William Goodson, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 29 Fla. 511

Taylor, J. : Tho plaintiff in error, William Goodson, was indicted at the Spring term, 1889, of the Circuit Court of Washington county, First Judicial Circuit, as follows, omitting the formal introductory part of the indictment : “That William Goodson, late of the county of Washington aforesaid, in the circuit and State aforesaid, on the 14th day of January, A.

D. 1889, with force and arms at and in the county of Washington, had in his custody and possession a certain false, forged and counterfeit order for the payment of money, the said William Goodson then and there knowing the same to be false, forged and counterfeited. The order was of the tenor following : “ Chipley, Fla., January the 14th, ’89. “Mr. Horn (meaning one R. C.

Horn), will you please, sir, pay $25 to Joseph Goodson for me. “ George Everett, “ Orange Hill.” And the said William Goodson did then and there feloniously utter and publish the same as true, with intent thereby then and there to injure and defraud one R. C. Horn, the said William Goodson then and there knowing the said order to be false, forged and counterfeited, against the form of the statute in such cases made, etc.

The grand jurors of the State of Florida, inquiring in and for the body of the county of Washington, upon their oaths present that one William Goodson, of the county of Washington, on the 14th day of January, 1889, in the county of Washington aforesaid, feloniously, unlawfully, knowingly and designedly did falsely pretend to oneR. C. Horn that the said William Goodson was one Joseph Goodson, and that he had an order to pay money, to-wit: Twenty-five dollars, sent and signed by one George Everett, in writing, and the said order -was in the words and figures as follows : “Chipley, Fla., January the 14th, ’89. “Mr.

Horn (meaningR. C. Horn), will you please, sir, pay $2o to Joseph Goodson for me. “George Everett, “ Orange Hill.” The said R. C. Horn believing the said William Goodson to be Joseph Goodson, and that said order was signed by one George Everett, as represented by William Goodson, for said'twenty-five dollars, by means of which said false pretenses the said William Goodson did then and there- unlawfully, knowingly and. designedly fraudulently obtain from the said R. C. Horn twenty-five dollars, of the value of twenty-five dollars of-the property, money, goods and chattels of the said R. C.

Horn, with intent then and there to cheat and defraud the said R. C. Horn, whereas, in truth and in fact, the said William Goodson was not Joseph Goodson, neither was the order for twenty-five dollars, signed by George Everett, or sent by George Everett, for twenty-five dollars, so the said William Goodson then and there well knew, against the form of the statute in such cases made,” etc.

On this indictment the defendant was tried on the 14th day of November, 1891, the jury finding a general verdict of guilty, without any specification as to which one of the two offenses charged in the indictment their verdict should apply. The defendant’s motion for a new trial being denied, he brings the case here upon writ of error. Before pleading to the indictment, the defendant moved the court to quash it upon the following grounds: “ 1st. The first count in the indictment is vague and indefinite, and charges no offense known to the law. 2d.

The second count in the indictment charges no offense known -to the law, and is vague, indefinite and uncertain.” This motion was overruled, and this ruling is assigned as the first error. While this motion to quash does not point out with any definiteness the particulars wherein the two counts of the indictment are vague, indefinite and uncertain, still we think that the motion should have been sustained, and the indictment quashed.

The first count attempts to charge the defendant with uttering, publishing and passing a false, forged and counterfeit order for money, but does not allege any person, firm, corporation or company to, or upon, whom the same was uttered, published or passed; neither does the indictment excuse this omission with any statement that the person to, or upon, whom it was uttered, published and passed was to the jurors unknown.

The reason for naming in the indictment the person upon whom the forged instrument was passed, consist in the fact that it enters into and becomes a part of the description of the offense, which should be • certain ; not only that the defendant may accurately know who his accusers are, but that, in case of a second prosecution for the same utterance and passing, he may be able accurately to plead autrefois acquit, or convict, as the case- may be.

In 1 Chitty’s Criminal Law, m. p. 211, we find the rule thus expressed: “But it is, in general, necessary to set-forth the names of third persons with sufficient certainty ; and, therefore, it seems to be generally agreed at this day, that an indictment for suffering divers bakers to bake, etc., against the assize, when that offense was indictable, or for distraining divers persons without just cause, or for taking divers sums of money of' divers persons for toll, can not be supported.” The same rule applies in larceny in indictments for which the name of the owner of the stolen goods must be set out as a part of the description or identification of the property alleged to have been stolen, or else its omission must be excused by a state ment in the indictment ‘ ‘ that the owner is to the jurors unknown.” The correctness of this rule was recognized at an early date' in the history of this court, in Groner vs.

