State v. Barber

62 So. 361 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

An indictment was returned by the grand jury of Wayne county against appellee, which, omitting the formal parts, reads this way, viz.:

“That M. N. Barber, on the-day of-, A. D. 1910, in the county aforesaid, intending to cheat and defraud R. W. Fagan & Company, a copartnership composed of R. W. Fagan and R. O. Peel, of its goods, wares, merchandise, and money, did unlawfully, fraudulently, feloniously, and falsely forge and counterfeit a certain instrument in writing, to wit, a receipt, in words and figures as follows, to wit:

“ ‘Waynesboro, Miss., 10/22/1910.

“‘M. N. Barber.

"‘R. W. Fagan & Co., Dealers in General Merchandise, Coffins, Caskets and Manufacturers of Naval Stores.

By 2 B/C..■.564 at 14 78.96

544 76.16

155.12

To weighing -25

154.92’

—which said writing was intended and purposed then and there to show a credit in favor of M. N. Barber in the hands of R. W. Fagan & Company of the sum of one hundred and fifty-four dollars and ninety-two cents, and to show that the said R-. W. Fagan & Company owed the said M. N. Barber the sum of one hundred and fifty-four dollars and ninety-two cents for two bales of cotton sold by the said M. N. Barber to the said R. W. Fagan & Company. ’ ’

To this indictment a demurrer was interposed, wherein the following grounds of demurrer were assigned: (1) Because said indictment charges no offense against him. (2) Because said indictment fails to show how or in what respect R. W. Fagan & Company would be cheated or defrauded of its goods, wares, merchandise, or money, through the instrument charged to be forged. (3) Because said indictment is so vague, indefinite, and uncertain in its allegations that it does not disclose to the defendant how or wherein, R. W. Fagan & Company could be cheated or defrauded by the instrument charged to be forged. (4) And for other causes to be assigned upon the hearing hereof. (5) Because said indictment shows upon its face that the said R, W. Fagan & Company could not be defrauded by the instrument charged to be forged.

The trial court sustained the demurrer; hence this appeal by the state.

It will he observed that the indictment sets out the instrument in haec verba, which it avers was .the subject of the alleged forgery, and it is charged that the instrument was in fact a forgery, and that it was forged by defendant, “intending to cheat and defraud R. W. Fagan & Company.” As we understand the argument of appellee, it amounts to this: That the indictment is had, because the pleader did not charge in the indictment in what manner, or by what means, the consummation of the fraud would he possible, nor what was the apparent, connection between the transaction and the party to be-defrauded. This, we think, was not necessary. It is never necessary to plead the evidence by which the fraud is to be proven. People v. Van Alstine, 57 Mich. 74, 23 N. W. 594; People v. Ah Woo, 28 Cal. 206; Snell v. State, 2 Humph. (Tenn.) 347.

It is not necessary that the indictment should contain averments showing how the false instrument would, if' true, create, increase, diminish, discharge, or defeat any pecuniary obligation, or would transfer or affect any property whatever. Ency. of Pleading & Practice, vol. 9, page 588; Cox v. State, 66 Miss. 20, 5 South. 618. It is: only necessary to charge that the instrument was forgedl with the felonious intent to defraud .the party named, and how, or in what manner, or by what means the fraud was to be consummated is not an ingredient of the crime charged, hut is a mere matter of evidence.

"We think the indictment is good, and the demurrer should have been overruled.

Reversed and remanded.