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I don't know. It was prior to this, but what- ' Q. What is Exhibit Z generally, what is that ever day it was it was the first day I ever instrument? A. That is a complaint. Q. saw him. Q. Where was that? A. That was You caused that to be filed, did you? A. I at Perryman's. Q. Was that before they didn't do anything with it. I suppose it brought a criminal action against him? A. was handed to me, and I signed it. That is No; it seems that was the case it arose out all.” The state offered in evidence complaint of. Q. Do you know how many criminal marked "Exhibit Z,” which is a complaint cases were pending against A. S. Rossiter? filed in the probate court of Blaine county, A. I do not. Q. Do you know anything charging A. S. Rossiter with the crime of about the criminal cases that were pending grand larceny, signed, “A. J. Lowary, by W. against Jesse Rossiter? A. I didn't know S. Wishard, Deputy County Attorney," and there was any criminal cases at all against indorsed upon the back: "I have examined Jesse Rossiter at the time they spoke to us the facts in this case and recommend that about A. S. Rossiter. Q. Do you recollect a warrant do issue. A. J. Lowary, by W. whether or not you were employed by A. S. S. Wishard, Deputy County Attorney." "Q. Rossiter wherein he was charged with grand I call your attention to the back of Exhibit larceny? A. I don't remember. Q. Did that Z, where appears the signature of 'A. J. all happen about the same time? A. I Lowary, by W. S. Wishard, Deputy County think it did. I was to look after his matters. Attorney,' and ask you if you caused that to Q. His son employed you to look after his be placed there. A. Yes, sir; that is my matters with reference to those prosecutions? writing. Q. Is it not a fact that in August, A. Yes, sir. Q. I now hand the stenographer 1906. you and Pete Tyler were attempting a written instrument, and ask that it be and had made arrangements to obtain a deed marked 'State's Exhibit Z.' I now hand you to the John Rossiter and Jesse Rossiter *Exhibit Z,' and ask you to state whether or farm in addition to the $200 which you had not you ever saw that before. A. I have already received? A. No sir; we made no seen it, but I don't remember it. I know it attempt in no way, shape, nor form; and I because I know I signed that down there. didn't know anything about them, and had Q. You signed the name of 'A. J. Lowary, by never been about John or Jesse Rossiter at W. S. Wishard, Deputy County Attorney,' to that time. Q. Was that the transaction that that? A. Yes, sir. At that time I was dep- occurred through the deeds? Did you know uty; that is, I was acting for him for ac- that was to get bond? A. A. S. Rossiter commodation. Q. I now hand the reporter gave a mortgage to secure his own bondsanother written instrument, and ask that it men. Q. This deed that you state you and be identified as 'State's Exhibit X. I now Evans and Tyler deeded over to Eliza Kelly hand the witness 'Exhibit X' and ask you if you understood, then that was for the purto examine that, and state whether or not pose of giving a bond for anybody? A. No, you ever saw that before. A. I don't re- I didn't. I understood iny part was to apmember of it. That is my name at the bot- pear in the case as attorney. Q. I now hand tom, but it is not my writing. Q. You didn't you Exhibit Y. Examine the signature atsign that? A. No, sir. Q. Do you know who tached, and state whether or not that is did? A. No, sir. Q. Were you deputy coun- your signature at the bottom ? A. Yes, sir; ty attorney on that date, June 26, 1906 ? A. that is my writing. Q. Did you write that I suppose I was, if I didn't resign before the letter, or cause it to be written? A. I supday was out. Q. Were you deputy county pose I did; yes, sir. Q. Mr. Wishard, beattorney when you signed that Exhibit Z? fore that deed was made that is in question A. I certainly was, or I would not have in this case from the Rossiters to Elwood filed it. Q. That appears to be filed on the Rossiter, didn't you know or expect that 26th of June, 1906. A. Yes, sir. Q. How such a deed would be made in fact? A. I many times did you resign? A. I resigned did not. Q. Didn't you expect that such a every time he went away and came back. I deed would be made from these parties to only acted in his absence for accommodation. you and to Pete Tyler and to Joe Evans? Q. Did you hand in a written resignation? A. I did not. Q. I now hand the stenog. A. Yes, sir; every time. Q. And, when he rapher a written instrument and ask that would go away, he would appoint you again? it