94 SUPREME COURT OF ARKANSAS, Ball v. State. BALL V. STATE. 2. INDIETMENT: For forging school warrant. An indictment for forging a school warrant need not allege that the school district on which the forgery was committed was a corporation. All school districts are corporations by statute; and it is never necessary in pleading to aver a legal conclusion. 2. SAME: Forging and uttering forged instrument. Misjoinder. Forging and uttering a forged instrument are separate and independent crimes, and cannot be joined in the same indictment. McClellan v. The State, 32 Ark., 609, is, on this point, disapproved. 3. CRIMINAL LAW : Former jeopardy. The court to which a change of venue in a criminal cause is taken acquires no jurisdiction of the cause until there is filed in it a transcript of the record and proceedings in the cause from the original court, duly certified by the clerk under the seal of the court ; and therefore a trial of the defendant upon a transcript without a seal would be no jeopardy, and no defense against a trial upon the same record after it is perfected by the seal.
NOVEMBER TERM, 1886. 95 Ball v. State. APPEAL from Desha Circuit Court. Hon. JOHN A. WILLIAMS, Judge. X. J. Pindall, for appellant. The court had no jurisdiction to try the case. The transcript from Arkansas county had no seal on it, and attaching the seal in Lincoln county did not cure the defect. 36 Ark., 237. The court erred in refusing to quash the indictment. The indictment for forgery under sec. 1726 charging forging of school warrants. Afterwards a second indictment for the same matter was returned under sec. 6253. The motion to quash was under sec. 2130, and-should have been sustained. The indictment charged more offenses than . one. Forgery is an offense and so is uttering a forged instrument, and a party could be convicted of one without. being guilty of the other. Sec. 2108. And this is not within the exception of sec. 2109. 33 Ark., 173 ; 32 ib., 203; 56 Iowa, 585. The indictment does not charge that the school district, was a corporation authorized to issue warrants. 14 Wisc., 479. Dan W. Jones, Attorney-General, for appellee: When the transcript first came to Deshait . had no seal, and the circuit court of that countY had no jurisdiction and could do nothing officially but dismiss it. 1 Ark., 265; 5 ib., 147 . ; 6 ib., 252;.9 ib., 469_; 36 ib., 237; Mansf., Dig., sec. 2204. It was th ' e duty of the *clerk of Arkansas county to remedy this defect, and when this was done it was a matter of no moment to the court how nor where it • was done, the only question being was it a true transcript.
96 : SUPREME COURT OF ARKANSAS, Ball v. State. It was necessary 'for' itppellant to raise the question of there being two indictments i by plea. 7 Ark., • 387. But the indictments were for different matters, the one for forgery, the other for mutilation of the director's record. Sec. 2130, Mansf. Dig., does not become operative. 'a school director, he was -iieVertbele's .gliiltY" of forging school warrants on his dis-iract. 621',' 'Man4. Dig:, gives authority to directors to _draw warrants for "wages due teachers." The war-ran6' . not. for money due teachers. If one author-. ized tO draw. for Money exceed his authority and draw a larger . sum. he is guilty 'Of forgery: 2 Archb. Cr. Pr. and Pl.; 1584: A "man may forge an instrument in his own hatne. 2 Bis. L . Cr., L., sec. 584, et seq.; 6 Cow., 72. It is admitted that the name of the payee was forged and be was no director. "It is said though that-the warrant might haVe been daWn tO require no indorsement. But the fact remains that appellant did draw the warrants so as tO*'render indorsement necessary. It is urged that the indictment is bad because it charges forgery and uttering the forged instrument, and the court below was 'asked to compel the prosecuting attorney to ekct on which charge he would try, and the motion was overruled. Does the indictment really charge more than one offense r The indictment was evidently drawn under sec. 1726, Mansf. Dig. This section provides but one punishment for forging any writing whatever, or uttering or publishing the same, knowing it to be forged. Sec. 2108, ib., while forbidding the charging . of more than one offense in the same indictment (except in the offenses named in the next seetion), , nevertheless permits the same offense to be charged in different modes' and by different means, if it may be so committed. This, of course, can only be done by different counts. The record in this case shows
