45 Fla. 118 | Fla. | 1903
The plaintiff in error was indicted, tried and convicted of the crime of forgery in the Circuit Court of Washington County and brings his case here for-review by writ of error.
The indictment upon which he was tried is as follows, omitting the caption .thereof: “The grand jurors of tho
After verdict the defendant moved in arrest of judgment on the following .grounds: 1st. That said indictment- is vague, indefinite and uncertain and insufficient to warrant a conviction.
2nd. That said indictment does not allege- facts sufficient to charge defendant with the crime of which he was convicted.
áth. That said indictment simply sets out the purport or substance of the alleged forged order to have been uttered and published, and gives no reason or excuse why the same is not set out more specifically or in haec verba.
5th. That said indictment is vague, indefinite and uncertain, and charges no offence known to law.
This motion was denied and such ruling is assigned as error. This ruling was erroneous. It is well settled that unless such requirement is abrogated by express statute it is necessary for every indictment charging forgery or the utterance of a forged instrument to set out the material parts of the forged instrument ipsissimié verbis of the instrument itself, or, as it is termed in the books, by its tenor, unless the instrument be lost or destroyed, or in the possession of the defendant, so that the prosecution can not have access thereto, in which event such fact must be stated in the indictment as an excuse for not setting th& instrument out by its tenor. The reason for this rule is that the court may be able to judge by inspection of the instrument whether from its terms it is the subject of forgery. 9 Ency. Pl. & Pr., 571, and cases cited; 2 Bish. New Cr. Proc. Sections 403-404-412 and citations.
The indictment in this case fails to' comply with this rule and is, therefore, defective for that reason. But besides this, and even if it was sufficient in such a case to give only the import of the forged instrument in an indictment charging its utterance, the indictment in this «ase in undertaking to give the import of the instrument