6795

#### STATE v. ZIMMERMAN.

1. Pleadings — Indictment.—If there be good and bad counts in an indictment a plea of guilty will be referred to those counts which are good.

2. Ibid. — Forgery.—An indictment for forgery can not be defeated merely because all the steps necessary to perfect the fraud are not set out therein. The indictment here *held*to allege that forging an entry in the Bond Book of the State and uttering the forged writing were done with intent to defraud, and it charges facts from which it must be inferred these acts would operate to the injury of the State.

3. Forgery. — The common law as to forgery is of force in this State; and as we have no statute abrogating the offense with intent to defraud the State or the public, forgery with intent to defraud the State is a crime in this State.

Before Prince, J., Richland,

March, 1907.

Affirmed.

Indictment against Daniel Zimmerman and Thomas J. Gibson for forgery. Prom sentence on plea of “guilty as charged,” defendant Zimmerman appeals.

*Messrs. Bellinger & Welch,*for appellant,

cite: *Plea to indictment charging misdemeanor and felony is referable to felony only:*14 Rich., 169; 113 Gal., 278. *Subject of forgery is now covered by statute:*3 Stat., 468; 5 Stat., 397; 11 Stat, 366; 54 & C., 310'; 5 Sltrob., 58; 29 S. C., 180'; 'Or. Code, 373; 14 S. 'C., 350‘. *Fraudulent intent is not charged:*9 Ency. P. & P., 580; 36 Kan., 322; 19 Cyc., 1395. *Nor is it charged that the writing might injure another:*19 'Cyc., 1379, 1405-6; 13 Ency. P. & P., 559; 17 Wend., 541; 37 Tex., 591; 5 So., 618; 9 Ency. P. & P., 5-62-7; 30 La. Ann,, 557; 3 Gal., 571; 5 Black., 39. *The State is not “any person” to be defrauded under the statute:*3 Stat., 463; 2 Russ. Crimes, 414; 24 & 25 Vic., 98; Ros. Grim. Ev., 517; Bish. on Stat. Grimes, 62; 46 Gal., 154; 16 N. J. L-, 285; 7 Abb. Prac., 83; 46 Ohio St., 234; 5 Stat., *290397; *22*Eney., 740; 19 R. I., 336; 6 Hill N. Y., 33; 52 N. Y., 530; 150 Ind., 336; 72 N. Y., 365; 24 Tex., 64; 6 Tex. Apip., 264; 23 Tex. App., 404; 8 Tex. App., 404 ; 92 Ky., 630'; 37 Eed. R., 108. *In many States it is only necessary to allege a general intent*toi *defraud:*Crina. Code Ala., Art. 3852-5; 47 la., 455; 8 la., 295; 30 Kan., 365; 32 Kan,, 360; 36 Kan,, 325; 39 Ha. Ann., 238; 37 Ha. Ann., 292; 28 Ha. Ann., 46; 39 Ha. Ann., 238:; 50 Me., 422; 100 Mass., 12; 57 Mick, 73; 43 Minn., 196;.86 Mo., 33; 78 Mo., 49; 109 Mo., 432; 93 Mo., 88; 147 Mo., 181; 144 Mo., 626-; 112 ' Mo., 447; 108 N. Oar., 776; 80 N. Oar., 403 ; 86 N. Oar., 599; 19 Ohio St., 540; 12 Or., 104; 86 Pa. St, 355; 12 Phil, 608.; 23 Tex. Apip., 401; 6 Tex. App., 264; 1 Tex. Apip., 146; 51 Vit.,- 102; 31 W.. V'a., 127; 29 W. Va., 147; 32 W. Via., 546. *Word “person” defined in many States to include State:*Pen. Cede Ariz., Sec. 7, Sulk 20; Homers Rev. St. Ind, Siec. 1899'; Pen. Code Idaho, Sec. 4544; Gen. St. Kan., Sec. 2315; Gen. Sitat. Minn., Siec. 6842; Oo'die Miss., Sec. 1542; Cobb. Ann. Sit., Neb., Sec. 2382; Haws N. Y. C., 677, Par. 5; Rev. 'Code N. Dak., Secs. 7727-8; Rev. Slat. Ok., See. 2704; Ann. Codes & Stats. Or., Sec. 2186; Pen. Code So. Dak., Secs. 822-3; Pen. Code T.ex., Art. 24; Rev. Stats. Utah, 4053;'Bail. Codes' & Stats. Wash., Secs. 478'6, 6786. *Judicial interpretation of vttord “person: ”*10 Ark., 104; 84 U. &, 322; 35 Ga., 315; 95 M., 445; 163 Mass., 446; 73 Ind, 362 ; 44 Eed. R., 17; 94 U. S,, 315; 52 N. Y., 530. *Legislative definition:*Code 1902, 38; Con. 1895, Art. IX, Siec. 1, Art. VIII, Art. VII, Secs. 8 and 11; 69 Eed. R., 911; 22 Kan,, 170; 94 U. S., 345.