be marked for identification as 'Exhibit A. He didn't appoint me regularly. There W. I now hand you Exbibit w, and ask was only one or two regular appointments, you to examine that written instrument and and, as soon as he would come back, I would especially the signature, and state whether resign. Neither of the body of those com- or not you signed it. A. Yes, sir; that is my plaints are in my handwriting. Q. I didn't writing. Q. You wrote that letter? A. Yes, ask you about that at all. I asked you about sir; but I had forgotten all about it." the signatures. I now hand you for exam- Exhibit Y is as follows: “Law Offices of ination ‘Defendant's Exhibit C,' and ask W. S. Wishard. Watonga, Okla., August 21, you to examine that. That appears to be in 1906. Mr. A. S. Rossiter, Dear Sir: Your case No. 526, does it not? A. Yes, sir. Q. son was in to-day and consulted me in regard Exhibit Z, which I now hand you, which you to matters concerning you which were start. stated you signed at the bottom, appears to ed in the probate court of this place, and I be in case No. 526, does it not? A. Yes, sir. have made a full investigation and have full
knowledge of all matters connected there- | knowledged; that he knew the old man and with, and I can not conceive any reason why these two sons were away, but that Elwood you should remain away from your home in was at home; that at the time he thought this county. There is nothing against you Elwood Rossiter was about 17 years old; at this time. The bond that you gave was that Pete Tyler paid him 75 cents for taking accepted and you have been discharged until the acknowledgments, and then Tyler and the grand jury convenes, which will not be Joe Evans jumped into their buggy and startfor some months, and as there is nothing ed towards town, and Elwood Rossiter and against you that would cause you any un- Gene Perryman pulled out under whip and easiness, I say to you as an attorney, be- lash after them. ing consulted by your son in your behalf, that J. B. Whisler, as a witness for defendant, you are perfectly safe to come home and re was asked: "Q. Do you know what the genmain as long as you see fit. You will not eral reputation of both John and Jesse are be disturbed nor have any trouble in the mat- in that community in which they live for ter that caused you to leave. This I say as truth and veracity? A. Well, I could not say an attorney and know whereof I am speak- as I do." ing, and hope to hear of your being at home Perry Southwick, testifying, gave the same within a very short time. Yours very respectfully, W. S. Wishard.”
Anderson Chamlin, as a witness for the deState's Exhibit W: "Law Offices of W. S. fendant, testified that he knew the general Wishard. Watonga, Okla., Aug. 26, 1906. P. reputation of J. M. and J. C. Rossiter for F. Tyler, Atty., Guthrie, 0. T.-Friend Pete: truth and veracity in the neighborhood in The party, Young Rosseter, was in yesterday, which they lived, and that it is bad. also Perryman; and Rosseters are willing to William Howard's testimony was to the give us the farm in addition to the Two Hun- same effect. Cross-examined, he admitted dred that we have. The deeds are on the that he had a lawsuit with them. way from Jess & wife & John, but we will G. A. Moore testified that the Rossiter not make a single move until we get the name was not very good. farm. Perryman is helping all he can and is F. H. Conklin testified for defendant that doing good work. I will know just as soon the reputation of John Rossiter for truth and as the deeds arrive and will call you by veracity was bad. phone, so we can close our deal with them. E. H. Lookabaugh, as a witness for the The old lady is the one making them come defendant, testified that he was acquainted to time. Everything is 0. K. and all will with John and Jesse Rossiter for about 16 end well I believe. Yours truly, W. S. Wish- years, and that their general reputation for ard.”
truth and veracity was bad. Cross-examined, On redirect examination he stated that he he admitted they were witnesses against him had forgotten all about that letter, and did in a contest case, and that he was a brother not sign the complaint marked "Exhibit X” of I. H. Lookabaugh. on the back, but did not know whose signa Six exhibits were offered showing the handture it is, and did not authorize any one to writing of J. C. Evans for comparison with put his name there, and in putting his sig- the signature of Jesse Rossiter on the al. nature to Exhibit X was only a formal mat- leged forged deed. ter, simply 0. K.'d by him as a matter of H. Brown, R. I. Temple, W. B. Piper, and form.