NOVEMBER TERM, 1886. .97 Ball v. State. beyond all question or doubt, that the several counts in the indictment intended to charge the appellant with the one offense, and but one. Wharton on Cr. L., Vol. 1, S. 416; 9 Iowa, 53; 38 Iowa, 110; 11 Ga., 92; 1 Tex. App., 745; 1 Woodb. & M., 305. The indictment was not defective in failing to allege that the school district was a corporation, because being a school district it is necessarily a corporation. Sec. 6172, Mansf. Dig. SMITH, J. The indictment in this case contained four counts, the 'first two of which are as follows: "The grand jury of Arkansas county, in the name and by the authority of the state of Arkansas, accuse L. S. Hunter and W. F. Ball of the crime of forgery, committed as follows: The said L. S. Hunter and W. F. Ball, in the county and state aforesaid, on the 14th day of July, A. D. 1885, did, then and there willfully, unlawfully and feloniously, fraudulently and falsely make, forge and coun-tergeit a certain paper.writing, and indorse and sign upon the bad: of said paper writing the name of H. H. Hig-gins, Without his knowledge or consent; said writing porting to be a school warrant of §apca District No. 8, of Arkansas county, Arkansas, drawn upon the treasurer of Arkansas county, Arkansas, payable to H. H. Higgins or .order, for the sum of sixty dollars, for teaching school, out of the school fund of said district, dated July 14th, 1885, and numbered 3, signed by the said L. S. Hunter and W. F. Ball, as directors of said district, which said false and forged warrant is in words and figures, to-wit:
08 SUPREME COURT OF ARKANSAS, Ball v. State. 'No. 3. `DISTRICT SC 11.001.. FUND No. 8., July 14, 1885. 'Treasurer of Arkansas (lounty, Arkansas: Tay to H. IL Higgins, or order, the sum. of sixty dollars, for teachin g' school, out of the school fund. `L. S. HUNTER, 'W F B L, Directors.' "Indorsed on back— '7-14—'85. Please pay W. F. Ball. 'H. H. HIGGINS. 'Not paid for want of funds. •uly 15, 1885. Registered. 'R. SCANLAND, COlinty Treasurer.' "And the false and fraudulent making, forging and counterfeiting of the school warrant aforesaid, and signing the name of the said II. H. Higgins on the back of the same without his knowledge or consent by the said L. S. Hunter and W. F. Ball, as directors, was done with the felonious and fraudulent intent then and there to cheat and defraud the said School District No. 8, of Arkansas county, Arkansas, out of the sixty dollars aforesaid, to the great damage and , injury of said School District No. 8, contrary . to the statutes in such cases made and provided, and against tbe peace and dignity of the state of Arkansas. "II. The grand jury of Arkansas county, in the name and by the authority of the state of Arkansas, do further accuse L S. Hunter and W. F. Ball of the Crime of for7 gery, committed as follows, to-wit: The said L. S. Hunter .and W. F. Ball, in the county and state aforesaid, on the 4th day of July, A. D. 1885, did then and there willfully, tmlawfully and feloniously, wickedly, fraudulently and falsely utter and publish as true and genuine, with the felonious intent to injure, defraud and cheat the said Scbool District No. 8, of Arkansas county, Arkansas (and L. C. Smith, to whom they sold said warrant), a certain
NOVEMBER TERM, 1880. 99 Ball v. State. false, forged and counterfeited paper writing for the payment of money, to-wit: For the payment of sixty dollars purporting to be a school warrant of School District No. 8, of Arkansas county, Arkansas, payable to H. H. Hip:gins, Or order, for the sum of sixty dollars, for teaching school, out of the school fund of said district, dated July 14th, 1885, and numbered 3, and indorsed on the back of the same the name of the said H. H. Higgins, without his knowledge or consent, said warrant signed by the said L. S. Hunter and W. F. Ball, as directors, which said false and forged warrant is in words and figures to-wit: ' No. 3. 'DISTRICT SCHOOL FUND, District No. 8, July 14th, 1885.. 'Treasurer of Arkansas County, Arkansas: 'Pay to H. H. Higgins, or order, the sum of sixty dollars, for teaching school, out of the school fund. 4 1. S. HUNTER, 'W. F. BALL, Directors.' "Indorsed on back— 'July 14th, 1885. Pleak pay W. F. Ball. 'H. H. HIGGINS. `Registered. Not paid for want of funds. 'R. SCANLAND, County Treasurer." "And the said L. S. Hunter, and the said W. F. Ball, at the said time they so uttered and published as true and genuine to the said L. C. Smith, the said last mentioned false, forged and counterfeited warrant for the payment of money as aforesaid, indorsed as aforesaid, then and there well knew . the same to be false, forged and counterfeited, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Arkansas." The third count is similar to the first, and the fourth is similar to the second, the only difference being in the alle-
100 SUPREME COURT OF ARKANSAS, Ball v. State. gations respecting the persons whom it was intended to defrand. This indictment was found on the 19th of Sep-. tember, 1885. And on the 22d of the same month, the following indict-. ment was also returned into court: "The grand jury of Arkansas county, in the name and by tbe authority of the state of Arkansas, accuse L. S. Hunter .and W. F. Ball of the crime of malfeaSance in office, committed as follows, to-wit: The said L. S. Hunter and W. F. Ball, in the county and state aforesaid, on. the 17th day of September, A. :D. 1885, were then and there the duly elected, .qualified and acting school directors of School District No. 8, in Arkansas county, Arkansas, .and as such directors they made a contract with and hired one H. H. Higgins to teach school in said district for the period of three months, commencing May 25th, 1885, for the slun of sixty dollars per, month, and the said H. H. Higgins did teach said school for the period of three months and nine days, the