Snow v. State, 14 Wis. 479

Snow v. State

14 Wis. 479 | Wis. | 1861

By the Court,

Paine, J.

We have come' to the conclusion that the indictment was defective in not averring that the order alleged to have been forged, purported to have been the order of a school district duly authorized for that purpose by the laws of this stale. We do not. say that it was essential to aver positively that the district was legally organized, and duly authorized to issue orders, but that it must at least be averred that the forged order which is uttered purports to be one of a corporation duly authorized to issue it. Much discussion has been had in respect to the necessity of proving the legal existence of the corporation in such cases, and it has been often held under statutes substantially like ours, that this is not necessaiy. It is said that the phrase “ duly authorized for that purpose” was not used with a design of requiring legal proof of the existence of the corporation, but is itself qualified by the word “ purporting,” which precedes it. People vs. Davis, 21 Wend., 312-313 ; People vs. Peabody, 25 id., 472; State vs. Hayden, 15 N. H., 359. This court, however, would seem to have held in The State *482vs. Morton, 8 Wis., 352, in apparent conflict with those authorities, that it is necessary, under our statute, to prove the legal existence and authority of the corporation. If that decision is to be held conclusive on the question, then it would be very clear that this indictment is defective in not containing an express averment that the school district was an existing corporation duly authorized, &c. But the report does not show a very full consideration of the question, and without resting our decision upon that, we are still of the opinion that even within the reasoning of those other authorities, the indictment should have averred in the language of the statute, that the order purported to be the order of'a district duly authorized, &c. Such was the form of the indictment in all those cases, and such is the language of the statute. Section 4, chap. 166, R. S., punishes the forgery of any note, bank bill, draft or other evidence of debt, “ issued by any corporation or company duly authorized for that purpose,” &c. This section, it is true, does not contain the word “purporting,” and whether the authorities above referred to would be applicable to an indictment under it may be questionable. But section 6, which punishes the passing of any such forged instrument with the intent to defraud, does contain that word. It punishes the passing of any such instrument, “ issued, or purporting to have been issued, as is mentioned in the fourth section,” &c. We suppose this indictment was found under this 6th section, and that even upon the construction of the cases referred to, it was essential to allege that the order purported to be the order of a corporation duly authorized for that purpose.

The distinction between the allegation that the forged instrument purported to be that of a corporation duly authorized, and the allegation that the corporation referred to was in existence and duly authorized, is clear. The first allegation would be proved by showing an instrument purporting to be such an instrument as the corporation or officers making it would be authorized in law to make, provided such corporation or officers were in existence. This offense might therefore be committed though the particular corporation whose name was used might not have a legal existence. *483The paper would purport on its face to be that of a corporation duly authorized, though owing to extrinsic facts it might be made to appear that it was not duly authorized. But if a school district should issue bank bills, or a town should issue school orders, or any corporation should issue paper showing on its face that it was such paper as such a corporation had no authority to issue under any circumstances, it could not well be said that such paper would purport to be that of a corporation duly authorized. There seems, therefore, much force in the reasoning of the cases referred to, that the design of the statute was to describe paper appearing on its face to be such as was calculated to defraud, and was not to require proof of the actual legal existence and authority of the corporation whose name was used. But as already shown, this indictment was defective under either theory, and the prisoner’s objection to the admission of the order offered was for that reason well taken.

The judgment is reversed.