Travis v. State

83 Ga. 372 | Ga. | 1889

Bleckley, Chief Justice.

In strong contrast to the length and verbosity of the motion in arrest of judgment, which is expanded into fifteen grounds (see the official report prefixed to this opinion), is the brief of counsel for the plaintiff’ in error, which is as follows:

“This prosecution can only he sustained, if at all, under section 4451 of the code. Under that section, an intent to defraud must be alleged., If the alleged intention appears from the forged instrument to be impossible of execution, the indictment is defective, and the defect is not merely formal; it affects the real merits of the offence. Code, §4629.”

The brief is correct in the suggestion that the indictment is founded on section 4451 of the code, which declares that “if any person shall fraudulently make, sign, forge, counterfeit or alter, or be concerned in the fraudulent making, signing, forging, counterfeiting or altering any other writing not herein provided for, with intent to defraud auy person or persons, bank or other corporate body, or shall fraudulently cause or procure the same to be done, such person so offending shall, on conviction, be punished,” etc.

The writing set forth in the indictment and copied at length in the official report, falls within the terms of section, because it is not elsewhere in the code provided for. The intention of the legislature was evidently to embrace every species of writing that could be used to defraud another. Berrisford v. The State, 66 Ga. 53; Burke v. The State, Ib. 157; Johnson v. The State, 62 Ga. 299; 2 Bishop Crim. Law, §523 et seq. No doubt, in some jurisdictions, any extrinsic facts requisite to render a doubtful, obscure or incomplete instrument efficient in the consummation of fraud would have to be alleged. 2 Bish. Cr. L. §545 ; Rembert v. The State, 53 Ala. 467, s. c. 25 Am. Rep. 639 ; but this rule does not prevail in Georgia, the code declaring, in section 4628, that an indictment which states the offence in the terms and language of the code, or so plainly that the nature of the offence charged may be easily-understood by the jury, shall be sufficiently technical and correct. The next section provides that exceptions which go merely to the form of an indictment, shall be-made before trial, and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offence charged. Here the forged writing is fully set out, and all averments in relation to it are in the terms and language of the code." If, as the indictment alleges, the forgery was committed with intent to defraud either the railroad company or John Bannister, the accused was guilty ; that such intent existed, and the mode by which it could have been accomplished, were matters of evidence, and after verdict it is to be presumed that they were established by evidence to the satisfaction of the jury. Rataree v. The State, 62 Ga. 245. There might have been several ways in which the forged instrument could be used by the forger, or some accomplice employed hy him, to defraud the company or the individual mentioned in the indictment, one or both of them. As the writing mentions a “check-roll” for July, it is fair to presume, after verdict, that it existed, and that it was a check-roll of the CQ^pany; also that Bannister’s name was thereon, and .that the roll showed some amount of money due him. The forged certificate, on its face not being transferable, the holder of the same, whether the forger or his accomplice, might be enabled thereby to personate Bannister successfully in drawing the money indicated as due him by the cheek-roll. The accomplishment of this fraud, it may he, could be prevented only by the precautionary measure of having the holder of the certificate otherwise identified. This precaution might be omitted, and if so, it can be easily seen how the forged instrument might be used to accomplish the fraud. Other methods of its accomplishment might be possible, and might have appeared to the jury with sufficient certainty through the medium of the evidence. We neéd not attempt to point-out more than one possibility. We are sure, at all events, that the intimation of counsel that it was impossible for the alleged fraudulent intention to be consummated, is not correct. The most that can he said is, that the writing is ambiguous; and under our system (both civil and criminal), ambiguities are referred to the jury for interpretation in the light of the extrinsic evidence, and certainly there is no requirement in our law to set out in an indictment the extrinsic evidence which is intended to be adduced in support of it. The court committed no error in refusing to arrest the judgment on the motion submitted. • Judgment affirmed.