Opinion
No. 5722.
April 30, 1931.
APPLICATION of Viola Lowe for a Writ of Habeas Corpus. Writ quashed and petitioner remanded.
Turner K. Hackman, for Petitioner.
As set out in subdivision (d) in the petition for the writ of habeas corpus, an examination of the complaint will show that the writing upon which the complaint is based does not purport to be drawn on behalf of any named incorporated school district in its corporate capacity, and for that reason it is void, a nudum pactum.
" 'When the writing is invalid on its face, it cannot be the subject of forgery, because it has no legal tendency to effect a fraud.' " ( State v. Evans, 15 Mont. 539, 48 Am. St. 701, 39 Pac. 850, 28 L.R.A. 127.)
No forgery where instrument is void. ( Arnold v. Cost, 3 Gill J. (Md.) 219, 22 Am. Dec. 302, 315; State v. Cordray, 200 Mo. 29, 9 Ann. Cas. 1110, 98 S.W. 1; Roode v. State, 5 Neb. 174, 25 Am. Rep. 475, 477.)
The instrument, though falsely made, has no legal validity, as shown upon its face. To be valid it must be shown upon its face that it purports to be drawn under the corporate name of a school district, to wit: "Common School District No. ___ in ___ County, State of Idaho," or other corporate name, as set forth in Sess. Laws 1921, chap. 215, p. 429.
The information fails to specify any name upon its face, or even attempt to allege any name upon its face, to be a forgery; therefore fails to state a cause of action. ( State v. Burtenshaw, 25 Idaho 607, 138 P. 1105; Hobbs v. State, 75 Ala. 1; State v. Pierce, 8 Iowa, 231; Roode v. State, supra; Anderson v. State, 20 Tex. App. 595.)
Fred J. Babcock, Attorney General, Maurice H. Greene and Z. Reed Millar, Assistant Attorneys General, for Respondent.
An information is sufficient to support a judgment attacked by habeas corpus even though it would have been held insufficient on demurrer, motion in arrest of judgment or on appeal. ( In re Bottjer, 45 Idaho 168, 260 P. 1095; In re Dawson, 20 Idaho 178, 117 P. 696, 35 L.R.A., N.S., 1146; Ex parte Solway, 82 Mont. 89, 265 P. 21; 12 R. C. L. 1202; note, 57 A.L.R. 85.)
It is not necessary that the instrument shall have any real validity or legal efficacy. It is sufficient if it has such an apparent legal efficacy that it may deceive and defraud. (1 Brill, Cyc. Crim. Law, 969; State v. Hazzard, 168 Ind. 163, 80 N.E. 149; People v. Munroe, 100 Cal. 664, 38 Am. St. 323, 35 Pac. 326, 24 L.R.A. 33; Saucier v. State, 102 Miss. 647, Ann. Cas. 1915A, 1044, 59 So. 858; State v. Hilton, 35 Kan. 338, 11 Pac. 164; People v. Baker, 100 Cal. 188, 38 Am. St. 276, 34 Pac. 649; Carrell v. State, 84 Tex. Cr. 554, 209 S.W. 158, 159; People v. McGlade, 139 Cal. 66, 72 P. 600; McDonald v. State, 12 Okl. Cr. 144, 152 P. 610.)
Petitioner, convicted of forgery, unsuccessfully appealed, and now in the penitentiary, contends the information did not state a cause of action, for three reasons.
An information may be sufficient to support a judgment attacked by habeas corpus, even though it might have been held insufficient on demurrer, motion in arrest of judgment, or on appeal. ( In re Dawson, 20 Idaho 178, 190, 117 P. 696, 35 L.R.A., N.S., 1146; In re Bottjer, 45 Idaho 168, 260 P. 1095; Ex parte Solway, 82 Mont. 89, 265 P. 21; 12 R. C. L. 1202.)
The information charged the forgery of in order drawn by the chairman and clerk of a school district, and countersigned by the county superintendent, to the county auditor, for the issuance of a warrant chargeable against the funds of the said school district, under C. S., secs. 911, 913 and 914. These sections denominate such instrument an "order," and clearly its effect, if valid, would result in the payment of money, which brings it within the purview of C. S., sec. 8408. ( People v. Bibby, 91 Cal. 470, 27 P. 781.)
Petitioner further attacks the information because it designates the school district as No. 39 in Twin Falls County, instead of, as she contends is the correct name, "Common School District" No. 39, etc. There is nothing on its face to show that the information was not correct, or sufficiently definite to apprise petitioner what school district was intended. ( People v. Dougherty, 246 Ill. 458, 92 N.E. 929; Carrell v. State, 84 Tex. Cr. 554, 209 S.W. 159.)
Where the instrument alleged to be forged is copied in haec verba, in the information, and it purports on its face to be valid, regular, subject to forgery, indicating the party who would be defrauded thereby, indicating the relationship of parties, whose names appear in the instrument, and any organizations thereby designated, to the transaction, as appears from the instrument herein, no descriptive or extraneous allegations are necessary. ( People v. McGlade, 139 Cal. 66, 72 P. 600; People v. Johnson, 7 Cal.App. 127, 93 Pac. 1042; Lacy v. State, 33 Okl. 161, 242 P. 296; State v. Smith, 32 N.M. 191, 252 P. 1003; State v. Fay, 80 Minn. 251, 83 N.W. 158; Reeves v. State, 51 Tex. Cr. 604, 103 S.W. 894; McLean v. State, 3 Ga. App. 660, 60 S.E. 332; MacGuire v. State, 91 Miss. 151, 44 So. 802; State v. Barber, 105 Miss. 390, 62 So. 361; People v. Hoyt, 145 App. Div. 695, 130 N.Y. Supp. 505.)
Writ quashed and the petitioner is remanded to the custody of the warden of the penitentiary.
Lee, C.J., and Varian and McNaughton, JJ., concur.
Budge, J., did not participate.