*Solicitor George Bell Timmerman,*contra.

March 7, 1908.

The opinion of the Court was delivered by

Mr. Ernest Moore, *Acting Associate Justice*

*in place of*Mr. Justice Woods, *disqualified.*At the March term, *2911907, of the Court of General Sessions for the County of Richland, the appellant Daniel Zimmerman and one Thomas J. Gibson were called to plead to an indictment containing substantially the following three counts :

(1) Charging conspiracy between the said Daniel Zimmerman, a bookkeeper in the office of the State Treasurer of the State of South Carolina, and one Thomas Gibson, “to forge and to make a false entry in a Bond' Registry Book, a public record in the State Treasurer’s office of the State of South Carolina, and to plaae on the market and sell” certain surrendered and redeemed bonds oif the said State, “and appropriate the proceeds to their own use, with intent to cheat and defraud- the State of South Carolina,” etc., and that they afterwards “accomplished their unlawful and wicked purpose,” etc.

(2) Charging forgeryby the said D'aniel Zimtmerman, in that he did “forge and make a false entry in a Bond Registry Book, which said Bond Registry Boiok was then and there a public record of the State Treasurer’s office of the State of South Carolina, and was then and there kept by the said Danieil Zimtmierman as bookkeeper in said Treasurer’s, office,” ‘by entering in 'the said B'ond Registry Book the bond No. 744 Brown Consols, in lieu and in place of Brown Consol Bonds, one of either of the Nos. 959 or 1445, redeemed by the State of South Carolina on the said 21st day of May,” 1901, “and should hawe been cancelled on that day by the said Dlaniel Zimmerman, whose duty it was to cancel them then and there; but the said Daniel Zimmerman- did not cancel either of the said bond's, numbered 959 and 1445, and did not enter them on said Bond Registry Book after they were redeemed then and there -by the State of South Caro lina, but entered 'the old surrendered, redeemed and can-celled bond, No. 744, on the Bond Registry Book as a bond surrendered and- redeemled on that day, which- said bond, No. 744, -bad been redeemed by the State of Stouth Carolina some years prior thereto, and at that time cancelled, and the *292said Daniel Zimmerman then and there placed on the market and soldi both of the said 'bonds, Nos. 959 and 1445, with intent to 'defraud the State oif South Carolina,” etc.; and, also, 'Charging the said defendant Gibson with aiding and abetting in the commission of the felony aforesaid.

(3) Gharging the uttering and publishing by the said Daniel Zimmerman, in that he did “utter and publish as true a certain false, forged and counterfeited writing, to wit: the false and forged entry in a Bond Registry Book,” etc., being the same entry charged as forgery in 'the said second count, and “placed on the market and sold ‘both of said bonds, Nos. 959 and 1445, with intent to defraud the State of South Carolina,” etc.; and ateo charging aiding and abetting as to the defendant Gibson.

Upon arraignment the 'defendant Zimmerman moved to quash the second and third counts of this indictment upon the ground' that no indictable offense was 'charged, inasmuch as at comimon law: there is no such- offense as that charged in said count's and under the statute it must be charged to have been committed with intent to cheat and defraud a person and the State of South Carolina is not a person as mjeant by 'the statute. This motion being overruled, the defendant Daniel Zim|merman 'entered a plea of “guilty as charged” in the indictment, and having been duly sentenced, he now) appeals from, the order refusing toi quash the second and third! counts of the indictment.

Appellant’s exceptions .allege error in the holding that the second and third counts of 'the indictment charge 'an indictable offense, the ground's of alleged error being:

1. “Because at common law diere is no such offense as that charged in the said two counts.

