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State v. Raymond

December 31, 1911


Appeal from the District court of the Second Judicial District of the State of Nevada, in and for Washoe county; W. H. A. Pike, Judge.

James Glynn, for Appellant.

R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for Respondent.

Per Curiam:

The appellant was indicted, tried, and convicted in the Second Judicial District Court, State of Nevada, in and for the County of Washoe, of the crime of forgery upon an indictment, the charging part of which reads: “That said defendant * * * did then and there unlawfully, fraudulently, falsely, and feloniously attempt to pass, as true and genuine, upon the Farmers' & Merchants' National Bank, a corporation, doing business in Reno, Washoe County, Nevada, with the intent then and there to defraud the said Farmers' & Merchants' National Bank, a corporation, a fictitious check in writing for the payment of money, purporting to be the check of one J. R. Cavanaugh, which said fictitious check is in the words and figures as follows, to wit: ‘Clearing House No. 16. San Francisco, Cal. 11—29, 1909, G. 16. Wells Fargo Nevada National Bank of San Francisco. Pay to the order of J. E. Raymond, $5,860-00/100 (five thousand eight hundred and sixty dollars). 9,834. J. R. Cavanaugh.' Indorsed on the back thereof, ‘J. E. Raymond,' when in truth and in fact there was not then and there any such person or individual as J. R. Cavanaugh in existence, the said J. R. Cavanaugh being then and there a fictitious person, as he, the said defendant, then and there well knew; the said defendant then and there well knowing the said check in writing aforesaid to be fictitious, false, and fraudulent.”

The defendant made a motion in arrest of judgment, upon the ground that said indictment has failed to charge a public offense, which motion was overruled, and the defendant sentenced to imprisonment in the state prison. From the judgment the defendant has appealed.

[34 Nev. 198, Page 201]

The appellant raises but one question, to wit, the sufficiency of the indictment to charge the essentials of a crime.

The indictment is based upon the provisions of section 83 of the crimes and punishments act (Comp. Laws, 4734), which section reads: “Every person who shall make, pass, utter, or publish, with an intention to defraud any other person or persons, body, politic or corporate, either in this state or elsewhere, or with the like intention shall attempt to pass, utter, or publish, or shall have in his possession, with like intent to utter, pass, or publish, any fictitious bill, note, or check purporting to be the bill, note, or check, or other instrument in writing, for the payment of money or property of some bank, corporation, copartnership, or individual, where, in fact, there shall be no such bank, corporation, copartnership, or individual in existence, the said person knowing the said bill, note, check, or instrument in writing for the payment of money or property to be fictitious, shall be deemed guilty of forgery, and on conviction thereof shall be punished.”

The only question presented in the record upon appeal is as to the sufficiency of the indictment. It is the contention of counsel for appellant that the indictment is fatally defective, in that it fails to set out the acts constituting the attempt to defraud. It is true that the indictment charges that the defendant did “attempt to pass” the fictitious check in question without alleging the mode or manner in which such attempt was made. The indictment in this case is in the language of the statute, which provides directly for attempts to pass checks, and we think it good, especially so when no objection was made thereto until after verdict. “It is a general rule that if an indictment is based upon a statute, it is sufficient if it follows the wording thereof. The rule, however, is subject to the qualification that, unless the words of the statute of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, an indictment charging the

[34 Nev. 198, Page 202]

offense in the language of the statute will be insufficient. * * * An indictment based upon a statute, in order to be sufficient, must set forth all the facts which are by a statute made ingredients of the offense.” (19 Cyc. 1393, title “Forgery.”)

This court has had occasion repeatedly to affirm the general rule that an indictment in the language of the statute is sufficient. (In State v. Brannan, 3 Nev. 238, relied upon by appellant, the indictment charged an attempt to commit grand larceny. Mr. Bishop states that the law of larceny is exceptionally technical. (Directions and Forms, 616.)

There is greater necessity for setting out the facts constituting an attempt in the case of a larceny than there is in a case like that charged in the indictment. In this case the appellant was charged with an attempt to pass a fictitious check upon a bank. The manner in which checks are ordinarily passed upon a banking institution are of such general and common knowledge that it could not ordinarily be said that a defendant could not anticipate from the charge in the indictment the character of evidence he would be expected to meet upon the trial. Our statute has defined the real test to be applied to every indictment, which is found in the sixth subdivision of section 243 of the crimes and punishments act (Comp. Laws, 4208), which reads: “That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language without repetition and in such a manner as to enable a person of common understanding to know what is intended.” (State v. Douglas, 26 Nev. 203.)

In the case of State v. Foster, 30 Kan. 365, 2 pac. 628, the court was considering an information charging that the defendant did “pass, utter and publish as true” a certain forged instrument. It was contended in that case that the indictment was insufficient, in that it alleged conclusions of law, and not a statement of facts. Speaking for the court, Brewer ...

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