Curtis v. State , 80 Ga. App. 244 ( 1949 )

1. (a) An indictment which charges in substance that one tendered a counterfeit check to be cashed, with intent to defraud, but fails to allege that any money or other thing of value was received therefor, is insufficient to set out an offense under Code § 26-3911. See Saffold v. State, 11 Ga. App. 329 (75 S.E. 338).

(b) However, the true criterion as to the sufficiency of an indictment is the description of the crime which is charged in it, rather than the description and number of the section under which it is alleged to appear in the Code.

(c) Count 1 of the indictment, in the instant case charges a violation of Code § 26-3910, and is accordingly not subject to general demurrer.

2. Count 2 of the indictment, which charges the possession of a counterfeit check drawn on a bank of this State with intent fraudulently to pass it, sufficiently alleges a violation of Code § 26-3911 when said section is construed in pari materia with Code § 26-3907, as required. See Glover v. Dorsey, 27 Ga. App. 105 (1) (107 S.E. 594); Green v. Russell, 176 Ga. 354 (168 S.E. 65).

DECIDED OCTOBER 11, 1949. REHEARING DENIED OCTOBER 27, 1949. Howard J. Curtis was indicted by the Grand Jury of Fulton County in two counts, count 1 being as follows: " . . with the offense of felony (Sec. 26-3918), for that said accused, in the County of Fulton, State of Georgia, on the 23rd day of April, 1949 with force and arms, did designed by color of the following counterfeit check and writing, to wit:

`Atlanta, Ga. April 23, 1949. No. _____ The Citizens and Southern National Bank Marietta at Broad Pay to the order of R. L. Moore ___________ $39.50 Thirty nine dollars 50// _________________ Dollars R. M. Baskiner Gen. Super.'

Same made in the fictitious name of R. M. Baskiner attempt to obtain of and from Rich's Inc., thirty-nine 50/100 dollars in money of the value of $39.50 by tendering said check to Rich's Inc. to be cashed, — with intent to defraud the said Rich's Inc. contrary to the laws of said State, the good order, peace and dignity thereof."

Count 2 of the indictment is as follows: ". . with the offense of felony (Sec. 26-3911) for that the said accused in the County of Fulton, State of Georgia, on the 23rd day of April, 1949, with force and arms, did knowingly have in his possession, the counterfeit check and writing, a copy of which is set forth and described in count one of this indictment, with intention fraudulently to pass the same on Rich's Inc., said check and writing being made in the fictitious name of R. M. Baskiner and being drawn upon a bank of this State; contrary to the laws of said State, the good order, peace and dignity thereof."

To this indictment the defendant interposed a general demurrer as follows: "Now comes the defendant, Howard Curtis, on and before arraignment and files this demurrer and moves to quash the indictment as to counts 1 and 2 thereof, and for cause says: (1) The indictment shows on its face that the alleged purpose wholly failed and that Rich's Incorporated has not been hurt, defrauded or damaged. (2) The indictment is fatally defective in that no criminal offense is charged or involved for that the same is a private check and not such a note or bill of an incorporated bank whose bills or notes are in circulation. (3) It is not alleged that there is no such person as either R. L. Moore or R. M. Baskiner as set out in said indictment."

The defendant brings error on the judgment overruling this demurrer. 1. (a) The reference to Code § 26-3918 (contained in count 1 of the indictment) indicates that the State was relying upon this Code section as the basis for the crime attempted to be charged in the first count. No violation of this Code section, however, is alleged in the first count of the indictment.

The section provides as follows: "26-3918. (249 P. C.)Obtaining goods, etc., on false writings. Any person who shall designedly, by color of any counterfeit letter or writing, made in any other person's name, or fictitious name, obtain from any person money or other valuable thing, with intent to defraud any person, mercantile house, body corporate, or company of the same, shall be punished by imprisonment and labor in the penitentiary for not less than two nor more than seven years."

The first count of the indictment charges an attempt to obtain the sum of $39.50 from Rich's Inc. with the intent to defraud, but does not charge that anything of value was actually obtained.

