these two sons were away, but that Elwood was at home; that at the time he thought Elwood Rossiter was about 17 years old; that Pete Tyler paid him 75 cents for taking the acknowledgments, and then Tyler and Joe Evans jumped into their buggy and started towards town, and Elwood Rossiter and Gene Perryman pulled out under whip and lash after them.

knowledge of all matters connected there- | knowledged; that he knew the old man and with, and I can not conceive any reason why you should remain away from your home in this county. There is nothing against you at this time. The bond that you gave was accepted and you have been discharged until the grand jury convenes, which will not be for some months, and as there is nothing against you that would cause you any uneasiness, I say to you as an attorney, being consulted by your son in your behalf, that you are perfectly safe to come home and remain as long as you see fit. You will not be disturbed nor have any trouble in the matter that caused you to leave. This I say as an attorney and know whereof I am speaking, and hope to hear of your being at home within a very short time. Yours very respectfully, W. S. Wishard."

State's Exhibit W: "Law Offices of W. S. Wishard. Watonga, Okla., Aug. 26, 1906. P. F. Tyler, Atty., Guthrie, O. T.-Friend Pete: The party, Young Rosseter, was in yesterday, also Perryman; and Rosseters are willing to give us the farm in addition to the Two Hundred that we have. The deeds are on the way from Jess & wife & John, but we will not make a single move until we get the farm. Perryman is helping all he can and is doing good work. I will know just as soon as the deeds arrive and will call you by phone, so we can close our deal with them. The old lady is the one making them come to time. Everything is O. K. and all will end well I believe. Yours truly, W. S. Wishard."

On redirect examination he stated that he had forgotten all about that letter, and did not sign the complaint marked "Exhibit X" on the back, but did not know whose signature it is, and did not authorize any one to put his name there, and in putting his signature to Exhibit X was only a formal matter, simply O. K.'d by him as a matter of form.

J. B. Whisler, as a witness for defendant, was asked: "Q. Do you know what the general reputation of both John and Jesse are in that community in which they live for truth and veracity? A. Well, I could not say as I do."

Perry Southwick, testifying, gave the same

answer.

Anderson Chamlin, as a witness for the defendant, testified that he knew the general reputation of J. M. and J. C. Rossiter for truth and veracity in the neighborhood in which they lived, and that it is bad.

William Howard's testimony was to the same effect. Cross-examined, he admitted that he had a lawsuit with them.

G. A. Moore testified that the Rossiter name was not very good.

F. H. Conklin testified for defendant that the reputation of John Rossiter for truth and veracity was bad.

E. H. Lookabaugh, as a witness for the defendant, testified that he was acquainted with John and Jesse Rossiter for about 16 years, and that their general reputation for truth and veracity was bad. Cross-examined, he admitted they were witnesses against him in a contest case, and that he was a brother of I. H. Lookabaugh.

Six exhibits were offered showing the handwriting of J. C. Evans for comparison with the signature of Jesse Rossiter on the alleged forged deed.

H. Brown, R. I. Temple, W. B. Piper, and S. J. Trout, as witnesses for the defendant, qualified as experts on handwriting, and, after comparing the signature on the deed with the said exhibits, stated as their opinion that said signature was not in Evans' handwriting.

In rebuttal, the state produced E. J. Warner, who testified that he was the clerk of the district court of Blaine county, and as such clerk was in possession of the records, files, and proceedings relating to criminal Handed Defendant's Exhibit

Calvin Ford, as a witness for defendant, testified that in 1906 he was a justice of the peace in Arapahoe township, Blaine county, territory of Oklahoma; that he first saw the alleged forged deed on August 31, 1906, at which time it was presented to him by Pete Tyler, and he acknowledged it as a justice of the peace, but did not see the parties sign the deed, as it was between daylight and dusk, and Pete told him, to go ahead, that he was in a hurry; that Pete had three per-prosecutions. 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 you do this of your own free will and accord?" that they did not bow their heads, but they all said, "Yes"; that he then signed it, and handed it to Pete Tyler. Cross-examined, he said that he knew old man Rossiter and the boys for the past 17 years, and that John Rossiter, Jesse Rossiter, and his wife, Julia, were not among the persons who ap

