510 STATE V. ,ADCO2C. [171 STATE V. ADCOM (TWO CASES). • OPinion delivered June 21, '1926. 1. FORGERY—FALSE STATEMENT.—The . term "forge or counterfeit any writing whatever" in Crawford & Moses' Dig., § 2642, relating to forgerY, refers to . a writing as being forged and not io the falsity of its statements, and a false statement of fact in •an instrument, which is itself genuine,. and by which another • person is deceived or defrauded, is not a forgery. 2. FORGERY—ELEMENTS OF OFFENSE.—A :person signing his own •name to a check and using it to obtain credit in a lawsuit against him is not, guilty of forgery, though done for the purPose of defrauding another. • Appeal from Jackson Circuit ' Court ; Dene H. Colentan, Judge; affirmed. STATEMENT BY THE COUBT. In both of these cases the Attorney General has sued out a writ of error to obtain a review of the record. In No. 3222, T. J. Adcox was indicted for forgery and uttering a forged instrument. The defendant filed a demurrer to the , indictment, which was overruled as to the first count and sustained as to the second count of' the indictment. , The prosecuting attorney then entered a nolle prosequi as to the first count and prayed an appeal tO the Supreme Court as to the second count, which.Charged defendant with the crime of uttering a forged instrufnent, which prayer was by the court refused. Wherenpon the State, through its Attorney General, obtained,a writ of error to review the proceedings as aboVe indicated.- . • The second'count of the indictment reads as follows : "And the grand jury aforesaid, in the name and by the authority aforesaid, further accuse the said T. J. Adcox of the crime of uttering a forged instrument,.committed as follows : The said T. J. Adcox, in the county and State aforesaid, on the 16th day of July, 1925, fraudulently and feloniously did utter and publish as true, .in a proceeding in Jackson Chancery Court, wherein the Farmers' National Bank of Newport, Arkansas, is plain-
ARk.] STATE V. ADCOX. 511 tiff and T. J. Adcox is defendant, and more particularly at the taking of the deposition of F. J. Harmon; in said cause, on behalf of the plaintiff, a certain forged and counterfeited writing on paper purporting to be a bank cheek i which said writing on paper is in words and figures as follows: " 'Newport, Ark., Jan. 6, 1920. 4 4 'FARMERS ' NATIONAL BANK. " 'Pay tO the order of By. Cash Four hundred eight Six 72-100 dollars ' T. J. Adcox 'H., "The said forged :and counterfeited writing on paper being then and -there uttered and published by the said T. J. Adcox as true in . said proceeding, with the felo: nious' intent then and there unlawfully,' fraudulently and feloniously to : obtain credit -on his indebtedness to 'said Farmers' National Bank Of Newport, Arkansas, to which he was not entitled, And to cause said Farmers' National Bank of Newport; Arkansds, to be injured in its lawful rights, then and there well knowing said writing on paper to be forged and CoUnterfeited, as aforesaid, against the peace and 'ClignitY of the State of Arkansas." - 'It is conceded that the same questi6n of laiw is presented iri dase No. 3223 as is presented in case No. 3222. - H. W. Applegate, Attorney General, John L. Carter, Assistant,'F. M. Pickens and H. U. Williamson, for appellant. OtiS- W. Scarborongh and McCaleb & McCaleb, for appellee. HARY; J., (after stating the facts). The Attorney • General says 'that the indictment is based on § 2+62 of ' Crawford & Moses' Digest, which reads as follows : any person shAll forge or counterfeit any writing what-, ever, whereby fraudulently to obtain the possession or to deprive another of any money or property, or cause him tO be injured in his estate or lawful rights, or if he shall utter and publish such instrument, knowing it
512 STATE V. ADCOX. [171 to be forged and counterfeited, he shall, on conviction, be confined in the penitentiary not less than two nor more than ten years." In Goucher v. State, 204 N. W. 967, 41 A. L. R 227, the Supreme Court of Nebraska held that the genuine making of a false instrument in writing is not generally a forgery, and that this is the usual interpretation of the courts, unless otherwise provided by the forgery statutes themselves. The court said that a check bearing the genuine signature of the maker, though. drawn on the bank in which the maker has no money or credit, with the inten-. tion . of cheating the payee or the bank, is not a forgery. The term, "forge or counterfeit any writing whatever; " refers to the writing as being forged, and not to the falsity of its statements. A false statement of fact in an instrument which is itself genuine, by which another person is deceived. or defrauded, is . not forgery. Rose v. State; 64-Col. 332, 1 71 Pac. 359, L. R. A. 1918C, 1193. In a case-note to 41 A. L. R., at page 231, it is said that, while there is a conflict in the authorities upon the subject, the majority view is that, under the common law and under statutes defining forgery in the substantial language of the common law, the genuine making of an instrument for the purpose of defrauding does not constitute the crime- of forgery. Nutherous cases from the Federal court and from the various State couits of last resort are cited which sustain the annotator. According to the allegations of the indictment, the check in this case was Written by the defendant for the purpose of defrauding the Farmers' National Bank upon which it was drawn and was so used by him in a civil action wherein said bank was the plaintiff and T. J. Adcox wis the defendant. • According to the allegations of the ,indictment, the defendant, T. J. Adcox, signed his -own name to a check on the Farmers ' National Bank and used the same to obtain credit in a lawsuit brought against him in the chancery court by said bank. He signed his own name
ARK.J $TATE V. AKON. 513 to the check, and is not guilty of forgery, although it was done for the purpose of defrauding another. The falsity of the instrument consists in its pirporting to be the check of some other .person than the-one actually making the : signature. PeoPle V. Bendit, 111 Cal. 277, 43 Pao. 901, 31 A. p. 831 ; People v: Cole, 1:30 Cal. 13 62 Pac: 274 ; State v: Ford, 89 Ore. 121, 172 , Pac.. 802 . ; State V. Young, 46 N. II. 266, 88 Am. Dec. 212; New Mexico y. Gutierrez, 13 N. IV1: . 312, 84 Pac: 525, 5 L. R. A. (N. S:)- 375; and People v. Pfeiffer, 243 Ill: 200, 90 N. E. 680, 17' ATM. Cas. 703, 26 L. A. (N. S.) 138. • • ; T. J. Adcox was charged with uttering a fOrged ifistrpment,. arid; . in :a prosecution for uttering a forged writing, before there 'can be a convietion, ; the State must prove that the instrument Offered was a forgery: Maloney v.-State, 91 Ark. 485, 121 S. W. 728. In that case it was held that forgery may be • Committed by the use: . of a fictitious name with the intention to defraud: The reason is that,, if the drawer of the check . has no existence, the name must have been affixed by some one without authority, and such act constitutes forgery. • But in Harrison, v. State, 72 Ark.-117, 78 S. W. 763, it was held that forkery is riot committed by drawing a check on a bank in which the drawer has . no funds, in the name by which he is generally known, although it is not his real name. • As we have already seeii, the instrument in citiestion was not a forgery because T. J: Adcox signed his own name . to itand the circuit court. properly Sustained .a dethurrer to the second count in the_ indictinent, which charged T. J. Adcox with uttering a forged itiOrtment. The conclusion we have reached renders' Wunnecea-sary to consider or determine the other objeCtions to the indictment. • *. ' • The jndgment in each case will therefore be affirmed:
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.