S. “Because, under the statute, the offense must be alleged to ibe to cheat and defraud 'any person’ and ‘the State’ is not such ‘person’ as is therein contemplated.”

*2931*292It is to be noted that no question is made -by 'these exceptions as to the sufficiency of the first count oif the indictment, and no error is thereby alleged in the judgment and sentence *293upon that count. In argument, however, the appellent submits that the first count oif the indictment charges a misdemeanor 'and. the other county attempt to charge felonies, and that a 'general plea of guilty and the sentence thereupon must be referred to the graver offense only; appellant citing in support of this proposition the case of the *State*v. *Nelson,*14 Rich., 169.

While it may foe true that, where all the counts in an indictment are good, a general plea of guilty and the sentence thereupon will be referred to the higher offense; yet it can not be doubted that such' a plea is applicable to all 'and each of the counts of the indictment, and, therefore, if there be good and bad counts in the indictment .the plea oif guilty will be referred to that one which is good. The plea oif guilty confesses the truth of 'whatever is well alleged in ‘the indictment. See 1 Bish. Cr. Proc., 795. If then the 'contention of the appellant is correct, that the first count of the indictment here is the only good count, the judgment upon the plea of guilty must be referred to that count. There being in the exceptions before this Court no allegation oif insufficiency in the first count of the indictment nor of error in the judgment pronounced upon the plea of guilty to this first count, it necessary follows that the judgment below must be .affirmed upon this ground, irrespective of the questions as to the sufficiency of the second and third counts of the indictment.

While this conclusion might properly be considered' as rendering speculative the questions raised by the 'exceptions taken to the judgment below, it may nevertheless be advisable that ttiese questions also should be determined They will, therefore, now be considered.

2 The first exception is couched in such general terms as, apparently, to render it liable to the objection 'that it does not point out with sufficient certainty the alleged error of which complaint is sought to be made. Waiving this consideration, however, it appears from the argument of the appellant before this Court that one of *294the defects in the second and third .counts of the indictment, of which appellant sedes to complain by thi's exception, is claimed „ta consist in the alleged failure to charge in said count ¡any intent to. defraud on the part ¡of the defendant Zimmerman in the averred acts, of forgery and of uttering the forged wiriting. It is contended that ¡the words, “with intent to defraud the State of South Garol-ina,” occurring in both of the said counts., must be considered as relating solely to the immediately preceding clause referring to the sale of the said bonds, and that the said counts, therefore, contain no allegation either that the forging of .the entry in .the Bond Registry Book or the uttering of the forged writing was done “with intent to defraud.”

Upon general principles of grammatical construction, •however, the words “with intent to defraud,” etc., as found in .each of tírese counts, must be held to¡ relate to and qualify the acts of forging 'and of uttering -the forged writing, as charged in said two counts, ¡as -well as toi tire act of •selling the bonds. 1 Bish, Or. P'roe., Secs. 3¡56, 510', 511. The oharge here is of the doing of ail- these acts as parts of the samie transaction and in furtherance of the same purpose “to defraud tire State of South 'Carolina,” and this' intent is sufficiently charged in these counts as existing- in the acts: of forging- the entry and of the uttering- of the forged entry as Well as in the selling of the bonds. To- hold otherwise wlould be to violate the ordinary rules of legal and grammatical construction and to demand -a minute particularity of expresrsion not necessary to a due understanding o-f the common and ¡ordinary forms of legal language.

Another objection advanced in -appellant’s' argument against the second and third counts of -thi's; indictailent, and of which appellant seeks to avail himself under the general term's of the first exception, is the alleged -absence of any averment that the forged writing was one which, if genuine, might injure another. W'ith reference to this contention it is sufficient to say that it is substantially -charged in these counts that th'e fraud was sought to 'be committed by the *295act of the said defendant Zimmerman, then a bookkeeper in the office of the State Treasurer, in making, on the 21st day of May, 1901, a false entry upon the said Bond Registry Book of the redemption) -and 'Cancellation on that day oif a certain previously redeemed and ¡cancelled bond, No. 744, whereas in truth and in fact the bond No. 959 or 1445 was the bond so redeemed and which should have been soi entered as cancelled ¡on that day; and that this false entry was- made with intent thereby to mlalce it affirmatively appear from said public record -that, neither said bond Noi 959 nor 1445- had been then redeemed, and -thus to enable -the said Daniel Zimmerman, with better prospects of success and with less danger of detection, to carry ¡out his purpose of placing upon the market and selling ¡the said two last-mentioned- bonds as Valid outstanding obligations of the State of S'outb Carolina, with intent thereby to -defraud the said State. Hence it appears -charged in the indictment that the forged writing consisted of a faitee entry made by- the defendant Zimmerman- in -the Bond Registry Book, calculated and intended to aid in the proposed commission of the then intended, fraud upon- the State of S’outb -Carolina -then -in procese of being carried out by the sale of -an already redeemed but still unoancelled bond; and therefore, that such entry- Was- an- act which might operate to the in-jury of the said -State. A false entry -made in a public record-, with intent to- deceive and defraud, is a forgery. 19 Cyc., 1386.

