117 Me. 254 | Me. | 1918
This case involved an indictment under the statute for cheating by false pretenses. To this indictment the defendant filed demurrer which was overruled. To this ruling exceptions were taken by the defendant with the right to plead over, if the exceptions were overruled. The indictment, in part, reads as follows:
“The Grand Jurors for Said State upon their oath present that Theodore Kerr of Westbrook, in said County of Cumberland, on the twenty-fourth day of October, in the year of our Lord one thousand nine hundred and sixteen, at Windham, in said County of Cumberland, feloniously, designedly and by false pretense, and with intent io defraud, did falsely pretend to one Lars C. Klagenberg, for the purpose of obtaining the signature of said Lars C. Klagenberg to a certain written instrument, that said written instrument then and there delivered by the said Theodore Kerr to the said Lars C. Klagenberg was a note for three hundred dollars, which said amount of money Carl, then and there meaning Carl H. Klagenberg, son of the said Lars C. Klagenberg, had got and borrowed from him. the said Kerr, three years ago, and that the interest had been paid on it, and that if the said Lars C. Klagenberg refused to sign said written instrument he, the said Kerr, would take everything he, the said Klagenberg, had away from him, which said false pretenses were then and there believed to be true and were relied upon by the said Lars C. Klagenberg, and he was thereby deceived and induced to sign said written instrument, and did then and there sign and deliver said written instrument to the said Theodore Kerr whereby and solely by means of said false pretenses the said Theodore Kerr did then and there feloniously, designedly and by false pretense and with intent to
Windham, Me., Oct. 24, 1916.
P. J. Larrabee,
Portland, Me.
Dear Sir:—
In the matter of Theodore Kerr v. Lars Klagenberg, action entered at the Superior Court for Cumberland County, at the October Term, 1916, Í hereby consent and agree to the following entry, viz:
Judgment for Plaintiff.”
The rest of the indictment, by way of inducement, avers that Klagenberg had no knowledge whatever that the suit had been brought against him by the defendant and was pending in the Superior Court, and that the defendant took and received the written instrument and caused it to be filed in the Superior Court and made it a part of the records of the court in the action which Kerr had brought against Klagenberg and thereby obtained a judgment, in his own favor, without the knowledge and consent of Klagenberg, for $347.02.
Under the demurrer the defendant attacks the sufficiency of «the indictment in the following particulars: First, That the indictment is bad for duplicity. Second, That the indictment on its face does not set. out the crime as alleged. Third, That the indictment does not follow the wording of the statute. Fourth, That the writing to which the state alleges the said respondent obtained the signature is not a subject of forgery. Fifth, That the writing as set out in the indictment does not contain the signatures of the persons whom the
If we apply these general requirements of pleading to the allegations found in the above indictment, it will be seen that they come well within the rule. The language of the allegations fully informs the accused of the special character of the charge against him; shows that the facts alleged are sufficient in law to constitute a crime; and that the record of conviction, if found upon the facts alleged, will sustain a plea in bar. While the indictment may have more fully described the offense, defined by the statute, than is required, it promotes rather than obscures a full understanding of the charge. In addition to the above statement of what the indictment must contain in general, this same section goes 'on to state what must be alleged in detail. (1) “It must aver all the material elements of the offense, and hence must show what the false pretenses were.” (2) “That they were made or authorized by the defendant.” (3) “That they were false and fraudulent.” (4) “That they deceived the prosecutor.” (5) “What was obtained by and under them.” Upon inspection the indictment will be found to contain all these particulars.
The indictment must, however, not only fulfill these general and particular essentials of pleading, but also the requirements of the statute under -which this indictment is brought, R. S., Chap, 128, Sec. 1, which reads as follows: “Whoever designedly and by false pretenses or privy or false token, and with intent to defraud, obtains from another .... his signature to any written instrument,
But granting this, the defendant, by demurrer says, that the indictment is bad for not stating the requirements in a 1 egal way. First, he says the indictment is bad for duplicity. In argument he claims that, after setting forth what the state intends to prove, the indictment then goes further and alleges that ‘ ‘said Theodore Kerr then and there took and received the said written instrument, etc., and thereby obtained judgment in his own favor in said Superior Court, fraudulently, etc., for the sum of $347.02. It is claimed that this language charged the respondent with the common law crime of falsely and fraudulently obtaining judgment against the prosecutor in the Superior Court, etc. This contention cannot prevail. The statement of the use made of the writing was proper matter of inducement descriptive of the fraudulent intent with which the instrument was obtained. The offense charged is cheating by false pretenses, accomplished in a manner defined by statute; but the gravamen of the offense, as defined, is the false procuring of a signature to a written instrument. Accordingly, we find no allegation in the indictment setting out any offense in the use made of the instrument. But, in order to constitute duplicity, a second offense must be sufficiently averred; otherwise the description will be rejected as surplusage. Wharton’s Criminal Pld. and Pr., 8ed. par. 243, and cases cited. State v. Haskell, 76 Maine, 399.
The second objection “that the indictment does not set out the crime alleged” is based upon the argument that the indictment avers that the instrument, the false making of which is a forgery, was an authorization of one P. J. Larrabee, attorney at law, to consent that judgment be entered against Klagenberg, but does not aver that he was attorney of Klagenberg. We need not further note the reasons
The third objection is, that the indictment does not set out the offense charged in the language of the statute. This is not necessary. The reading of the indictment shows that the language is equivalent to that of the statute, which is all that is required. It is further claimed under this head that the indictment does not conclude with the words “by reason whereof the said respondent is deemed to be guilty of cheating by false pretenses.” The indictment, however, does conclude with the words “contrary to the form of the statute in such case made and provided,” which is the usual formula, used to indicate that the offense charged is in violation of the statute.
The fourth objection is based upon the theory that the instrument, the signature to which is alleged to have been procured in the manner described, is not a subject of forgery. In support of this argument the defendant refers only to “forgery” as defined by the statute, R. S., Chap. 123, Sec. 1. But the statute under which this indictment is drawn, making the procurement of a signature to an instrument, “the false making of which,” in the language of the statute, “is a forgery,” does not limit the meaning of the word “forgery” to the definition of the statute. It was held in State v. Kimball, 50 Maine, 400, that our statute in relation to forgery and counterfeiting does not repeal the common law. Forgery at common law was early defined by our court in State v. Frye, 26 Maine, page 316; “The definition of forgery at common law, is the fraudulent making or alteration of a writing to the prejudice of another man’s rights.”
In Words and Phrases, Yol. 6, page 5632, under the heading “Proceedings” and subdivision “All Matters and Steps”, we find this definition: From a New York case: “The term ‘proceeding’ in its more general sense in law means all steps or measures adopted in the prosecution and defense of an action.” From a Nebraska case: ‘ ‘The word ‘proceeding’ is applicable to every step taken by a suitor to obtain the interposition or action of a court ” From a Minnesota •case, and from many other cases, it is said: “In its most comprehensive sense the term ‘proceeding’ includes every step taken in a civil action, except pleadings.” It is therefore evident that an order purporting to direct an attorney or anyone else to make an entry, which authorizes the court to order a judgment, is, when filed and acted upon, a proceeding in court. The indictment in this case alleges that the defendant did file the instrument set out and that the court acted upon it. Hence it appears that within the definition of the statute, this instrument was one, the false making of which is a forgery.
Exceptions overruled.