143 Iowa 578 | Iowa | 1909
Lead Opinion
Cross-examination: “Mr. Holst made this request of me to make the instrument at Luther, Iowa. I used a pencil to write Prank Berkey’s name, and used ink in simulating the signature of E. P. Mathis, so that it would appear good to the young lady in the office. I never received any school township warrant from Douglass township while Berkey was president and Mathis secretary. I do not know from what source I got the signature of Prank Berkey to simulate his signature on this warrant. I think I had a letter from Mr. Mathis, and I took that letter and laid it over the school warrant and took a knitting needle and run right over the signature, and then I traced that with ink. I don’t know how I got the signature of Prank Berkey in pencil. I don’t remember whether I had his signature, or
Holst denied ever having made the request as testified to by defendant, and swore that ho gave the cheek in the belief that the order was genuine and had no knowledge of the falsity of the instrument until payment was refused. His testimony was somewhat corroborated, and other testimony bearing thereon was adduced, so that the evidence was sufficient to carry the issue as to whether the making was with fraudulent intent to the jury.
2. Same forgery school order indictment. II. Appellant urges that the indictment was insufficient, in that it does not allege authority of the officers of the school township to issue the order. The point raised is that as no resolution of the directors directing the issuance of the order . . , was adopted, it necessarily was invalid. Johnson v. School Corporation of Cedar, 117 Iowa, 319. But it is not essential to constitute the offense that the false instrument would have been'of legal efficacy if true. “If any person with intent to defraud falsely make . . . any instrument in writing, being, or purporting to be the act of another by which any pecuniary demand or obligation . . . . is or purports to be created, ... he shall be punished.” Section 4853, Code. This purports to
Two things seem important in the administration of justice: (1) That every litigant have a fair trial; and (2) that this be made apparent to him from the rulings and procedure. Doubtless the accused, because of what he had said in the petition for rehearing in Brown v. Zachary and the resistance of the motion to strike the same and in his recent letter, believed that his honor had become prejudiced against him; but the court was not to base the ruling on his inclination or upon the belief of the accused or the proprieties of the situation, but according to the very truth, and, unless in doing so it. can be said there was abuse of discretion, the ruling must be sustained. State v. Billings, 77 Iowa, 418; State v. Foley, 65 Iowa, 51; State v. Hale, 65 Iowa, 575; State v. Ingalls, 17 Iowa, 8.
The rulings on the motions did not furnish the slightest indication of ill-will. Nor can such effect be attributed to the letter written by defendant when disappointed over such rulings, though such letters may be in bad taste. This often happens, and no judge would think of harboring resentment because of such manifestation of one of the infirmities of human nature. Indeed few judges serve any considerable time without receiving communications expressing displeasure with decisions. -The criticisms of ungracious losers are so common that they cannot be treated
Nor do we regard what may have been inserted in a petition for rehearing or resistance to a motion to strike the same-more than ten years prior to the trial as likely to have engendered lasting prejudice. It is not uncommon for both attorneys and litigants to become, irritated and extreme, in -their positions in the course of litigation. New attorneys escape entirely the criticism of opposing litigants, and witnesses seldom do; but it does not follow that the unkind things said in the heat of argument are harbored during all the years thereafter and brooded over in the spirit of malevolence. They are but incidents in the course of litigation soon overlooked in the stress of other affairs, especially by attorneys who take up the con-, troversy of others before the one is disposed of; and the statement of his honor that these matters had been overlooked long ago, and that he entertained no feeling against ■ defendant, may well be accepted as true. If there were any doubt on the subject, it is removed upon examination of the record bearing unquestionable proof of the fairness -and patience with which he presided at the trial. There was no error in denying the application for change of venue. What we have said disposes of the criticism of the judge first presiding for inviting Judge Clements to hear the cause, but, as he is not shown to have been aware of any objection to the latter, the criticism in any event was unfounded.
And the crime of forgery is not a degree of that of uttering. State v. Bigelow, 101 Iowa, 430. It is not necessarily included therein, for one who utters need not be shown to- have forged the instrument' uttered; but, to convict one of having uttered a false and forged instrument, an essential element of the proof is that it is in fact a forgery, or of such a character that, if made with fraudulent intent, the maker would be guilty of forgery. 2 Bishop, N. Cr. 1. section 605. But the fraudulent intent in the false making, though essential to constitute the crime of forgery, need not be proven to establish the crime of uttering. This appears from the statutory definition of the latter offense. Section 4854 of the Code declares that, “if any person utter and publish as true . . . any instrument in writing mentioned in the preceding section (that defining forgery) knowing the same to be false, altered, forged or counterfeited with intent to defraud,” he shall be punished accordingly. If the writing is of the kind enumerated in the preceding section, and is false, it is sufficient as añ instrument with which to commit the offense of uttering and- publishing as true, and to establish
As indicated in the-Indiana case, the reference to the instrument alleged to have been passed in an indictment for uttering as false, forged and the'like is descriptive characterizing the means employed to perpetrate the crime. No allegation that the accused made the false instrument or, if he did, that this was done with fraudulent purpose, is essential, and upon conviction or acquittal of the charge the question as to whether the instrument in fact was forged remains open. Section 5405 of the Code provides that “the jury must render a general verdict of ‘guilty’ or ‘not guilty’ which imports a conviction or acquittal of every material allegation of the indictment.” Manifestly this has reference to acts or omissions of which the accused is charged. Otherwise there might be a conviction or acquittal of matters for which the accused might not have been responsible at all. Neither in the accusation nor trial for the fraudulent uttering is the responsibility of the accused for the falsity of the instrument involved, and it would be preposterous to say that, though not charged with the false making, a verdict of not guilty would constitute an acquittal thereof. In many of the decisions it is said that-the most infallible test by which to determine whether a former judgment is a bar or not is to inquire whether the same evidence will support both the present and the former prosecution. In State v. Waterman, 87 Iowa,
Dissenting Opinion
I dissent from the argument and conclusion reached in the fourth paragraph of the foregoing opinion.