State, 6 Fla., 39, and has been adhered to ever since. Sharp vs. State, 28 Fla., 359; 9 South. Rep.; 651. As applied to indictments for uttering a forged instrument, the rule has been recognized and enforced in Buckley vs. State, 2 G. Green (Iowa), 162. In that case the allegation of the indictment as to the utterance and passing of forged and counterfeit coin was exactly like the one under consideration, and the indictment was held bad. In McClellan vs. State, 32 Ark., 609, the indictment in this respect was exactly like the one here, and was held bad.

The second count in this indictment is also fatally defective. It seems to be predicated upon

section 41, p. 364, McClellan’s Digest, that provides as follows: “Whoever falsely personates or represents another, and in such assumed character receives any property intended to be delivered to the party so personated, with intent to convert the same to his own tose, shall be deemed to have committed larceny, and be punished accordingly.” Comment seems hardly necessary.

In this second count there is no allegation that the property alleged to have been fraudulently obtained by the defendant was “intended by the party from whom he got it to be delivered to the party alleged to have been falsely personated ;” neither is there any allegation that the defendant received the property “ with intent to convert the same to his own use.” All of which is fatal to its validity ; and the omission of these essential allegations makes it fall short of charging any offense provided for bylaw. Jones vs. State, 22 Fla., 532. The defendant’s motion to quash should have been granted.

After the overruling of his motion to quash, the defendant entered a plea in abatement, the substance of which is, that there was no evidence upon the records of the court to show that the indictment was ever returned or presented in open court by any grand jury. This plea was overruled, and such ruling is also assigned as error.

The ruling of the court below upon this plea is in the following words: “He (the court) was of the opinion that there was sufficient evidence before the court to sustain the indictment, said entry of the finding and return into court of May the 17th, 1889, being in the following words and figures, namely: ‘ State of Florida vs.

William Goodson — forgery.’ ” We do not think that this was sufficient evidence, or, in fact, any evidence at all of the essential fact that such an indictment, or that any indictment, had been ‘ ‘ presented or returned into open court by a grand jury.” The bare style of a case, accompanied with the technical name of a crime, appearing by itself in the minutes of the court, without any explanation or other statement, cannot be said to prove anything.

Had this styling of the cause been preceded with the customary statement: The grand jury came into court, or into open court, and presented the following indictment, then the evidence would have been sufficient and complete. Turning to the indictment itself, we find the file-marks to be as follows: “Filed May 17th, 1889, W. B. Lassiter, Clerk, by J. R. Wells, D. C.” There is nothing in this to indicate that it was filed or presented in open court.

At the beginning of the record before us we find the following statement made by the same clerk who filled that office at the time this indictment purports to have been found: “Be it remembered, that on the 9th day of November, A. D. 1891, came the State of Florida, the plaintiff in the case aforesaid, and by an indictment filed with the Clerk of the Circuit Court in Ms said office on the 17th day of May, A. D. 1891, called upon the defendant to answer,” etc.

While this preliminary statement by the clerk in the record may' be regarded as affirmative proof that the indictment was filed in his office, as therein asserted, instead of in open court, still it falls far short of affirmatively showing that the paper was presented and filed in open court by the grand jury. This being all there is in the record upon this subject, we do not think that there is sufficient evidence, or any evidence, that this indictment was presented in open court by a grand jury, that being the only recognized manner in which the findings of a grand jury can be authoritatively presented.

Collins vs. State, 13 Fla., 651. Were the rule Otherwise, it would render it possible for a designing or revengeful foreman of a grand jury to ruin any citizen by surreptitiously filing with the clerk in his office an indictment manufactured by himself alone, upon which his fellow-jurors had taken no action. With the light before us, we think the defendant’s plea in abatement should have been sustained.

It is unnecessary,-after what has been said, to notice any other questions raised. ' The judgment of the court below is reversed,' with directions to quash the indictment, and to discharge the defendant from further custody or detention thereunder.