St. Landry democrat., 1878-04-13

law between the otfense OF uttering
forged instrument and the otfeust, o
altering and publishing such lnstru
ment. The first otftnse is complet.
when the party has offered the instru
ment as good, intending it should b,
received us good. The last is not com
pletr until the paper has come into til.
hands OF some person other than til,
| fellon. The common law crime ll;s
| been supplemented by statutes III every
| country creating statutory otftiSes oI
this character. In England The vor,ls
used in the statute to express the pass.
Ing or putting OFT forged Instrument
| to another as ii genuine Instrument, Ol
an attempt to do SO, are, offer, utter
dispose of, or put off," which eunbrac,
every mode of disposing OF attempting
TO dispose OF a forged instrument
! Waternan's Archibold Criminal Prac-
tice and Pieadlngs, SAT, rs. The words
OF our statute are, alter or publish ar
| true" and are not Il mlsprlnt, for they
| occur first in the act OF 1918, aud are rt-
peated in the Revised Statutes of 1856
| and 1870. 1t WAS hence contended by
the defendants counsel that the Legis-
lature had pot made the act charged tu
have been done by him a crlmt--the
charge being, utterlng and publishing
! as true"-and that the crime as laid in
the information, and for which he Was
tried, is not the crimes created by the
statute. The statute used the VOID
utter. The information has after. The
statute uses the dlejunctlve, alter or
publish, thus making TWO crimes. The
Information has the copulatlve utter
and publish, thus describing one otftnse.
The prosecution is based Oh section 1888
Revised Statutes, and tho word utter
Is hot used IN it, while it is employed III
the next section, in relation to the i'll
tent III raising paper securities, aud Is
used III section S35 for creating another
and distinct Otfense, thus" whoever
shall utter or tender in payment" etc.
fhe two words would appear to have
been employed Intentionally and it was
urged, both in the oral and printed al
gument, that the words utter and pub
lish," USED in TIE information as de-
scriptlve Of the crime, do not charge
the crime either OF utter!ng OF publish
lug defined 10y tho statute. In other
words, the statute made it crime to
alter the record, and the defendant was
uot charged With that. The statute
also made it Il crime to publish as true
an altered record and the defendant
WAS not charged with that, but with
uttering and publishing, etc. The act
ut utterlng Is separate and distinct from
either Of the others, aud unless the
phrase utter and PUBLISH means le-
Sally the same rs the single word pub
llsll," and designates the same act, the
Otfense charged III the lnfUrma ton has
no existence. 1t the draughtsman of
The Information had the statute before
aim, he mcst have Intended the word
utter, used by him conjunctlyely with
publish, as expressing only what the
latter word expresses by itself; but le-
gally, that is not true. AS the law writers |
all teach. We did not give this objec. |
tion OF the defendants counsel Il place |
IN our former opinion, because among |
the iwenty-seyen bills of exception. !
and the assignment Of errors additional /
thereto, the two on which we rested our
decision were conclusive of the invali~ !
iity OF the proceedings. |
That the crime should have been
charged to have been committed by the
defendant under color OF his office is to
Dur minds necessity. No one but the
returning officers had any power, mis-
sion OF authority to compile canvass OF
publish tile returnb OF elections. The
by any other persons, and
Is publication, could produce. no legal
AL persons are presumed
% know that the publication of the re-
'ult Of an election by any others than
lie Returning Board was null and void
egaliy, aud hence it was legally i'm
,ossi bic that such publication should
deceive, injure or detraud any one, and
ince the criminal act must not only De
lone with intent to defraud, but must
,e legally capable of ettecting the fraud,
t must be charged to have been done
W virtue of and in the capacity of the
eturning officer. We are asked in the
'rief it four presidents of banks had
appropriated large sums OF money to
induce the returning officers to make
necessary alterations in the figures, aud
fter the alterations had been made
nd the result changed, they had caused
hem to be published, would not they
X punishable ] UnquestionabIy, if We
understand it to be assumed that the
ubicatl0n is made in the name and
nder the authority OF the returning
Ulcers, because there ia another statute
hat applies to those who procure t. be 5
slsely made etc. But that IN within
he Attorney Generals imaginary case !
nd not ours. We supposed a case /
there it is not alleged or charged, and 2
herefore not to be pretended that the :.
ublished document bore the certificate
l. luC ASGul UlUS OulCtISs UuD only tiat
f four bank presidents. 1t is nnde-
liable that such publication would not A
q criminal under our statute for the
easons We then gave, We stated that T
ass to show that it was OF the essence $
f the otfense OF uttering and publish
~ false election returns under the sta
ute that the publishing should be made s
y persons having authority and capa- |
lty under the law to make it, and
lerefore it was essential that the in a
)lmation should contain an averment d
that authority and capacity, and was
.tally defective without it. Its omis= r
op could not DO supplied by the court. Ii
t is matter Of history that the act of t
ne defendant which actually constitu-
I'd his crime was done in his official n
apacity as Il member of the Returning
oard. Why Why was IL tnaI the canvas +
ing and publishing of the vote to be :
la,le by him and his cO-returning Off
7rs became the Object of public anx-
ty, aud when made became the sub
ct OF public condemnation If four ,
rivate persons had done what they
id, and then published as election re- d
lrns whatever might have been in con- :
,rmity to their wishes, would not the
It have been treated with derision, j
nd could it have produced any effect
gally or otherwise 2 Is it not appa- !
Continued ON Fourth Page.]