S. J. Trout, as witnesses for the defendant, Calvin Ford, as a witness for defendant, qualified as experts on handwriting, and, afttestified that in 1906 he was a justice of the er comparing the signature on the deed with peace in Arapahoe township, Blaine county, the said exhibits, stated as their opinion that territory of Oklahoma; that he first saw said signature was not in Evans' handwritthe alleged forged deed on August 31, 1906, ing. at which time it was presented to him by In rebuttal, the state produced E. J. War. Pete Tyler, and he acknowledged it as a jus- ner, who testified that he was the clerk of tice of the peace, but did not see the parties the district court of Blaine county, and as sign the deed, as it was between daylight and such clerk was in possession of the records, dusk, and Pete told him, to go ahead, that files, and proceedings relating to criminal he was in a hurry; that Pete had three per- prosecutions. Handed Defendant's Exhibit sons standing in a row, and that he told A, he was asked if the remainder of the files them to raise their right hands, and he ask- and court records in that case were in his ed them, “Do each of you solemnly swear possession. He answered: “Not all of them. you do this of your own free will and ac- There was one paper missing." Thereupon cord?" that they did not bow their heads, but the witness reads the journal as follows: they all said, “Yes”; that he then signed it, “And now, upon motion, defendant is by the and handed it to Pete Tyler. Cross-exam-court discharged, and, upon application of ined, he said that he knew old man Rossiter the county attorney, it is by the court orand the boys for the past 17 years, and that dered that defendant be held under present John Rossiter, Jesse Rossiter, and his wife, bond to await action of the next grand jury." Julia, were not among the persons who ap- Whereupon page 164 of the indictment record
read, which, omitting the caption and in- follows the language of the statute; or, secdorsements, is as follows: "In the name and ond, that it follows the common-law form. by the authority of the Territory of Okla. That said indictment is not direct and cerhoma, now comes A. J. Lowary, by W. S. tain as regards the offense charged and the Wishard, Dept. County Attorney, in and for venue thereof, and is defective in that it the territory and county aforesaid, and gives does not specify in what the forgery conthe court to know and be informed that one sists sufficient to charge the defendant, and Jesse Rossiter, late of the county of Blaine give notice of the nature of the crime he is and territory of Oklahoma, on the 7th day to defend against; that it does not allege of June in the year of our Lord one thou- the property purported to be conveyed is in sand nine hundred and six at and within existence; that it does not allege that the the said county and territory, did then and Rossiters had title thereto or what interest there unlawfully, willfully, and feloniously they had in the land purported to be conveycommit the crime of perjury, while upon his ed.” It is also contended that: “There is a oath in the justice court before Albert Ross, fatal contradiction in the allegations of the a justice of the peace in and for Liberty indictment, in that the allegation is that the township, in said county, did testify in an instrument purports to be the act of other action of replevin wherein A. S. Rossiter persons, to wit, ‘one John Rossiter, one J. C. was plaintiff and Frank Coleman was de- Rossiter and one Julia Rossiter, when the fendant for one set of double barness of the copy of said instrument following shows that value of $33.00, that the said Jesse Rossiter it purports to be the act of. J. M. Rossiter, then and there swore that said A. S. Rossiter Julia Rossiter, and J. C. Rossiter, and that bought said harness in Cambridge, Ohio, and the same defect arises in charging who was shipped same to Eagle City, 0. T., and that intended to be defrauded, wherein it says, he helped to unbox said harness, when in 'To then and there cheat and defraud the truth and in fact the said Jesse Rossiter well said John Rossiter, and said J. C. Rossiter knew that said harness were not so bought and the said Julia Rossiter,' and that in said and shipped, and that the same were the indictment the words, "diminished' and harness that belong to said Frank Coleman, 'bound,' are used to show the effect that the contrary to the form of the statute in such purported forgery had upon the property of case made and provided, and against the the Rossiters, none of which words are to peace and dignity of the territory of Okla- be found in the statute defining forgery in homa. A. J. Lowary, County Attorney, by the first degree.
