpage.ai/document/hobbs-v-state-7051621?utm_source=webapp" opinion_id="7051621">133 Ind. 404, 18 L. R. A. 774, and cases cited.
The statute upon which this prosecution rests (§2354 Burns 1901) makes forgery and knowingly uttering a forged instrument with intent to defraud offenses of the same class, and punishable in the same way, and it is manifest that the pleader availed himself of the license afforded by the rule last stated, and conjunctively united both offenses in the same charge as constituting a single transaction, and for which but a single penalty can be exacted. This he had the right to do. The averment that the defendant did feloniously and knowingly make, forge, counterfeit, utter, publish, and pass to Meyer, as true and
Judgment affirmed.