Opinion
05-03-1899
STATE v. HEGEMAN.
Robert C. White, Atty. Gen., and Peter L. Cooper, Jr., Dep. Atty. Gen., for the State. Alexander M. Daly, John B. Hutton, and Arley B. Magee, for defendant.
Emmet D. C. Hegeman was indicted for forgery, and moved to quash the indictment. Motion granted.
The defendant, Emmet D. C. Hegeman, was indicted at this term of court for forgery, the first count of the indictment alleging: "That Emmet D. C. Hegeman, late of East Dover hundred, in the county aforesaid, on the thirteenth day of March, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms, at the hundred aforesaid, in the county aforesaid, feloniously did forge the hand of one B. P. Sheppard to the indorsement on a certain bill then and there pending before the senate of the state of Delaware, and known as 'Senate Bill No. 62,' entitled 'An act providing a penalty for the violation of section 17 of article 2 of the amended constitution,' he, the said B. F. Sheppard, being then and there the clerk of the house of represeutatives of the state of Delaware, and being then and there duly elected and qualified as such, and by means of the premises did then and there commit the crime of forgery and felony, against the form of the act of the general assembly in such case made and provided, and against the peace and dignity of the state." The second count differed from the first only in that it alleged that the defendant "feloniously did forge and counterfeit" theband of said Sheppard, etc. The third and last count differed from the other two only in that it alleged that the defendant "feloniously did counterfeit" the hand of said Sheppard, etc. Mr. Hutton, of counsel for defendant, moved to quash the indictment on the ground that it was informal, defective, and insufficient.
Argued before LORE, C. J., and SPRUANCE and BOYCE, JJ.
Robert C. White, Atty. Gen., and Peter L. Cooper, Jr., Dep. Atty. Gen., for the State.
Alexander M. Daly, John B. Hutton, and Arley B. Magee, for defendant.
LORE, C. J. The court is asked to quash the indictment in this case for the reason, among others, that the intent to defraud is not averred in the indictment; that it is a material averment, and for that reason the indictment is defective. It is conceded that at common law the intent to defraud is a necessary averment, and must be in the indictment. It is also conceded, and is unquestionably the law, where an indictment is framed under a statute, that, if the intent to defraud is expressed in the statute, such intent must be averred in the indictment. It is claimed on the part of the state that the statute (Rev. Code, p. 949, c. 129) may not so be construed. Section 3 of that statute reads: "If any person with intent to defraud, shall falsely make, forge, or counterfeit any instrument or writing, purporting to be a promissory note, bill of exchange, check, order, obligation, or single bill, for the payment of money, or delivery of goods, or merchandise," etc.; and then in the fifteenth line, on page 950, it continues, "or shall forge, or counterfeit the hand, and seal, or the hand, or seal of any person," etc. The claim of the state, as we understand it, is that the intent to defraud, mentioned in the first part of section 3, is not connected with the last clause; that the clauses are separated by a semicolon, are independent of each other; and therefore it is not necessary to aver the intent to defraud in an indictment under the last clause. An examination of the statute shows that the latter clause is not complete, unless you place before it the words, "If any person with intent to defraud, shall," contained in the first part of section; and the same are necessary before the words, "If any person shall," in the other clause. So that the words, "with intent to defraud," are necessary to connect in each case, and must be averred in an indictment. There is no such averment in any of the three counts of the indictment, and it is for that reason fatally defective.
We regret this conclusion, for the offense as charged, if committed, is one of the gravest that can possibly arise in connection with the legislation of this state. It tends to great un certainty, and unsettles our confidence in all our legislative proceedings, and clothes the statutes which appear to have been passed with a distressing uncertainty. If this crime was committed, it ought to be punished, and that promptly and efficiently. But we may not assume guilt, or try the accused upon a manifestly imperfect indictment, in which the crime is not properly presented to the court. Let the indictment be quashed.