said nine days being taught at fl(•st of said directors; and the said H. H. Higgins did receive, at the hands of the directors, three several warrants on the treasurer of Arkansas county, Arkansas, tw of •said warrants for forty dollars each, and the other warrant for one hundred and fifteen dollars, for his services as te acher aforesaid; but said L. S. Hunter and W. F. Ball direetors as aforeSaid, (lid fraudulently and corruptly make, forge and utter and publish as true awl genuine a certain counterfeit warrant, wtlich they drew on the treasurer of Arkansas eeunty, Arkansas. for the sum of sixty dollars, in favor of said H. H. Higgins; all of which was done without the knowledge or consent of the said H. H. Hig-gins ; and to cover up th corrupt and fraudulent issuance of the Sixty dollar warrant as aforesaid, the said L. S. Hunter and W. F. Ball then and there willfully, unlaw-
:NOVEMBER TERM, 1886. 101 Ball v. State. fully and corruptly tore out of the school directors' record and form book of said School District No. 8, a leaf upon which were pres 49 and 50 of said book, which said pres 49 and 50 contained the original contract with H. H. Hig-gins to teach said school , for the sum of sixty dollars per month, duly signed by said H. H. Higgins as teacher, and the said Ball and said Ilmiter as such directors; and the said I— S. Hunter and W. F. Ball did then and .there lawfully and corruptly put upon page 51 of said book a fraudulent contract with said H. H. Higgins, specifying the sim of eighty-five dollars per month as the sum to be paid him as such teacher, without the knowledge or consent of the said II. H. Higgins; all of which was done with the corrupt purpose aforesaid, contrary to the statute in such cases nsade and provided, and against the pere and dignity of the s • tate of Arkansas." Hunter having made his escape, Ball moved the court to quash the firSt indictment, nnder section 2130, of Mansfield's Digest, which provides that, "If there shall be, at any one time, pending against the same defendant, two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed." In State v. Barkman, 7 Ark., 387, it was ruled that a party wishing to avail himself Of the pendency of another indictment for the same offense, or other matter de hors • the record, should do so by plea. Mit as our code of criminal procedure :recognizes but three kinds of pleas (guilty, not guilty, and former conviction or acquittal, Mansfield's •Digest, sec. 2172), perhaps this defense, if the code does not by implication take it away, may he asserted by •motion. It is obvious, however, that the indictments were for different matters, one being for the forgery of the indorsenient
102 SUPREME COURT OF ARKANSAS, Ball v. State. upon a school warrant, and for the uttering of the paper so forged; the other being for mutilation of the directors' record. 1. INDICTMENT: For forging school warrant. After a demurrer to the indictment had been overruled the defendant interposed a motion that the state be required to elect upon which count it would proceed. The motion was denied, and after conviction the defendant moved to arrest the judgment. The indictment was not defective for failing to allege that the school district was a corporation. Every school district in the state is , a corporation, expressly made so by section 6172, .of Mansfield's Digest. And it is never necessary in pleading to aver a legal conclusion. 2. SAME• Forgery and uttering forged instrument. But the indictment charges two offenses, and the defendant was put upon trial for both at the same time. Forgery is one offense, and uttering a forged instrument as genuine, knowing it to be false and forged, is another and distinct crime. A party might be convicted of either without being guilty of the other. Mr. Bishep (1 (Jr. Pro., 3d Ed., sec. 449), says that counts for these two offenses are often and properly joined. And Dr. Wharton, in bis work on Criminal Pleading and Practice, 8th Ed., sec. 285, lays it down that offenses, though differing from each other, and varying in the punishment authorized to be inflicted for their perpetuation, may be included in the same indictment, and the accused tried upon tbe several charges at the same time, provided the offenses be of the same gen-• eral character, and provided the mode of trial is the same. Such was also our former practice. (Baker v. Stale, 4 Ark., 56 ;. Orr v. State, 18 ib., 540; State v. Holland, 22 ib., 242.) But our Criminal Code- has wrought a revolution in this respect. It enacts (Mansfield's Digest, sec. -2108) that "an indictment, except in cases mentioned in the next sec-
