Teague v. State

86 Ark. 126 | Ark. | 1908

Hart, J.,

(after stating the fficts.) Appellant contends that the indictment is bad because the words “tenor, purport and effect” were used in describing the note alleged to have been forged and uttered. The word “tenor,” used in an indictment, imports an exact copy. McDonnell v. State, 58 Ark. 242; Crossland v. State, 77 Ark. 537. The words “purport and effect” mean the substance of an instrument, and were, therefore, surplusage in the indictment, for their meaning does not conflict with that of the word “tenor,” but is rather included and expressed in it.

2. Appellant, also, contends that there'is a variance between the alleged forged instrument contained in the indictment and the one introduced in evidence. A comparison of the' two shows that the variance consists in the word "date” marked as indicated in the face of the note and .the words and figures as follows “No. 535. Due November 31,-06,” written in the margin of the note. In the absence of proof to the contrary, the presumption is that the marks on the word "date" (thus, sjatg:) were intended to erase it, and that the word “maturity" was substituted in its stead before the note was presented for negotiation by appellant. Hence it forms no part of the note. The memorandum in the margin of the note, showing its number and the date when due, forms no part of the instrument. Eor this reason they may be omitted from the description, when the instrument is set out according to its tenor. McDonnell v. State, 58 Ark. 249.

3. Appellant also urges that the court erred in not sustaining a demurrer to the indictment for the reason that it fails to allege that he uttered the instrument with intent to defraud. Under the Code no particular form of words is required to be used in an indictment. Read v. State, 63 Ark. 618; Blevins v. State, 85 Ark. 195. The indictment, stripped of its verbiage, alleges that appellant unlawfully and feloniously uttered a note, knowing it to be forged, with the intent to feloniously obtain possession of the property of another. These allegations necessarily import that it was uttered with a fraudu■lent intent. Bennett v. State, 62 Ark. 517; Carroll v. State, 71 Ark. 403.

4. Appellant also urges that there was error in not giving his first instruction on the subject of insanity as a defense to crime. This point was fully covered in the instructions given by the court.

Judgment affirmed.