Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1909-02-01

And / take 1t that this motion is III
same thing as demurrer. 1t raise
the question Of the sutfjcency OF tn
Indictment.
II observe a distinction between
commission of an offense that can b.
consummated by a party alone, and on
where it is essential that there be som
other party acted upon. or connected
with, in order to make out an offense
And the discussion here, and the au
thorities read, referring to forgery ant
uttering forged Instruments, illustrate:
the proposition that a man can com
nit forgery by himself, and with in.
tent to defraud, and no one else bt
present; but 1t is an utter impossibility
FOR him to utter that instrument, or b
guilty under the statute for uttering 8
/ forged instrument, without some one
being there. that he might be the re-
cipient of the instrument forged
! Whether it is necessary for 1t actually
/ to be passed or not is not essential SC
| far as this question is concerned.
/ so that my view is, that where an
indictment charges a man with the
commission of an offense, that can only
be completed by another party being
present, the indictment must name that
| other party.
Now. there is another objection
| raised to this Indictment, which, 1t
seems to me, is just as fatal to its form
| is, that there is nothing in this indct-
NIX AM ,ny L. AZ re
Tense was committed.
Il know of no circumstances. in con-
nection with cases of this character
that my attention has been called to,
that illustrates more fully the necess-
ity that this statement be in the in
dictment.
THE law presumes that the defend
ant is innocent, and that he knows
nothing of what he is charged with ex-
cept what the indictment tells him. AS
has been we'll stated in argument the
Indictment can not be aided by intend
ment, or by extrinsic evidence.
Here we have 81 man charged with
uttering forged instrument. The state
relies upon a series of acts for the
purpose of proving this person guilty.
1t appears that a portion of it seems to
have transpired at Perry When you
bear in mind the legal presumption
that this man. if he acted at Perry In
this matter. acted innocently until his
guilt in that connection is established
beyond reasonable doubt, he must be
informed by the indictment by telling
how he uttered this forged instrument
and what it Is that the state relies
upon, IN order that he may be able to
meet the offense he is charged with.
There is not a word in this indict-
ment, anywhere, that tells how this
crime charged against this defendant
was committed General conclusions are
drawn, but the acts done are not in
dictated
The way it seems to the court. is
that it would be idle to submit this
case to the jury. because, if the de-
PENDANT should be found guilty the
court, under his oath of office and in
good conscience. would be obliged to
set the verdict aside under the record
as we find it here; and he would be
guilty of the commission of more
serious offense than the defendant is
with if he did not do So
Il make this statement with full
knowledge of the criticism of the courts
on account of these technical rulings,
as they are termed; but they are not
technical rulings of the court They
are simply the enforcement of the law
as it has been in the books ever since
the organization of courts. And IL the
law is not right the power lies within
the people TO change the law The
courts are formed, and judges are
elected, not to make the law, but to
construe and enforce it. And this must
be done by the court at all times, and
under all circumstances, conscientious
ly, no matter what the result may be
Under the circumstances of this
case. think 1t but fair and construe
the statute to authorize it, to hold that
In that it fails to name the party to
whom this instrument was uttered that
Is described in the Indictment; and
in that it fails to detail or describe
the manner adopted in uttering the in
strument.
"The county attorney has been able
to cite no authority that holds that the
Indictment, in the form of the one pre-
sented in this case, is sufficient in
form: while the attorneys for the de- !
PENDANT have cited numerous authori-
ties wherein the courts of last resort .
have held indictments in this form are
fatally defective.
Il order the re-submission of this
case to another grand jury, and the ,
order will be made"