Forgery was a W. S. Wishard, Dep. I have examined the misdemeanor at the common law. From the facts in this case and recommend that a earliest times in the history of the criminal warrant do issue. A. J. Lowary, County At- law of England statutes have been passed torney, by W. S. Wishard. Bail fixed at sum upon the subject. As early as 1413 a statute of $500.00."
(1 Hen. V, c. 3) was enacted which recited He had the original complaint as shown in that many persons had been deprived of their the record as Exhibit X, signed "A. J. Low- property by false deeds, wherefore it was ary, by W. S. Wishard, Deputy County At- enacted that the party so grieved shall have torney," bearing the indorsement: "I have his suit in that case, and recover his damexamined the facts in this case and recom- ages; and the party convict shall make fine mend that a warrant do issue. A. J. Low- and ransom at the king's pleasure.' Again, ary, by W. S. Wishard, Deputy County At the English statute of 5 Eliz. c. 14, § 2, torney. Filed June 5th, 1906." With the prohibited the making or forging of any further record showing that in said case, false deed, etc., to the intent that the state "We, the grand jury, hereby find no bill," of freehold or inheritance of any person in filed October 5, 1906.
lands, etc., shall not be molested, troubled, Whereupon the court admonished the jury defeated, recovered, or changed; and the not to consider the evidence introduced by third section fixes a penalty for any person the state from the indictment record as to forge or make any false charter, deed, or shown by the testimony of the clerk of the writing, to the intent that any person shall district court.
have or claim any estate or interest for term
of years of, in, or to any lands. The forgery Wm. O. Woolman, for plaintiff in error. of deeds was made felony, without benefit of Chas. West, Atty Gen., and Smith C. Mat- clergy, by 2 Geo. II, chapter 25, the prece son, Asst. Atty. Gen., for the State.
dents framed under the English statutes, and
especially those under the second section of DOYLE, J. (after stating the facts as 5 Eliz. C. 14, on account of the particular above).  The first question presented for phraseology of the enactments, uniformly set our consideration relates to the sufficiency of out the title of the party whose estate in the the indictment. It is insisted that the trial land was intended to be molested.' 2 Starkie, court, erred in overruling the demurrer. In Crim. Law, 481; 3 Chit. Crim. Law, 1062. support of this contention it is argued that: | 'Legislation in England has in recent times "If the state in this case would justify the rendered unnecessary the mention of the form of indictment, it can do so only by name of the person to be defrauded, permittaking one of two positions: First, that it ting simply a general allegation of fraudu
lent intent.' 24, 25 Vict. c. 98; 2 Bishop's, mislead the jury or leave the defendant New Crim. Proc. par. 425b."
doubtful as to the true import of the charge: Testing this indictment by the rules of the The jurisdiction of the offense in Blaine common law, which prescribes the averments county is sufficiently alleged. The omission necessary to be made in an indictment for of the word "Territory” in alleging the place forgery, it would probably be sufficient. The where the crime was committed could not indictment charges a violation of section deprive the defendant of any substantial 2560, Snyder's Sts., providing that: “Every right. All reference made in the indictment person who, with intent to defraud, forges, prior to the one complained of refers to the counterfeits, or falsely alters: 1st, Any will state of Oklahoma. or codicil of real or personal property, or any  The state was the successor of the terdeed or other instrument being or purport- ritory with reference to this particular ofing to be the act of another, by which any fense, and jurisdiction was conferred on the right or interest in real property is or pur district court of Blaine county, state of Oklaports to be transferred, conveyed or in any homa, to hear and determine all prosecuway changed or affected; * is guilty tions as to offenses committed within the of forgery in the first degree." Under the boundaries of that county prior to statehood. statute, there are three essential elements Proof that the offense was committed within the offense here charged: First, a deed in Blaine county, Okl. T., now comprising apparently valid; second, a fraudulent in- Blaine county, state of Oklahoma, would not tent on the part of the accused; and, third, be a variance from the allegation of the inthat the signatures thereto were forged. We dictment. While this indictment is in the have carefully analyzed the indictment, and, name of the state, it alleges that the acts while it must be conceded that it is subject complained of were “contrary to the form of to criticism for redundance, prolixity, un- the statute in such cases made and providnecessary particularization and superfluous ed,” and this means against the statute in terms, our conclusion is that the numerous force at the time the offense was committed, objections thereto are not well taken. The and continued in force by the enabling act indictment charges every essential element and the Constitution. Faggard v. State, 3 of the offense of forgery in the first degree as Okl. Cr. 166, 104 Pac. 930. defined by the statute and is otherwise suf The object of setting out the forged instruficient.