possession. He answered: "Not all of them. There was one paper missing." Thereupon the witness reads the journal as follows: "And now, upon motion, defendant is by the court discharged, and, upon application of the county attorney, it is by the court ordered that defendant be held under present bond to await action of the next grand jury.” Whereupon page 164 of the indictment record

read, which, omitting the caption and indorsements, is as follows: "In the name and by the authority of the Territory of Oklahoma, now comes A. J. Lowary, by W. S. Wishard, Dept. County Attorney, in and for the territory and county aforesaid, and gives the court to know and be informed that one Jesse Rossiter, late of the county of Blaine and territory of Oklahoma, on the 7th day of June in the year of our Lord one thousand nine hundred and six at and within the said county and territory, did then and there unlawfully, willfully, and feloniously commit the crime of perjury, while upon his oath in the justice court before Albert Ross, a justice of the peace in and for Liberty township, in said county, did testify in an action of replevin wherein A. S. Rossiter was plaintiff and Frank Coleman was defendant for one set of double harness of the value of $33.00, that the said Jesse Rossiter then and there swore that said A. S. Rossiter bought said harness in Cambridge, Ohio, and shipped same to Eagle City, O. T., and that he helped to unbox said harness, when in truth and in fact the said Jesse Rossiter well knew that said harness were not so bought and shipped, and that the same were the harness that belong to said Frank Coleman, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of Oklahoma. A. J. Lowary, County Attorney, by W. S. Wishard, Dep. I have examined the facts in this case and recommend that a warrant do issue. A. J. Lowary, County Attorney, by W. S. Wishard. Bail fixed at sum of $500.00."

follows the language of the statute; or, second, that it follows the common-law form. That said indictment is not direct and certain as regards the offense charged and the venue thereof, and is defective in that it does not specify in what the forgery consists sufficient to charge the defendant, and give notice of the nature of the crime he is to defend against; that it does not allege the property purported to be conveyed is in existence; that it does not allege that the Rossiters had title thereto or what interest they had in the land purported to be conveyed." It is also contended that: "There is a fatal contradiction in the allegations of the indictment, in that the allegation is that the instrument purports to be the act of other persons, to wit, 'one John Rossiter, one J. C. Rossiter and one Julia Rossiter, when the copy of said instrument following shows that it purports to be the act of J. M. Rossiter, Julia Rossiter, and J. C. Rossiter, and that the same defect arises in charging who was intended to be defrauded, wherein it says, "To then and there cheat and defraud the said John Rossiter, and said J. C. Rossiter and the said Julia Rossiter,' and that in said indictment the words, 'diminished' and 'bound,' are used to show the effect that the purported forgery had upon the property of the Rossiters, none of which words are to be found in the statute defining forgery in the first degree. Forgery was a misdemeanor at the common law. From the earliest times in the history of the criminal law of England statutes have been passed upon the subject. As early as 1413 a statute (1 Hen. V, c. 3) was enacted which recited that many persons had been deprived of their property by false deeds, wherefore it was enacted 'that the party so grieved shall have his suit in that case, and recover his damages; and the party convict shall make fine and ransom at the king's pleasure.' Again, the English statute of 5 Eliz. c. 14, § 2, prohibited the making or forging of any false deed, etc., to the intent that the state of freehold or inheritance of any person in lands, etc., shall not be molested, troubled, defeated, recovered, or changed; and the third section fixes a penalty for any person to forge or make any false charter, deed, or writing, to the intent that any person shall have or claim any estate or interest for term of years of, in, or to any lands. The forgery of deeds was made felony, without benefit of clergy, by 2 Geo. II, chapter 25, the prece dents framed under the English statutes, and especially those under the second section of DOYLE, J. (after stating the facts 5 Eliz. c. 14, on account of the particular above). [1] 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

He had the original complaint as shown in the record as Exhibit X, signed "A. J. Lowary, by W. S. Wishard, Deputy County Attorney," bearing the indorsement: "I have examined the facts in this case and recommend that a warrant do issue. A. J. Lowary, by W. S. Wishard, Deputy County Attorney. Filed June 5th, 1906." With the further record showing that in said case, "We, the grand jury, hereby find no bill," filed October 5, 1906.

Whereupon the court admonished the jury not to consider the evidence introduced by the state from the indictment record as shown by the testimony of the clerk of the district court.

