Wilkinson v. State

10 Ind. 372 | Ind. | 1858

Perkins, J.

Indictment for forgery. Motion to quash overruled. Trial, conviction, and sentence to the penitentiary. A motion in arrest of judgment was denied.

The evidence is not upon the record.

But two questions are presented, and they arise upon the indictment.

The indictment reads as follows:

“ The grand jurors of the state of Indiana, good and lawful men of Porter county, impanneled, charged and sworn in the said Circuit Court at the term thereof aforesaid, to inquire within and for the body of said county, upon their oaths present, that Frank Wilkinson, late of said county, on the twentieth day of March, A. D. 1857, at Porter county, did unlawfully, falsely, fraudulently and feloniously, give, barter, sell, utter, publish, and put away to one Joseph Jones, a certain false, forged and counterfeit bank note, which said note was made in imitation of, and did then and there purport to be a bank note for the sum of five dollars, issued by the Farmers' Bank of Kentucky, made payable to bearer on demand at their bank in Princeton,| which said note is of the tenor following, to-wit:

5. 111. 717. 5.

C. C.

The Farmers’ Bank of Kentucky -will pay Eye Dollars, at their bank in Princeton, to the bearer on demand.

5. Frankfort, Oct. 1, 1856. 5.

J. B. Semple, Cash. John H. Hanna, Pres’t.

Toppan, Carpenter, Casilear Sp Co., Phila. Sp New Pork.

“ With intent to defraud the said Joseph Jones, and with intent to have the same put in circulation; the said Frank Wilkinson then and there well knowing the said note to be false, forged and counterfeit: against the peace and dignity of the state of Indiana, and contrary to the form of the statute in such cases made and provided.

“ Mark L. De Motte, Pros. Att’y.”

Two objections are taken to this indictment—

1. That it is uncertain.

2. That it does not charge an indictable offense.

The uncertainty is alleged to arise from the use of the word said, in the sentence immediately preceding the copy of the note given in the indictment. It is claimed that that word refers to the note last before mentioned; that that is the genuine note; and, hence, that the indictment charges the passing of a genuine, not a forged note.

Our statute enacts that “ the words ‘ preceding’ and ‘ following,’ referring to sections in statutes, shall be understood as meaning the sections next preceding, or next following that in which such words occur, unless some other section is designated.” 2 F. S. p. 339. It lays down no rule, so far as we have noticed, in relation to the use of the word said. We determine its reference, in any given ease, by the sense. In the interpretation of a written instrument, Kent says that “ the relative same refers to the next antecedent, though the word said does only when the plain meaning requires it.” 2 Com. p. 555.

Applying this rule to the indictment before us, we have no difficulty in deciding that it refers to the counterfeit note.

The objection to the sufficiency of the indictment in charging the offense is, that it does not aver that Jones, to whom the bill was passed, did not know that it was a counterfeit. But the objection is groundless. It was not necessary that the indictment should negative such knowledge.

The indictment was framed upon section 32, 2 R. S. p. 416. It contains the language of that section, and a part of that of the succeeding section, which creates a separate offense. But the language incorporated from the latter section is surplusage and does not vitiate the indictment. See Dillon v. The State, 9 Ind. R. 408.

The essence of the crime created by the 32d section is. the intent to defraud by passing the counterfeit money.

The essence of the crime created by the 33d section is, the intent to have the counterfeit money disposed of — put in circulation.

Under this latter section, it is very clear that the want of knowledge of the character of the money on the part of the receiver, need be neither averred nor proved. Indeed, where a person (the manufacturer, for example,) was seeking to get counterfeit money put in circulation, he would be likely to select, as agents for the purpose, those who knew its character, and were skilled in such business.

Nor need the want of such knowledge necessarily be averred or proved in a prosecution under the 32d seetion; because the person passing the counterfeit money may not know that the receiver is aware that it is counterfeit, and hence may intend to defraud him, though such knowledge does exist; while the receiver, with such knowledge, may deem it advisable to take the money for the purpose of being able to prosecute and bring to justice the offender.

There may be another reason — though we decide nothing here upon this point. It is not clear that the intent to defraud must exist in reference to the person to whom the counterfeit money is passed. It may, perhaps, exist towards third persons. A counterfeit bill may be disposed, of to one man for the purpose of a fraud to be perpetrated upon another. The statute does not specify against whom the intent to defraud must exist; and perhaps an indictment, in the words of the statute, alleging the passage of the money with intent generally to defraud, would be good. It should be observed, however, that where the prosecutor does aver the intent to be to defraud a particular person, he will probably be held to proof of the averment.

J. B. Niles, for the appellant. M. L. Be Motte, for the state ⁽¹⁾.

Per Curiam. — The judgment is affirmed with costs.