20 Wash. 556 | Wash. | 1899
Lead Opinion
The information in this case charges the crime of forgery, and the charging part of the information is as follows:
“ He, the said H. H. Harding, in the county of King, state of Washington, on or about the 13th day of December, 1897, then and there being, did then and there wilfully, knowingly, falsely, fraudulently, unlawfully and feloniously, utter and publish as true to Dexter Horton & Co., Bankers, a corporation duly organized and existing and doing business under and by virtue of the laws of the state of Washington, a certain false and forged writing on paper commonly called a draft of the tenor following: (setting forth the description of the draft), and he, the said H. H. Harding then and there being did then and there well know the said instrument of writing to be false and forged, and the same was then and there uttered and published by the said H. H. Harding with the intent then and there to injure and defraud the said Dexter Horton & Co., Bankers, and other persons now unknown.”
To this information defendant filed a demurrer, alleging that the facts charged did not constitute a crime. The demurrer was overruled, the defendant excepting, and a plea of not guilty entered. This was on the 12th day of April, 1898. On April 19th the plea of not guilty was withdrawn; and, upon being asked to further plead, defendant refused to plead, stating that it was his intent and desire to stand on the demurrer. The court thereupon pronounced judgment of guilty upon the defendant, and he was sentenced to confinement in the penitentiary of the state of Washington for the term of fourteen years. Some subsequent proceedings were had, which are not material to the discussion of the case.
There are two errors alleged by the appellant: First, the error of the court in refusing to sustain the demurrer to the information; and, second, in pronouncing sentence
“ Every person who shall falsely make, or assist to make, deface, destroy, alter, forge or counterfeit, or cause to be falsely made, defaced, destroyed, altered, forged or counterfeited, any record, deed, will, codicil, bond, writing obligatory, promissory note for money or property, receipt for property, power of attorney, certificate of a justice of the peace or other public officer, auditor’s warrant, treasury note, county order, acceptance or indorsement of any bill of exchange, promissory note, draft, or order, or assignment of any bond, writing obligatory, or promissory note for money or property, or any other instrument in writing, or any brand prescribed by law on tobacco, beef, bacon or pork cask, lard keg or barrel, salt-barrel, or hay-bale, or any person who shall utter or publish as true any such instrument, knowing the same to be false, defaced, altered, forged, or counterfeited, with intent to defraud any person, body politic or corporate, shall be deemed guilty of forgery, and on conviction thereof shall be imprisoned in the penitentiary not more than fourteen years nor less than one year, and be fined in any sum not exceeding five thousand dollars.”
It is claimed that the information does not allege an acceptance or indorsement by the defendant, who was the payee named in the draft, and hence in itself negatives any forgery by acceptance or indorsement, and thus fails to bring the alleged forgery within the purview of ■ the statute; that the words “other instrument in writing,” as used in the statute, cannot aid the information in construing “draft” into the statute, those words relating only to assignments. In other words, that it is the assignment of any other instrument, within which description it is insisted that the word “draft” comes, and not the uttering or publishing of the instrument, that constitutes the crime.
The second assignment, viz., that the court erred in sentencing the defendant upon his declining to plead, is equally without merit. This question was passed upon squarely by this court in State v. Straub, 16 Wash. 111 (47 Pac. 227). In that case the statutes were under consideration, and the court quoted § 1282 of the Code of Procedure (Bal. Code, § 6898), which is as follows:
“ If the demurrer is overruled, the defendant has a right to put in a plea. If he fails to do so, judgment may be rendered against him on the demurrer, and, if necessary, a jury may be impaneled to inquire and ascertain the degree of the offense.”
This court said:
“ ISTor does this conflict with § 1290, which provides that: ‘ If the defendant fail or refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered by the court;’ but rather strengthens the construction given above, that, if the demurrer is denied, further plea is unnecessary and the result will be the same as in a civil action, where, upon the overruling of the demurrer to a complaint, the defendant refuses to answer. But, under the section just above quoted, the plea of guilty is entered by the court only when the defendant fails or refuses to answer the indictment or information either by demurrer or plea.”
The judgment will be affirmed.
Gtobdon, C. J. and Fullebton, Andebs and Reavis, JJ., concur.
Rehearing
ON PETITION BOB EEHEARING.
What purports to be a petition for rehearing is filed in this case, and an affidavit of the appellant is appended, alleging his innocence of the crime of which he was convicted, and that the reason he did not enter a plea of not guilty and try the case on the merits was because he was advised by his attorney that he had a legal defense to said action, which would in no wise prejudice his right thereafter to avail himself of a defense on the merits of his case. He alleges further that the draft on which he is charged with committing forgery has been by him taken up, paid and discharged in full.
So far as the merits are concerned, it does not appear that this draft was paid before the defendant was convicted of the crime of forgery; but it does appear from all the record in this case that the proposition which is now urged by the appellant in his behalf was not presented to this court upon the argument of the case on appeal. So
We think, in the first place, that there is no proper petition for rehearing presented, and that, treating the application here as a petition for rehearing, it shows no merit whatever. The petition will therefore be denied.