ment in the indictment is twofold: First, to Technical objections as to defect in mat- enable the court to determine from its tenor ter of form only, and not relating to the sub- whether or not it is a proper subject of forstantial requirements of an indictment, which gery; second, to advise the defendant of do not tend to the prejudice of the substan- | the precise offense charged, and of the partial rights of the defendant upon the merits, ticular instrument upon which the charge is cannot avail under the provisions of our founded. The slight variance in the names Criminal Code. Section 6697, Snyder's Sts., alleged was immaterial, provided that deprovides: “The indictment must be direct fendant was not misled thereby. In this and certain as it regards: (1) The party instance he could not have been misled, becharged. (2) The offense charged. (3) The cause the alleged forged deed is set out in particular circumstances of the offense full, and the identity of the parties therein charged, when they are necessary to consti- named is unquestioned. tute a complete offense." Section 6701, Sny [3, 4] The courts of Oklahoma take judider's Sts., proyides: "When an offense in-cial notice of governmental surveys and subvolves the commission of, or an attempt to divisions of land thereunder, and will take commit a private injury, and is described judicial knowledge of the fact that the land with sufficient certainty in other respects to described in the indictment is in existence. identify the act, an erroneous allegation as It was therefore unnecessary to allege this to the person injured, or- intended to be in- fact. It was also unnecessary to allege title jured, is not material." Section 6705, Sny- thereto. The land which the alleged deed der's Sts., provides: "No indictment is in- purported to convey has an actual potential sufficient, nor can the trial, judgment, or existence, definitely described and located. other proceedings thereon be affected, by rea- The alleged deed on its face purports to son of a defect or imperfection in the matter transfer the title to said land, and was comof form which does not tend to the preju- plete in itself for that purpose. It did not dice of the substantial rights of the defend require the allegation of extrinsic facts to ant upon the merits." Section 6706, Sny- render its deception complete, and it was der's Sts., provides: "Neither presumptions duly filed for public record in the office of of law, nor matters of which judicial notice the register of deeds of Blaine county. The is taken, need be stated in an indictment." right or interest in the property purported The objections made are purely technical. to be transferred, conveyed, or in any way Counsel does not attempt to show the court changed or affected is a mere matter of evithat defendant was in any respect misled as dence bearing upon the intent to defraud. to the transaction he was called upon to de- It is apparent that fraud by means of a false fend against. Can it be said that there is or forged deed may be perpetrated, not only
gers to the title who may be induced to rely , testified to by witnesses for the state was upon the genuineness of the forged deed to not for the court to determine. It is the exadvance money for the purchase or loan clusive province of the jury to weigh the money upon the faith of the apparent legal evidence, and determine the facts. The movalidity of such instrument. Mr. Bishop tion to direct a verdict of acquittal was says: "The intent to defraud any number of properly overruled by the court. victims may be laid in one count which will It is contended that the court erred in givnot thereby be rendered double, and the al- ing to the jury instructions numbered 2, 4, legation will be sustained by proof of it as 5, and 6, respectively. No authorities are to any one of then.” 2 Bish. New Cr. Proc. cited in support of this assignment. Said inpar. 425a. "The intent is presumed to de- structions are as follows: fraud the person whose name is forged with "(2) All persons concerned in the commisout the testimony of witnesses from the for- sion of a felony, whether they directly comgery itself. So is the intent to defraud the mit the act constituting the offense, or aid one to whom the defendant, with knowl- and abet in its commission, though not presedge of the forgery, passed or offered the ent, may be indicted, tried, and punished as forged instrument for value. In aid of this principals." presumption, or as applicable in cases afford "(4) It is not necessary, to constitute the ing no scope for it, other proofs may be ad-offense of forgery of a deed to land, that the duced.” 