Wm. O. Woolman, for plaintiff in error. Chas. West, Atty Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

as

lent intent.' 24, 25 Vict. c. 98; 2 Bishop's, mislead the jury or leave the defendant New Crim. Proc. par. 425b."

Testing this indictment by the rules of the common law, which prescribes the averments necessary to be made in an indictment for forgery, it would probably be sufficient. The indictment charges a violation of section 2560, Snyder's Sts., providing that: "Every person who, with intent to defraud, forges, counterfeits, or falsely alters: 1st, Any will or codicil of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is or purports to be transferred, conveyed or in any way changed or affected; is guilty of forgery in the first degree." Under the statute, there are three essential elements in the offense here charged: First, a deed apparently valid; second, a fraudulent intent on the part of the accused; and, third, that the signatures thereto were forged. We have carefully analyzed the indictment, and, while it must be conceded that it is subject to criticism for redundance, prolixity, unnecessary particularization and superfluous terms, our conclusion is that the numerous objections thereto are not well taken. The indictment charges every essential element of the offense of forgery in the first degree as defined by the statute and is otherwise sufficient.

doubtful as to the true import of the charge: The jurisdiction of the offense in Blaine county is sufficiently alleged. The omission of the word "Territory" in alleging the place where the crime was committed could not deprive the defendant of any substantial right. All reference made in the indictment prior to the one complained of refers to the state of Oklahoma.

[2] The state was the successor of the territory with reference to this particular offense, and jurisdiction was conferred on the district court of Blaine county, state of Oklahoma, to hear and determine all prosecutions as to offenses committed within the boundaries of that county prior to statehood. Proof that the offense was committed within Blaine county, Okl. T., now comprising Blaine county, state of Oklahoma, would not be a variance from the allegation of the indictment. While this indictment is in the name of the state, it alleges that the acts complained of were "contrary to the form of the statute in such cases made and provided," and this means against the statute in force at the time the offense was committed, and continued in force by the enabling act and the Constitution. Faggard v. State, 3 Okl. Cr. 166, 104 Pac. 930.

The object of setting out the forged instrument in the indictment is twofold: First, to enable the court to determine from its tenor whether or not it is a proper subject of forgery; second, to advise the defendant of the precise offense charged, and of the particular instrument upon which the charge is founded. The slight variance in the names alleged was immaterial, provided that defendant was not misled thereby. In this instance he could not have been misled, because the alleged forged deed is set out in full, and the identity of the parties therein named is unquestioned.

Technical objections as to defect in matter of form only, and not relating to the substantial requirements of an indictment, which do not tend to the prejudice of the substantial rights of the defendant upon the merits, cannot avail under the provisions of our Criminal Code. Section 6697, Snyder's Sts., provides: "The indictment must be direct and certain as it regards: (1) The party charged. (2) The offense charged. (3) The particular circumstances of the offense charged, when they are necessary to constitute a complete offense." Section 6701, Snyder's Sts., provides: "When an offense involves the commission of, or an attempt to commit a private injury, and is described | with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or- intended to be injured, is not material." Section 6705, Snyder's Sts., provides: "No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Section 6706, Snyder's Sts., provides: "Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment." | right or interest in the property purported The objections made are purely technical. Counsel does not attempt to show the court that defendant was in any respect misled as to the transaction he was called upon to defend against. Can it be said that there is

[3, 4] The courts of Oklahoma take judicial notice of governmental surveys and subdivisions of land thereunder, and will take judicial knowledge of the fact that the land described in the indictment is in existence. It was therefore unnecessary to allege this fact. It was also unnecessary to allege title thereto. The land which the alleged deed purported to convey has an actual potential existence, definitely described and located. The alleged deed on its face purports to transfer the title to said land, and was complete in itself for that purpose. It did not require the allegation of extrinsic facts to render its deception complete, and it was duly filed for public record in the office of the register of deeds of Blaine county. The

to be transferred, conveyed, or in any way changed or affected is a mere matter of evidence bearing upon the intent to defraud. It is apparent that fraud by means of a false or forged deed may be perpetrated, not only

testified to by witnesses for the state was not for the court to determine. It is the exclusive province of the jury to weigh the evidence, and determine the facts. The motion to direct a verdict of acquittal was properly overruled by the court.