In Saffold v. State, 11 Ga. App. 329, 333 (75 S.E. 338), it was held: "Section 249 is intended to cover any case of obtaining goods or money on a false writing. . . An essential element in the offense penalized by section 249 is the obtaining of goods or money, or both; one may violate section 247 without obtaining anything of value."

(b) However, the mere fact that the word "felony" in count 1 of the indictment is followed by the words "Sec. 26-3918" contained in parenthesis immediately thereafter, and apparently signifying that the State considered this count to have been drawn under the designated Code section, would not in fact void the indictment if, as drawn, it does charge an offense under some other Code section. It is the description of the crime, rather than the description and number of the section under which it appears in the Code which furnishes the criterion for determining whether the indictment is good. See Perkins v. State, 29 Ga. App. 278 (2) (115 S.E. 27), where it was held that "even though the solicitor-general, upon the hearing of the demurrer, may have stated to the court that `said indictment was drawn under section 240 of the Penal Code, and was not drawn under section 231,' this is no ground for quashing the indictment if in fact it is no good indictment under section 231 of the Penal Code of 1910. . . It is not what the prosecuting attorney says about it, but it is the description of the crime given in the indictment, the criminal acts alleged therein to have been committed, that characterizes the offense."

(c) Code § 26-3910 provides as follows: "Any person who shall falsely and fraudulently pass, pay or tender in payment, utter or publish any false, forged, counterfeit, or altered note, bill, check, or draft as aforesaid, knowing the same to have been falsely and fraudulently forged, counterfeited, or altered, shall be punished by imprisonment and labor in the penitentiary for not less than two years nor more than 10 years."

The verb "utter," as applied to negotiable instruments, is defined in Black's Law Dictionary as follows: "To utter and publish an instrument, as a counterfeit note, is to declare or assert, directly or indirectly, by words or action, that it is good; uttering it is a declaration that it is good, with an intention or offer to pass it." This is the common legal meaning of the word. In Walker v. State, 127 Ga. 48 (56 S.E. 113), it was said: "Mr. Bishop in his work on Criminal Law (8th ed.) vol. 2 § 605, says: `Since the offense of uttering is an attempt, it is complete when the forged instrument is offered; an acceptance of it is unnecessary. . . To complete the offense, there must be a representation of genuineness, but ordinarily this is implied in the act of uttering.'"

The first ground of the defendant's demurrer is therefore without merit, since the offense of uttering is sufficiently charged, and the second ground is without merit because the instrument is described in the indictment to be a check, which is an instrument covered under this Code section.

As to ground three, the indictment alleges that the check was made in the "fictitious name of R. M. Baskiner" and further that the check was a "counterfeit check," the latter phrase being in the exact words of the Code, and being therefore sufficient as to the denomination of the offense.

In Sessions v. State, 3 Ga. App. 13, 16 (59 S.E. 196), the court held: "If the person purporting to make a counterfeit letter or writing was fictitious, there could never be a genuine original. The word counterfeit, as used in section 247 [and also as used in Code § 26-3910] evidently refers not only to an imitation of a genuine original, but to any paper which purports to be a genuine original, whether made in a real person's name or in a fictitious name."

Count 1 of the indictment was therefore sufficient to charge an offense against the laws of this State, as the same charges a violation of Code § 26-3910.

2. Code § 26-3911 provides that " any person who shall have in his possession any such false, forged, counterfeit, or altered note, bill, draft or check, with intention fraudulently to pass the same, shall be punished by imprisonment," etc. Construing this section in pari materia with Code § 26-3907, as is required (see Glover v. Dorsey, 27 Ga. App. 105 (1), supra), the indictment sufficiently charges a violation of this section (seeGreen v. Russell, 176 Ga. 354, supra, particularly the specially concurring opinion of Mr. Justice Gilbert at page 360) since it alleges that the check in question was drawn upon a bank of this State, and since it is otherwise substantially drawn in the words of Code § 26-3911, the violation of which is sought to be alleged therein. See Kitchens v. State, 78 Ga. App. 795 (52 S.E.2d 564).

Neither of the counts of the indictment is subject to the general demurrer, and the trial court did not err in overruling it.

Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.