83 N.W. 865 | N.D. | 1900
The defendant was convicted of the crime of forgery
The indictment is founded on § 7438 and subdivision 2 of § 7430 of the Revised Codes, which read:
“§ 7438. Every person who, with intent to defraud, utters or publishes as true, any forged, altered or counterfeited instrument, or any counterfeit gold or silver coin, the forging, altering or counterfeiting of which is hereinbefore declared to be punishable, knowing such instrument or coin to be forged, altered or counterfeited, is guilty of forgery in the same degree as if he had forged, altered or counterfeited the instrument or coin so uttered, except as in the next section specified.”
“§ 743°- Every person who, with intent to defraud, falsely makes, alters, forges or counterfeits: * * * (2) Any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation is, or purports to be created, increased, discharged or diminished, or by which any rights or property whatever, are or purport to be transferred, conveyed, discharged, diminished or in any manner affected, the punishment of which is not hereinbefore prescribed, by which false making, altering, forging or counterfeiting, any person may be affected, bound or in any way injured in his person or property, is guilty of forgery in the third degree.”
§ 7439 reduces the offense to the fourth degree when it appears that the instrument uttered was innocently received by the accused for a good and valuable consideration, and without any circumstances to justify a suspicion of its being forged or counterfeited.
The jury found that the facts brought the defendant within the foregoing sections, and accordingly returned a verdict of forgery in the fourth degree.
Counsel for defendant broadly contend that the written certificate set out in the indictment as the basis of this prosecution is not such an instrument as can be made the subject of forgery, and conse
It is obvious, too, on inspection, that the certificate in question, standing alone, is not a subject of forgery.. It was not made pursuant to statutory authority or express law. Further, and with particular reference to § 7430, supra, under which the indictment is drawn, we may say that on its face and by its language it neither purports to nor actually increases, discharges, or diminishes any pecuniary demand or obligation, neither does it purport to transfer, convey, discharge, or diminish any rights or property or affect them in any manner to the prejudice of any person. It merely recites that the maker of the certificate has received 1,000 gopher tails from J. A. Stewart,, and has destroyed them. There is absolutely nothing on the face of the certificate to indicate that, as a consequence of the existence of the facts so certified, any rights accrue to any one, or that any person or municipality incurs any liability by reason thereof. Standing alone, on the strength of its own recitals, it would not support a prosecution for forgery; for, as a genuine writing, it neither creates, nor purports to create, any liability. This is properly conceded by counsel for the state. It is contended, however, on the part of the prosecution, that while, as a general rule, an instrument invalid on its face is not the subject of forgery, because such an instrument has not the legal capacity to effect fraud, yet that an instrument which does not appear to have any validity upon its face may be shown to have validity by extrinsic facts, and so become the subject of forgery, and that an indictment describing such an instrument, and alleging sufficient extraneous facts to establish its validity as an instrument creating- or purporting to create an obligation or liability, will be sustained. This contention, we think, córrectly states the law, and it is supported by the authorities. In State v. Wheeler, 19 Minn. 98, the court said: “As an instrument, to be the subject of an indictment for forgery, must either appear on its face to1 be, or be in fact, one which, if true, would possess some legal validity (2 Bish. Cr. Law, §303), so, if it does not so appear on the face of the instrument set out in the indictment, facts must be averred which will enable the court to see that, if it were genuine, it would possess such validity.” See, also, People v. Shall, 9 Cow. 778; People v. Harrison, 8 Barb. 560; State v. Briggs, 34 Vt. 501.
Counsel for the state contend that, by pleading the resolution passed by the county commissioners authorizing the payment of a bounty for the destruction of gophers, and providing for payment
Specific authority has been given by the legislature to county commissioners to create a “gopher destruction fund” from taxes derived exclusively from a tax upon' real estate. This fund, when brought into existence, is subject to their control. This is found in § 1322, Rev. Codes, which reads: “The board of county commissioners of any county in this state may, at any time fixed by law for the levy and assessment of taxes, levy a tax of not exceeding two mills on the dollar of the assessed valuation, upon all real estate in such county, the proceeds of which shall be used solely for the purpose of promoting the destruction of gophers in such county. The fund provided to be raised in accordance with this section shall be denominated the ‘Gopher Destruction Fund/ and shall be kept separate and distinct by the county treasurer, and shall be expended by and under the direction and control of the board of county commissioners at such time, and in such manner, as is by such board deemed best to secure the abatement and extinction of the gopher pest.” It was within the power of the board to proceed under the foregoing section, and to levy a tax upon the real estate of their county at the time and within the limit provided by said section. Had this been done; there would have been a fund in reference to which they were authorized to contract for the payment of bounties, and it would then have been within their power to determine that certificates like that in question should be received as legal proof of the liability of such fund. Had that been done here, as in the Iowa case, the certificate in question would have been a subject of forgery. But in fact no tax was levied upon the real estate of the county, or at all, which is clearly á condition precedent to the existence of any authority under said section. On the contrary, the resolution shows upon its face that they were attempting to pay the bounty out of the gen