NOVEMBER TERM, 1886. 103 Ball v. State. tion, must charge but one offense; but, if it may have been committed in different modes and by different means, the indictment may allege the means and modes in the alternative. Section 2109. The offenses named in each of the subdivisions of this section may be charged in . one indictment. First—Larceny, and knowingly receiving stolen money. Second—Larceny, and obtaining money or property on false pretense. Third—Larceny and embezzlement. Fourth—Robbery and burglary: Fifth—Robbery, and an • assault with intent to rob. Sixth—Passing or attempting to pass counterfeit money or bank notes, knowing th em to be such, and having in possession counterfeit money or bank notes, knowing them to be such, with the intention of circulating the same. The change in the rule has had its due effect given to it in State v. Brewer, 33 Ark., 176 (joinder of counts for an affray and for assault and battery) ; in State v. Lancaster, 36 Ark., 55 (uttering vulgar and profane language at the domicile of another and making violent threats against him there, with intent to insult or terrify him) ; in State v. Rhea, 38 Ark., 555 (several counts for gaming, without indicating that they were all intended to charge but one offense) ; and in Stale v. Morris, 45 Ark., 62, where it was attempted to unite a count for exhibiting a gambling device with one for permitting it to be exhibited in a house owned by the accused. McClellan v. State disapproved. We are not unmindful that in McClellan v. State, 32 Ark. 609, this court impliedly sanctioned, by passing over sub silentio, the joinder of comits for forging and littering a forged instrument. But the attention of the court seems not to have been directed to the statute, which .is plain in meaning and peremptory in its terms. That case is, on
104 SUPREME CouRT OF ARKANSAS, Ball v. State. this point, disapproved. Compare State v. McCormick, 56 Iowa, 585, where the same question was directly presented and adjudged under statutory provisions in substance identical with ours. Forgery and uttering forged Instrument are distinct crimes. It is scarcely necessary to say that the insertion of the several counts can not be justified on the ground that they merely state the different modes and means by which the crime- may have been committed. .The two crimes are separate and independent: The uttering of forged .paper is a distinct and substantive fact, .not necessary to be established on a prosecution for forgery; and vice versa. 3. Change of venue: Former jeopardy. • There is only one . other matter that . we need discuss. Upon - the prisoner's application the venue was changed to Desha. And a jury was impaneled and -sworn to try him upon the issue raised by his plea of not guilty. At this point it was discovered that the transcript of the record and proceedings of the court from which the cause • had been removed were not authenticated- by the seal of that. court. And the jury was thereupon discharged, without the defendant's consent. The transcript, it seems, was then withdrawn .by direction of the presiding- judge and placed in the hands of the sheriff of Arkansas county, with directions to _procure the seal to be attached. This was done and_ the transcript was again filed in the Desha court. The defendant now pleaded former jeopardy. Upon the trial of this issue before a jury, the defendant offered to prove by the officer to wbom the transcript had .. been intrusted, that the seal of the circuit court . of .Arkansas i;ounty bad been pnt on in Lincoln County. But the .court excluded the testimony. The jury were instructed that if they believed from the evidence that, at the time the first jury was sworn, the seal was not upon the transcript, the defendant had not been in jeopardy. And they found the
NoVEMBER TERM, 1886. Ball v. State. issue against the prisoner, who was then tried before still another jury upon the plea of not guilty, and conVicted, and sentenced to the penitentiary.; Vhen the order is made to change . the venne, it is , the duty of the clerk of the court in which the , cause is pending to make out a transcript of 'the' record -and proceedings, and transmit the same, duly certified; under the 'Seal . of the court, to the clerk of the court :-. to which the canse s is removed. Mansf. Dig., sec. 22042' According to the preVious deeisions 'of, this •court, the jnrisdiction of the Desba. cirCuit' &ink . To* try' : Ball's • ease depended on the reception of the papers, accompanied by the record, under the seal of the court which •Aransferre& the cause. Consequently, 'if the -seal ..e . f. the .circfi of Arkansas county was lacking, Ball . i4cpTyqd by tbe swearing of .tbe first jury ; for he .could-not.-have• been legally convicted by that jury. Stone, v„.13.91911., 9 Ark., 460; Hudley v. State, 36. ib:, 237. ;,:ffaglinc,c0,.Rope v. Rogers, 37 ib., 491 ; Burris 'v.• State, as • The cOurt committed no . errer in . refasing • io''alloW the defendant to adduce proof that the circuit clerk ef Arkan-rsas county had affixed the seal of • his. office 'eutside'of his own county. , Such evidence would 'not . haVe hadi the 'most remote tendency to prove the issue-Join , e E d o . r . , . if Ball had been in jeopardy of his liberty, it was by reason of the impaneling and- swearing Of the jury,.. and 'not -by -reason of what had afterwards• . occnrred , in •the effort to remedy the defect. The judgment must be reversed''and the cause remanded, with directions to require the state to make its election 'whether it will prosecute for • forgery or •or the ntter-ance of the forged paper. The prosecuting attorney may' be allowed-to retain the: first and • third counts, or the second and fourth.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.