43 Minn. 196 | Minn. | 1890
The defendant was tried and convicted upon an indictment charging the crime of forgery in the second degree, under the sixth paragraph of subdivision 2 of section 398 of the Penal Code. The forgery charged consisted of the inserting in a chattel mortgage, which had been executed by one Norris to one Charles E. Adamson, of a description of certain personal property which had not been embraced in the mortgage as given, so that the property thus added appeared to be a part of the property mortgaged. It is claimed that the allegations in the indictment do not show the crime of forgery in the second degree to have been committed, but that, if any offence is shown, it was the forging or mutilating of a public record, for the reason that the mortgage had been filed for record. That the mortgage had been thus made a public record is no reason why the act charged would not be forgery, and come within the terms and intent of the statute above cited.
Again, it is urged that the indictment is insufficient for the reason that it is not alleged that the mortgage was unsatisfied and in force at the time of the commission of the alleged offence, nor whom it was intended to defraud. We deem the indictment sufficient. The statute declares that a person is guilty of forgery in the second degree who, “with intent to defraud, forges * * * an .instrument or writing, being or purporting to be the act of another, by which a pecuniary demand or obligation is or purports to be or to have been created, increased, discharged, or diminished, or in any manner affected, or by which any rights or property whatever are or purport to be or to have been created, transferred, conveyed, discharged, increased, or diminished, or in any manner affected, * * * by which false making, forging, altering, or counterfeiting any person may be bound, affected, or in any way injured, in his person or property.”' It was not essential, to constitute a crime under this statute, that the mortgage forged should be still in force at the time of the forgery. It would be enough that rights or property be or purport to be “or to have been” created or affected. Such is the statute, and it is easy to conceive that the mortgagor might be injured by such a forgery, even though the debt had been paid. An illustration of such a case may be suggested. One owning a horse and a
As to the absence of an averment as to the particular person intended to be defrauded, it is enough to refer to section 532 of the Penal Code, subd. 5, which expressly provides that no such averment is necessary.
It was not necessary to allege the value of the property described in the alleged forged interlineation. Even though there had been no such property in existence, the act complained of would have constituted forgery under the statute above recited.
It is assigned as error that the county attorney, in addressing the jury, used improper language concerning the defendant, to the effect that, if his character had been put in issue, he might not have come out any better than some others, with allusion to the “stench” that might have been created if his character had been discussed. But it is not alleged in the settled case that the county attorney used the language attributed to him. What is claimed to have occurred was a part of the proceedings at the trial, and in the presence of the court, and, to be the subject of review, should be presented in a case or bill of exceptions settled by the court, and not by affidavits. However, as the counsel for the state does not refer to this defect in the ease, we will say that we deem the refusal of the court to grant a new trial, for the cause alleged to have been not an abuse of legal discretion. Watson v. St. Paul City Ry. Co., 42 Minn. 46, (43 N.W. Rep. 904.)
There was no error in receiving the testimony of the witness Woodward upon his redirect examination, stating the reason why he did not defend in the proceedings to foreclose this mortgage. The evidence was proper to rebut the inference (suggested by the proof on cross-examination, that he did not make any defence) that his testimony as to having discovered the forgery was untrue, because self-interest would naturally have prompted him, he having purchased the mortgaged property, to defend against the taking, if in fact he had discovered the forgery. Steph. Dig. Ev. c. 2, art. 9.
The court refused to receive in evidence a copy of the mortgage certified by the city clerk as a copy on the 9th of March, 1889, showing that at that time the clause alleged to have been forged was in the instrument. We see no error in this ruling. There was no controversy as to the fact that this clause was found to be in the mortgage at about that time. That had already been shown on the part of the state by the testimony of Norris, the mortgagor. The evidence, if received, would have had no probative force as to the issue whether the clause in question was a part of the instrument when it was executed, or was at some subsequent time inserted by the defendant.
The defendant submitted several specific requests for instruction to the jury. As to all excepting the sixth and eighth of these, there can be no question but that the substance of the requests was embodied, and well presented to the jury, in the general instructions of the court; and it would seem that the court intended, also, to present
The evidence was sufficient to justify the verdict. The defendant expressly admitted that the writing of the instrument, including the words alleged to have been forged, was his own. There was evidence that this clause was not in the mortgage when it was ■executed; and the description of the mortgaged property, as it now appears, seems to have been written with two or more kinds of ink. It is quite unnecessary to refer to other evidence in the case.
Voluminous affidavits were presented upon the motion for a new trial relating to the alleged misconduct of a juror, and to the animus and credibility of witnesses on the part of the state. L We will only say of these, speaking generally, that the matters alleged were so opposed by affidavits on the part of the state that the determination by the trial court should not be disturbed. The fact was established, however, that a juror, while going to his home in the company of another person, in the course of the trial, went with Mm into a saloon, and took one drink of whiskey. However repre
Judgment and orders affirmed.