ARK.] BLAIS v. STATE. 327 BLAIS v. STATE. Opinion delivered March 28, 1910. I. -R . ORGERY—INDICTMENT— CLERICAL MISPRISION. —An indictment for forgery is not bad which describes the instrument forged as "a certain writing or paper pnrporting to be a bank check," where it is manifest that the word "on" was intended. (Page 328.) 2. CRIMINAL LAW — TWO COUNTS — PLEA Or GMLTY. — Where an indictment contains two counts, one of which is good, a plea of guilty as to both counts will be sustained as to the good count. (Page 329.) 3. FORGERY— DESIGNATION OP PERSON DEFRAUDED. —In an indictment for forgery it is unnecessary to state whether the association or company intended to be defrauded was a corporation or a partnership. (Page 329.) Appeal from Sebastian Circuit Court, Fort Smith District ; Daniel Hon, Judge ; affirmed. Hal L. Norwood, Attorney General, and Wrn. H. Rector, Assistant, for appellee. Indictments should not be quashed for clerical misprisons. 75 Ark. 574 ; 66 Ark. 559 ; 90 Ark. 123. In an indictment for forgery by signing a company's name, it need not be alleged that the company is a partnership or a corporation. 122 Ala. I00 ; 25 N. Y. 380 ; , 48 Ark. 94 ; 71 Miss. 874 ; 17 Nev. 224 ; 21 Wend. 409; i Johns. 320. McCuLLocn, C. J. Appellant by this appeal questions the sufficiency of the first count of the following indictment : "The grand jury of Sebastian County, for the Fort Smith District thereof, in the name and by the authority of the State of Arkansas, accuse the defendant, Charles Blais, of the crime of forgery, committed as follows, towit: The said defendant, in the county and district aforesaid, on the first day of November, 1909, unlawfully, fraudulently and feloniously did forge and counterfeit a certain writing or paper purporting to be a bank check, which said writing on paper, in words and figures following: " 'No. 129. Fort Smith, Ark., Nov. I, 1909. " 'Pay to the order of Charles Blais, $16.08, sixteen 08-10o dollars. " 'The IKatzung Cigar Company, "By L. F. Katzung. " 'To the Merchants' National Bank, Fort Smith, Arkansas.'
328 BLAIS V. STATE. [94 "Which said bank check so unlawfully, fraudulently and feloniously forged and counterfeited by the said Charles Blais, the defendant, with the felonious intent then and there fraudulently and feloniously to obtain possession of money and property of the Katzung Cigar Company, and L. F'. Katzung, and the Merchants' National Bank of Fort Smith, Arkansas, against the peace and dignity of the State of Arkansas." Second count: "The grand jury of Sebastian County, for the Fort Smith District thereof, in the name and by the 6.uthority of the State of Arkansas, accuse the defendant, Charles Blais, of the crime of uttering a forged instrument, committed as follows, towit : The said defendant, in the county and district aforesaid, on the first day of November, 1909, unlawfully, fraudulently and felo-niously did utter and publish as true to S. Winter, a certain forged and counterfeit writing on paper, purporting to be a bank check, which said writing on paper was in words and figures following, towit : "No. 129. Fort Smith, Ark., Nov., 1909. " Tay to the order of Charles Blais $16.o8, sixteen o8-ioo dollars. " 'The Katzung Cigar Company, " 'By L. F. Katzung. " 'To the Merchants' National Bank, Fort Smith, Arkansas.' "The said forged and counterfeited writing on paper being then and there passed, uttered and published as true by the said Charles Blais to said S. Winter, with the felonious intent then and there unlawfully, fraudulently and feloniously to obtain possession of the money and property of said Winter, he, and said Charles Blais, the defendant, then and there well knowing said writing on paper to be forged and counterfeited, as aforesaid, against the peace and dignity of the State of Arkansas." We are not favored with a brief on behalf of appellant, but the Attorney General points out and defends against two alleged defects, viz : ( I) That the alleged forged instrument is described in the alternative, being described as a "writing or paper;" (2) that the Katzung Cigar Company is not alleged to be a natural person, a partnership or a corporation. Answering the first attack on the indictment, we hold that, when the language of the whole count is considered together,
ARK.] 329 it is manifest that the use •by the pleader of the word "or" was a clerical error, and that the word "on" was intended to be used. The latter word was used in the same connection in other parts of the indictment. The defect, if any, is immaterial, and did not tend to the prejudice of any substantial right of the accused person. But, even if we treat the disjunctive "or" as having been intended to be used, it does not affect the validity of the indictment, for this does not make the description it/ the alternative. The word "writing" and "paper," when connected disjunctively, clearly amount to the same thing, a written instrument, in the words and figures following. Appellant entered a plea of guilty to both counts of the indictment, and it is alleged that the instrument was forged with intent to defraud L. F. Katzung as well as the Katzung Cigar Company ; so that, if the charge as to the Katzung Cigar Company fails for want of proper designation as a natural person, a partnership or a corporation, it will be treated as surplusage, and the other charge of an intent to defraud L. F. Katzung is sufficient to sustain the indictment. 2 Bishop, Crim. Proc. 425; Gates v. State, 71 Miss. 874. Moreover, the authorities seem to sustain the view that in an indictment for forgery, unlike an indictment for larceny or kindred offenses, it is unnecessary to state whether the association or company intended to be defrauded was a corporation or a partnership. Denson v. State, 122 Ala. Too; Gates v. State, supra; Noakes v. People, 25 N. Y. 380. Judgi lent 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.