2 Bish. New Cr. Proc. par. 427a. “It persor or persons charged with such offense is the essence of forgery that it should be intended to defraud or injure any particular with fraudulent intention. It has also been person, or that any particular person was shown that such intention is to be inferred injured or defrauded by the forgery, but it from facts, and that scienter may be shown will be sufficient to constitute the offense it by other forgeries and fraudulent utterings. it is established that the accused, or that he A general intent to defraud is enough. It is and others acting with him, and aiding and not necessary that it should appear that the abetting in the commission of the offense, intent was pointed at any particular person." | with intent to defraud, signed the name or Wharton's Cr. L. (10th Ed.) 8 717. We are names to such deed of the person or persons inclined to think that where the instrument who purport to be the makers thereof, and alleged to have been forged is a deed con- that the name or names were signed withtaining a description conforming to a gov-out authority from such person or persons so ernmental survey and subdivision, and ap- to do, and it further appears that the deed, pears to be complete on its face by which if true and genuine, would have the effect any right or interest in said described real to transfer, convey, or otherwise affect the property is or purports to be transferred, interest of the person or persons whose act conveyed or in any way changed or affected, it purports to be in the land described in all that would be necessary to allege is that such deed. Nor is it essential that the purthe forgery was done with intent to defraud. ported makers of the deed, in fact, had any Where, however, as in this case, the names interest in the land described therein, but of the persons intended to be defrauded are it must appear that the land described did alleged in the indictment in stating the in-exist at the time of the alleged forgery. tent to defraud, it is sufficient to describe "(5) Bearing in mind the foregoing definithe persons intended to be defrauded with tions and carefully applying these instrucreasonable certainty, but it is unnecessary to tions to the evidence, if you believe beyond allege what interest if any they had in the a reasonable doubt that on or about the 31st land purported to be conveyed.
day of August, 1906, in this, Blaine county, Error is assigned upon the action of the then in the territory of Oklahoma, J. C. Evcourt in overruling the motion made by the ans and P. F. Tyler, or J. C. Evans and P. defendant at the close of the state's evidence F. Tyler and others, acting together and to advise the jury to acquit. Under this as aiding and abetting each other, and with signment, it is contended that the evidence intent to defraud J. C. Rossiter, J. M. Rosoffered was insufficient to prove that this siter, and Julia Rossiter, did write and sign, defendant was concerned with the commis- or, with such intent to defraud, did procure sion of the offense charged, and that there is or cause to be written and signed the name a fatal variance between the allegations in of J. C. Rossiter, J. M. Rossiter, or Julia the indictment and the evidence.
Rossiter to the instrument set out and de What we have heretofore said in this scribed in the indictment, and further find opinion in considering the sufficiency of the that said instrument was so signed without indictment is equally applicable to the proof authority so to do, then the said J. C. Evans on the question of variance. The sufficiency and P. F. Tyler are guilty of forgery of said of the evidence showing the commission of instrument, and the offense will be forgery the crime and the guilt of the defendant is in the first degree; and if you so find and not a question for the court, if there is any further believe beyond a reasonable doubt evidence showing these facts. In this case, that the defendant W. S. Wishard, knowing the conclusiveness of the facts and circum- an intent of the said Evans and Tyler to stances as shown by the evidence corroborat- defraud, induced or encouraged them to comed by the admissions of the defendant as mit such offense, or to procure the commis