It is- not necessary to mention that the forgery was complete in -all -its pants in- order to make the forger liable. The essence of the crime i-s the intent to defraud, and the indictment therefor can not be defeated merely because all the-steps necessary to¡ perfeot the fraud are not set out therein. *State*v. *Bullock,*54 S. C., 311, 312, 32 S. E., 424; *State*v. *Jones,*1 McM., 236. Upon these -considerations the first exception must be overruled.

*2963*295By the second- -exception the proposition is advanced that forgery in this State is an offense ¡which -can he committed *296'only- -against the property of “;a person” and that “the State” is not “a- person” within the definition of this crime, either by the statute or at common law as now existing in South Carolina.

In the comparatively recent case of *McConnell*v. *Kennedy,*29 S. C., 180, *7*S. E., 76, forgery is recognized- as being in this -State still a common law offense, the Court in that case citing 2 Wharton Or. Law, 1431, and 2 Bish. Cr. L., Sec. 586, as containing correct statements- of the common law of force in this- State -as toi the writings of -which forgery may be -committed. See, also, *State*v. *Floyd,*5 Strob., 58; *State*v. *Jones,*1 McM., 247, and State v. *Bullock,*54 S. C., 312, 32 S. E., 424.

In the statutory law of South Carolina upon the subject of forgery there is no language evincing an- intention to abrogate or limit in any way -the common law asi to forgery. On -the contrary, the object of -these -statutes, appears to have been the 'enlarging of the offense -and the regulating and fixing ¡the punishment therefor. See 11 Stats., 341; 3 Stats., 470; 4 Stats., 543; 5 Stats., 397; Cr. Code, Sec. 373.

It is not necessary, therefore, to consider what meaning may have been intended ‘by- the term “any person” as used in some of these statutes in referring to the owner against whose property rights this crimje might be committed.

It is only necessary to determine whether tire crime of forgery at the 'common law could be committed against the property rights oif the commonwealth or the State.

In 2 Bish. Cr. Law, Sec. 531, in speaking of the writings which miay be the subject of forgery a-t the common law, the learned author says.: “If the -forgery of writings prejudicial -to individuals is indictable, *a fortiori*it may be when prejudicial to -many individuals -or the public. Indeed this is the kind of common law forgery mostly spoken of in the older books. Hawkins mentions as -examples- -the fas-ely and fraudulently m|akinig or altering any matter of record or any other authentic matter of a public nature.” Again, in 2 Bish. Cr. Proc., Sec. 421, it is -said that “the intent may *297be laid to defraud a -township named, or the State, if such is the fact.”

In 19 Cyc., 1378, -this statement of the law is found: “While -an- intent toi defraud isx essential, it is not necessary that 'there should be intent to defraud any particular person, but there must at all .events' be *&*possibility oif some person being defrauded. A corporation, State, the United States and the estate of a decedent are each regarded -as- a person; and where the forged instrument is passed to a servant acting as such, the master is -tifoe person defrauded.”

Upon a full consideration of the ¡common law a© to forgery originally in force in this State and upon an examination of the language, intent and purpose of the statutes of this State upon the subject of forgery, it can not with any plausibility be contended -that, by '¡the use In these statutes of the words “ any person” in describing the party -to be defrauded, any intention is evidenced to abolish the co'mlmpn laiw crime of forgery -when committed with intent to defraud the State.

The ¡common law as to forgery being of force in this State and there being no statutory enactment abrogating the offense when committed with intent -to defraud the State or -the public, it is considered that the second -exception of the appellant cam not be sustained.

The 'exceptions are, therefore, overruled and the judgment of the Circuit Court is affirmed.