23 Or. 562 | Or. | 1893
The defendant pleaded guilty to an indictment which charged that he, “on the fifteenth day of December, 1892, in the county of Multnomah, and state ,of Oregon, did wilfully, knowingly, and feloniously utter and publish as true and genuine, to one W. G-. Jenne, a a certain false and forged writing and promissory note, knowing the same to be false and forged, the tenor, purport, and effect whereof is as follows:—
‘“$165. Portland, Or., December 14, 1882.
‘ “Ninety days after date, without grace, we jointly and severally promise to pay to the order of R. H. Dunn one hundred and sixty-five dollars for value received, with interest from date, payable at the rate of ten per cent per annum until paid, principal and interest payable in*563 United States gold coin at the Ainsworth National Bank, in Portland, Oregon; and in case suit or /action is instituted to collect this note, or any portion thereof, we promise to pay such additional sum of money as the court may adjudge reasonable as attorney’s fees in said suit or action.
‘ “ J on athan Richardson.
‘“J. J. Fisher.’
—with intent to injure and defraud the said W. G. Jenne and other persons,” etc. Before judgment was rendered on defendant’s plea of guilty, he filed a motion in arrest of judgment, upon the ground that the facts stated in the indictment do not constitute a crime, which the court overruled and thereafter sentenced him to imprisonment in the penitentiary.
It will be observed that nearly ten years have elapsed since said note became due, or a cause of action accrued thereon, and our statute prescribes that an action can only be commenced on a contract of this character within six years after the action has accrued: Hill’s Code, § 6. Upon this state of the case, the contention for the defendant is that the note set out in the indictment appears on its face to be barred by the statute of limitations, or not to be enforceable, and is therefore not such an instrument as can be the subject of forgery. The defendant is indicted under section 1808, Hill’s Code, which provides that “If any person shall, with intent to injure or defraud any one, falsely make, alter, forge, or counterfeit * * * any promissory note, * * * or shall, with such intent, knowingly utter or publish as true and genuine any such false, altered, forged, or counterfeited record, writing, instrument, or matter whatever, shall be punished by imprisonment in the penitentiary not less than two nor more than twenty years.” By this section the uttering or passing, as well as the making, of a forged instrument, is declared a forgery. They are separate and distinct crimes, though both offenses are forgery. The
As defined by Mr. Bishop, “Forgery is the false making, or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability”.: 2 Bishop, Crim. Law, § 523. “But,” he further observes, “to constitute an indictable forgery, it is not alone sufficient that there be a writing, and that the writing be false; it must be also such as’ if true would be of some legal efficacy, real or apparent, since otherwise it has no legal tendency to defraud”: Id. § 533. “This is on the principle,” said Gregory, J., “that every.man knows the law, and is able to appreciate the legal effect of the instrument; and therefore it cannot, in legal contemplation, defraud any one”: Reed v. State, 28 Ind. 397. Hence, a writing invalid on its face cannot be the subject of forgery, because it has no legal tendency to injure or defraud. But, while a writing Avhich is void, or without legal efficacy on its face, cannot be the subject of forgery, it may, when it is shown by the averment of'proper extrinsic facts, be capable of injury, or of affecting the rights of another. Of course, if the instrument is A^oid or invalid on its face, and cannot be made good by aArer - ment, the crime of forgery cannot be predicated upon it. An indictment for forgery must, therefore, disclose an instrument which is calculated on its face to haA’e some effect, or extrinsic facts must be alleged which will enable the court to see judicially its fraudulent tendency: See note to Arnold v. Cost, 22 Am. Dec. 306, 321. In this case the alleged invalidity of the note appears on its face, and arises from the fact that it is subject to the bar of the statute of limitations.
The contention is that the note is not enforceable^ ón
It is laid down as a fundamental principle that statutes of limitation affect the remedy, but not the merits; in other words, that they bar the remedy merely, but do not extinguish or destroy the obligation. Hence, the defense of the statute is a personal privilege, and no one can compel any one to take advantage of it if he chooses not to: 13 Am. & Eng. Enc. 703-707. Mr. Wood says that “a rule of great importance is, that the bar of the statute must be interposed by the diligence of the debtor, and as early as possible, and usually, unless otherwise provided by statute, on the pleadings previously to the hearing, and that it will not be raised by the court unsolicited; and also, that the protection afforded by the statute may be waived by the debtor.” “The law allows a man to be honest and to pay an honest debt, however stale and ancient it may be. He may interpose the statute of limitations, but he may also waive it. The law does not compel him to resort to this defense, nor can others insist upon it for him”: Brookville Nat. Bank v. Kimble, 76 Ind. 203. A note may be barred by the statute of limitations, and still support a judgment, if no defense be interposed. In this state, on contracts of this character, the statute only affects the remedy, and in order to avail a party, must be pleaded, if it does not appear on the face of a complaint, or demurred to if it does. This being so, if an action should be begun on a note subject to the bar of the statute, the makers would be compelled to come into court and defend against it in order to avoid the recovery of a judgment upon it. This shows that such a note has some efficacy or validity, and is not wholly void, even though its collection might be defeated by such appearance in court, and it is, therefore, within the principle announced, the subject of forgery.
In People v. Fadner, 10 Abb. N. C. 462, it was objected that the indictment was void, for the reason that the note alleged to be forged was usurious and void on its face.
The judgment is affirmed.