It is contended that the court erred in giving to the jury instructions numbered 2. 4, 5, and 6, respectively. No authorities are cited in support of this assignment. Said instructions are as follows:

"(2) All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, may be indicted, tried, and punished as principals."

gers to the title who may be induced to rely upon the genuineness' of the forged deed to advance money for the purchase or loan money upon the faith of the apparent legal validity of such instrument. Mr. Bishop says: "The intent to defraud any number of victims may be laid in one count which will not thereby be rendered double, and the allegation will be sustained by proof of it as to any one of then." 2 Bish. New Cr. Proc. par. 425a. "The intent is presumed to defraud the person whose name is forged without the testimony of witnesses from the forgery itself. So is the intent to defraud the one to whom the defendant, with knowledge of the forgery, passed or offered the forged instrument for value. In aid of this presumption, or as applicable in cases affording no scope for it, other proofs may be adduced." 2 Bish. New Cr. Proc. par. 427a. "It is the essence of forgery that it should be with fraudulent intention. It has also been shown that such intention is to be inferred from facts, and that scienter may be shown by other forgeries and fraudulent utterings. A general intent to defraud is enough. It is not necessary that it should appear that the intent was pointed at any particular person." Wharton's Cr. L. (10th Ed.) § 717. We are inclined to think that where the instrument alleged to have been forged is a deed containing a description conforming to a gov-out authority from such person or persons so ernmental survey and subdivision, and appears to be complete on its face by which any right or interest in said described real property is or purports to be transferred, conveyed or in any way changed or affected, all that would be necessary to allege is that the forgery was done with intent to defraud. Where, however, as in this case, the names of the persons intended to be defrauded are alleged in the indictment in stating the intent to defraud, it is sufficient to describe the persons intended to be defrauded with reasonable certainty, but it is unnecessary to allege what interest if any they had in the land purported to be conveyed.

Error is assigned upon the action of the court in overruling the motion made by the defendant at the close of the state's evidence to advise the jury to acquit. Under this as signment, it is contended that the evidence offered was insufficient to prove that this defendant was concerned with the commission of the offense charged, and that there is a fatal variance between the allegations in the indictment and the evidence.

[11] What we have heretofore said in this opinion in considering the sufficiency of the indictment is equally applicable to the proof on the question of variance. The sufficiency of the evidence showing the commission of the crime and the guilt of the defendant is not a question for the court, if there is any evidence showing these facts. In this case, the conclusiveness of the facts and circumstances as shown by the evidence corroborated by the admissions of the defendant as

"(4) It is not necessary, to constitute the offense of forgery of a deed to land, that the persor or persons charged with such offense intended to defraud or injure any particular person, or that any particular person was injured or defrauded by the forgery, but it will be sufficient to constitute the offense if it is established that the accused, or that he and others acting with him, and aiding and abetting in the commission of the offense, with intent to defraud, signed the name or names to such deed of the person or persons who purport to be the makers thereof, and that the name or names were signed with

to do, and it further appears that the deed, if true and genuine, would have the effect to transfer, convey, or otherwise affect the interest of the person or persons whose act it purports to be in the land described in such deed. Nor is it essential that the purported makers of the deed, in fact, had any interest in the land described therein, but it must appear that the land described did exist at the time of the alleged forgery.

"(5) Bearing in mind the foregoing definitions and carefully applying these instructions to the evidence, if you believe beyond a reasonable doubt that on or about the 31st day of August, 1906, in this, Blaine county, then in the territory of Oklahoma, J. C. Evans and P. F. Tyler, or J. C. Evans and P. F. Tyler and others, acting together and aiding and abetting each other, and with intent to defraud J. C. Rossiter, J. M. Rossiter, and Julia Rossiter, did write and sign, or, with such intent to defraud, did procure or cause to be written and signed the name of J. C. Rossiter, J. M. Rossiter, or Julia Rossiter to the instrument set out and described in the indictment, and further find that said instrument was so signed without authority so to do, then the said J. C. Evans and P. F. Tyler are guilty of forgery of said instrument, and the offense will be forgery in the first degree; and if you so find and further believe beyond a reasonable doubt that the defendant W. S. Wishard, knowing an intent of the said Evans and Tyler to defraud, induced or encouraged them to commit such offense, or to procure the commis