34 Nev. 198 | Nev. | 1911
The appellant was indicted, tried, and convicted in the Second Judicial District Court, State of Nevada, in and for the County of Washoe, of the crime of forgery upon an indictment, the charging part of which reads: "That said defendant * * * did then and there unlawfully, fraudulently, falsely, and feloniously attempt to pass, as true and genuine, upon the Farmers’ & Merchants’ National Bank, a corporation, doing business in Reno, Washoe County, Nevada, with the intent then and there to defraud the said Farmers’ & Merchants’ National Bank, a corporation, a fictitious check in writing for the payment of money, purporting to be the check of one J. R. Cava-naugh, which said fictitious check is in the words and figures as follows, to wit: 'Clearing House No. 16. San Francisco, Cal. 11 — 29, 1909, G. 16. Wells Fargo Nevada National Bank of San Francisco. Pay to the order of J. E. Raymond, $5,860 T°¡nr (five thousand eight hundred and sixty dollars). 9,834. J. R. Cavanaugh.’ Indorsed on the back thereof, 'J. E. Raymond,’ when in truth and in fact there was not then and there any such person or individual as J. R. Cavanaugh in existence, the said J. R. Cavanaugh being then and there a fictitious person, as he, the said defendant, then and there well knew; the said defendant then and there well knowing the said check in writing aforesaid to be fictitious, false, and fraudulent. ”
The defendant made a motion in arrest of judgment, upon the ground that said indictment has failed to charge a public offense, which motion was overruled, and the defendant sentenced to imprisonment in the state prison. From the judgment the defendant has appealed.
The indictment is based upon the provisions of section 83 of the crimes and punishments act (Comp. Laws, 4734), which section reads: "Every person who shall make, pass, utter, or publish, with an intention to defraud any other person or persons, body, politic or corporate, either in this state or elsewhere, or with the like intention shall attempt to pass, utter, or publish, or shall have in his possession, with like intent to utter, pass, or publish, any fictitious bill, note, or check purporting to be the bill, note, or check, or other instrument in writing, for the payment of money or property of some bank, corporation, copartnership, or individual, where, in fact, there shall be no such bank, corporation, copartnership, or individual in existence, the said person knowing the said bill, note, check, or instrument in writing for the payment of money or property to be fictitious, shall be deemed guilty of forgery, and on conviction thereof shall be punished.”
The only question presented in the record upon appeal is as to the sufficiency of the indictment. It is the contention of counsel for appellant that the indictment is fatally defective, in that it fails to set out the acts constituting the attempt to defraud. It is true that the, indictment charges that the defendant did "attempt to pass” the fictitious check in question without alleging the mode or manner in which such attempt was made. The indictment in this case is in the language of the statute, which provides directly for attempts to pass checks,- and we think it good, especially so when no objection was made thereto until after verdict. " It is a general rule that if an indictment is based upon a statute, it is sufficient if it follows the wording thereof. The rule,however, is subject to the qualification that, unless the words of the statute of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, an indictment charging the
This court has had occasion repeatedly to affirm the general rule that an indictment in the language of the statute is sufficient. In State v. Brannan, 3 Nev. 238, relied upon by appellant, the indictment charged an attempt to commit grand larceny. Mr. Bishop states that the law of larceny is exceptionally technical. (Directions and Forms, 616.)
There is greater necessity for setting out the facts constituting an attempt in the case of a larceny than there is in a case like that charged in the indictment. In this ease the appellant was charged with an attempt to pass a fictitious check upon a bank. The manner in which checks are ordinarily passed upon a banking institution are of such general and common knowledge that it could not ordinarily be said that a defendent could not anticipate from the charge in the indictment the character of evidence he would be expected to meet upon the trial. Our statute has defined the real test to be applied to every indictment, which is found in the sixth subdivision of section 243 of the crimes and punishments act (Comp. Laws, 4208), which reads: "That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language without repetition and in such a manner as to enable a person of common understanding to know what is intended.” (State v. Douglas, 26 Nev. 203.)
In the case of State v. Foster, 30 Kan. 365, 2 Pac. 628, the court was considering an information charging that the defendant did " pass, utter and publish as true” a certain forged instrument. It was contended in that case that the indictment was insufficient, in that it alleged conclusions of law, and not a statement of facts. Speaking for the court, Brewer J., said: "Again, it is insisted that the information is defective, in that it fails to con
It has been the tendency of courts in recent years to be less technical than formerly in construing indictments, especially so where no demurrer was interposed to the indictment and an opportunity afforded to cure the defect prior to trial. In State v. Harrington, 9 Nev. 91, this court, quoting an indictment for murder, said: "Its form is argumentative, and this would have been a fatal defect upon special demurrer. The objection, however, was not
In a case where the sufficiency of the indictment was raised for the first time upon appeal, this court, in the recent case of State v. Hughes, 31 Nev. 270, said: "The indictment, it must be admitted, is far from being a model. Where, however, the sufficiency of the indictment is questioned for the first time upon appeal, it should not be held insufficient to support the judgment, unless it is so defective that by no construction within the reasonable limits of the language used can it be said' to charge the offense for which the defendant was convicted”— citing State v. Lovelace, 29 Nev. 43.
An indictment charging an offense in the language of the statute ought, as a general rule, to be held sufficient, where no objection is taken thereto until after verdict. The present case is not one which should be regarded as an exception to the general rule, for the reason heretofore stated that the mere charge of an attempt to pass a fictitious check upon a bank of itself indicates the character of evidence the defendant would be expected to meet, and where no demurrer is interposed the defendant ought not to be' heard afterwards to question the sufficiency of the indictment.
This court, in State v. McKiernan, 17 Nev. 224, in considering an indictment for forgery, by Hawley, J., said: "It is true that an indictment for a statutory offense should employ such words as may be necessary to enable the court to determine upon what particular provision of the statute it is framed, and it must use all the words which are essential to a complete description of the offense; but, as a general rule, the indictment will be sufficient if the offense is substantially set forth, though not in the precise words of the statute. The technical exactness which existed under the rules of the common law has been superseded by statutory provisions, and it is now sufficient if the offense is 'clearly and distinctly set forth in ordinary and concise language * * * in
The judgment is affirmed.