46 La. Ann. 415 | La. | 1894
The opinion of the court was delivered by
The following propositions are those principally relied upon by the defendant in support of the ruling of the court a qua, maintaining the motion to quash and ordering the indictment quashed:
That the indictment does not, on its face, show any legal validity. That the indictment contains no averment which could give the instrument any force and effect beyond what the writing itself contains.
The defendant was charged in the indictment with having fraudulently forged, changed and altered a certain bill for $1 as follows, to-wit:
Alex., April 16, 1893.
Woodfine Fur.:
Bought of Bragg & Rial,
April 5, repairing on bedstead $5.
The indictment further sets forth that the bill had previously been made out for the sum of $1 by the said Bragg & Rial; that it had been thus forged for the purpose of obtaining the “ sum of $4.50 of the value of $4.50 from the Southern Pacific Railroad Company through their agent, H. B. Chase.”
It is further charged that knowing it to be a forgery the defendant falsely, fraudulently and feloniously published and uttered the bill as true by demanding payment of the same from the Southern Pacific Railroad Company, with intent feloniously to defraud.
The pertinent part of the statute upon which the indictment was drawn reads: That whoever shall forge, counterfeit or alter any public record, any certificate or attestation of any public officer, in any matter wherein his certificate or attestation.is receivable and may be taken as legal proof, any charter, deed, will, testament, bond, letter of attorney, policy of insurance, or bill of exchange and promissory note, order, acquittance or discharge for or upon the payment of money or delivery of goods, any acceptance of a bill of exchange, or any indorsement or assignment thereof, or promissory note for the payment of money or goods, or for any note, bill or security for money or goods, or shall alter or publish as true any such false, altered, forged or counterfeited record, certificate or attestation, charter, deed, will, testament, bond, letter of attorney, policy of insurance, bill of exchange, promissory note, acceptance, indorsement, assignment, order, acquittance, discharge or receipt. (The italics are ours.)
The word “bill” inserted in the section of the statute, without the
The words “ of exchange ” are not repeated, but are made evident as qualifying terms by the words following, clearly conveying the meaning that a bill of exchange is the instrument referred to in the statute.
Such false, altered, forged or counterfeit bill of exchange refers to the word “bill” as well as to the words “bills of exchange,” previously expressed in the section, and does not include in the denunciation the act charged in the indictment.
For the purpose of this case, it may be conceded that “open account” and bill are convertible terms and that a statute denouncing the act of altering a bill would include within its intendment the forging of an account.
We do not read the statute, under which this indictment was found, as authorizing the prosecution in this case.
The writing forged was • evidently intended to serve for a receipt in the event the money had been paid.
Upon that hypothesis, it is argued, on the part of the State, that the act comes within the intendment of the statute.
The statute denounces the forging of an acquittance, which is in effect a receipt; and covers within its terms the forging of a receipt.
In answer to the proposition that the writing forged constitutes forgery, because an attempt was made to use it as a receipt, two grounds suggest the invalidity of the indictment.
In the first place, the defendant is not charged with having forged a receipt, nor with having forged the writing with the intent of obtaining the amount on it as a receipt.
In the second place, the instrument does not sufficiently appear as being, on its face, within the meaning of the statute, and the averments of the indictment do not make it appear that the alleged forged instrument was one intended by and described in the statute.
On the second ground also, the judgment appealed from is legal.
If the incomplete instrument of writing can be rhade complete by averments, it can not form the ground of a prosecution in its incomplete state.
An instrunent to be the subject of forgery must be capable, if genuine, of being proof in legal process.
The meaning of the transaction does not appear from the instrument itself.
While it is contended that the purpose was to defraud the Southern Pacific Company, its name does not appear in the writing, nor is it stated how it was purposed to defraud this company, nor is it alleged how it was possible to obtain the amount, or why such a payment was expected.
The company is not represented to have been at all indebted to any of the parties named, or that there was the least obligation on the part of the company to pay any amount whatever.
In ease of an account or a proposed receipt, there could not be a. fraud unless a debt existed. Wharton’s Criminal Law, 9 Ed., p. 740.
The relation of debtor and creditor or the responsibility of some one to pay an amount may not appear in the writing and yet exists.
But it can not be proved unless alleged.
Upon that subject, Mr. Wharton says (p. 740) :
“Where an instrument is incomplete on its face, so that as it stands it can not be the basis of any legal liability, then, to make it. the technical subject of forgery, the indictment must aver such facts as will invest the instrument with legal force. Thus, where an indictment charged that A did feloniously and fraudulently forge a certain writing, as follows: ‘Mr. Bostick, charge A’s account to us, B and C.’ with intent to defraud B and C, it was that the indictment, was not valid without charging- that A was indebted to Bostick, as there could be no fraud unless a debt existed.”
The account was ineffective on its face, against the Southern Pacific Company, and no attempt thereby appears to have been made to charge that company, either in the account as originally made or as altered.
The indebtedness may be proved aliunde. To admit the proof and give legal force to the indictment it must aver such facts as will invest the instrument with legal efficacy.
“Where an instrument is not on its face sufficiently full to be a receipt, the defect may be supplied by showing a course of dealing between the parties in which it is understood to be and treated as such. This extrinsic matter must appear both by averment and proof.”
Assuming for the discussion that the account forged is genuine, it is not per se of legal efficacy against any one without additional averments in the indictment setting forth the facts connected with the transaction.
This writing is not within the statute and has no legal force; unexplained, it does not enable the court to determine its fraudulent tendency in matter of law.
The judgment appealed from is affirmed.