State v. Hilton

35 Kan. 338 | Kan. | 1886

The opinion of the court was delivered by

Horton, C. J.:

The facts in this case are these: Charles W. Brown had his life insured in a mutual benefit insurance company of Mansfield, Ohio, called “The National Union,” for the sum of $5,000, payable, on proof of his death, to Sarah Brown, his wife. This insurance company conducted its business chiefly through a number of men selected by'the policyholders, who constituted a body called the senate, of the National Union. The defendant was a policyholder in the company, and formerly resided at Mansfield. He held an office in the company known as deputy senator; the duty of such' officer was, in part, to organize councils, which bore the same relation to the senate that subordinate lodges'of masons bear to the grand lodge of the state. He located at Beloit, in this state, in the spring of 1885. Soon after, the secretary of the council to which Charles W. Brown belonged, received notice that he had died at Blue Hills, Mitchell county, in this state. Upon the receipt of this intelligence, the secretary forwarded blanks for proof of death to the address of Mrs. Sarah Brown, the blanks being the forms of proof of death in use by the company. The defendant was then appointed by the council to which Brown belonged a committee to investigate the cause of his death, and after a short time the proofs of death were sent by the defendant to the secretary of the council. Dr. Joel Miley made affidavit that Brown died May 2, 3885, after an illness of three days; and John Mehl made a statement that Miley was a respectable physician, entitled to credit, and in active practice. The affidavit of Miley was false, though made and signed by himself. The defendant made a statement, signed by himself, upon the third page of the proof of death, that Brown died May 2, 1885, but this was also false. Attached to this proof of death were the following affidavit and certificate:

“Undertaker’s Certificate.—I, N. G. Munn, certify that I am an undertaker, residing at No.-street, city of Mitchell, state of Kansas, and as such undertaker I attended the funeral of C. W. Brown, and that his remains were interred in-cemetery, at Mitchell, on the 4th day of March, 1885.- N. G. Munn.

“Sworn and subscribed beforeme,this 22d day of June, 1885.

S. Peele, J. P.”

“Clergyman’s Certificate.—I, H. G. Miller, do hereby certify that I am a clergyman, residing at Blue Hills, Kas., and that I officiated at the funeral of tne late C. W. Brown on the 4th day of March, 1885. H. G. Miller.”

Upon receiving the papers containing the alleged proof of death, the secretary of -the senate of the National Union at once discovered that in the statement of the defendant it appeared that Charles W. Brown had not died until May 2, .1885, while the undertaker’s and clergyman’s certificates showed that Brown had been buried on March 4,1885. The secretary at once wrote to the defendant as to this discrepancy, and he answered, if the papers were returned to him he would try to have the errors corrected, as they were simply clerical. The papers were not returned, nor were the proofs approved, and no money was paid upon the policy issued to Brown. Subsequently an information was filed by the county attorney of Mitchell county, in this state, against the defendant, charging him with the forgery of the “undertaker’s certificate” and the “clergyman’s certificate” isent to the secretary of the National Union to obtain the payment of $5,000 upon the life policy taken out by Charles W. Brown in the National Union. Upon the trial, the defendant was convicted of forgery in the third degree, and sentenced to confinement and hard labor for the term of seven years. From the judgment he appeals to this court!

strumentgoo& ertdenoe0' 2' mctfconstituting. The contention of counsel for defendant is, that the making of the affidavit of the undertaker and the certificate of the attending clergyman could not, in this instance, be forgeries, and in support hereof, cite the rule of criminal law that an instrument void upon its face cannot be the subject of forgery, because it has' no legal tendency to effect a fraud. In support of this contention, it is claimed that the affidavit and certificate were a part of the “ official notice and proof of death,” and that all the papers constitute only one instrument; that other recitations in' the instrument are so repugnant and irreconcilable to those set forth in the affidavit of the undertaker and the certificate of the clergyman, the whole death proof is a mere nullity and absolutely void upon its face. The claim of counsel is more plausible than sound. We concede that a writing invalid on its face cannot be the subject of forgery, but a false instrument, which is good on its face, may be legally capable of effecting a fraud, though inquiry into extrinsic facts would show it to be invalid, even if it were genuine; therefore the forging of such an instrument is a crime. (Sections 129 and 139 of the act regulating crimes and punishments; 2 Bishop on Crim. Law, 7th ed., §§538-541.) The papers headed “Official Notice and Proof of Death” embrace several separate and complete documents or written instruments. On page one we have a statement, with questions answered; on page two, the certificate of the attending physician, with the statement of an officer, under oath, that the attending physician is respectable, entitled to credit, and in active practice; on the third page there is a report of the council examining committee on the cause of death, and on the same page the undertaker’s affidavit and the clergyman’s certificate; on the fourth page are blanks for the medical directors and president of the senate. The undertaker’s affidavit and clergyman’s certificate, as executed, are complete and separate instruments, and are not defective or in any way invalid on their faces. It is true that all of these separate and independent instruments are necessary to complete the proof of death, but in our opinion the undertaker’s affidavit and the clergyman’s certificate as executed, are as complete and separate instruments as though they were wholly detached from the other papers constituting the proof of death. We do not think that where a certain number of written instruments are required to be presented in connection with each other as indispensable to establish any alleged fact, that a person who falsely and fraudulently makes one or more of these written instruments is guiltless of offense because he does not falsely make all, or because in some of the other written instruments to be presented a discrepancy or defect occurs which prevents the accomplishment of his fraudulent purpose. The undertaker’s affidavit and the clergyman’s certificate are in the exact form required, and we think are the subject . n , ... of forgery, withm the terms ot the statute. (¡Sec-

tions 129/139, supra.) The fraud of the defendant was not defeated by the form of the forged affidavit, or the forged certificate, but only through an examination of the other written instruments. That these written instruments are connected or attached together, we do not think exculpates the defendant. The case before us is the same as where the invalidity of .an instrument depends on some fact not appearing on its face; that is, not appearing upon the face of the forged paper or instrument. (People v. Galloway, 17 Wend. 540.)

Complaint is made of the ninth instruction given by the court, to the effect that the crime of forgery is complete when the written instrument is made and forged with a criminal intent. No exception, however, was taken to this instruction by the defendant, and therefore no question is before us concerning the correctness of the instruction for our determination. Complaint is also made of the reception of certain evidence, the giving of certain other instructions, and the refusal of the court to compel the state to elect upon which of the counts of the information it would rely for a verdict. We have examined all of these matters, but we discover no errors in the proceedings affecting prejudicially the substantial rights of the defendant. (Crim. Code, §293; Wharton’s Crim. Plead, and Prac., 8th ed., §§ 285, 290, 293; Noakes v. People, 25 N. Y. 330.)

The judgment of the district court will be affirmed.

All the Justices concurring.