APPEAL from the Circuit Court of Sangamon County; the Hon.
GEORGE P. COUTRAKON, Judge, presiding.
MR. PRESIDING JUSTICE SMITH DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for forgery and a violation of the Illinois Business Corporation Act section 439.41 (Ill. Rev. Stat. 1971, ch. 32, par. 119), pledging fraudulent stock. Following conviction on both charges, probation was denied, and he was sentenced to 1 to 5 years, though, the court failed to specify on which conviction the sentence rested. On appeal, he asserts that the indictment is void, failure of proof as to specific intent, that the instrument involved was in fact forged, prejudicial argument, and severity of the sentence.
The forgery count read that defendant "with intent to defraud, knowingly delivered * * * a forged document apparently capable of defrauding another, to-wit: a stock certificate", copy attached, defendant "knowing said stock certificate to have been thus made." Invalidity is premised on the failure of this count to specify how the certificate was a `forged document apparently capable of defrauding another". Defendant argues that the indictment should point out, in the words of the statute, whether "it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; * * *." Ill. Rev. Stat. 1971, ch. 38, par. 17-3 (a) (1).
True, the subject matter of forgery must be a document altered or made and capable apparently of defrauding another "in such a manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority." The bill of particulars identified the certificate as a forgery in that it "purports to have been made by authority of `the said Corporation', which did not give such authority." In other words, defendant argues that the indictment failed to answer the question as to what type of forged document was involved and thus, left him in the dark and "prevented adequate preparation of his defense because he was not sufficiently notified of the charge against him."
• 1, 2 We view the alternatives descriptive of forgery as nondefinitional insofar as the definition of forgery is concerned. Such alternatives are by way of example exemplative. Forgery, as we know, is a false making or alteration of an instrument which is apparently capable of defrauding another and made or altered with an intent to defraud, or, the issuance or delivery of a forged document "knowing it to have been thus made or altered" being subsection (2) of the forgery statute. The general rule is that an indictment which charges an offense in the language of the statute is deemed sufficient if such language particularizes the offense so that the accused is apprised of what the charge it. Defendant cites People v. Leach, 3 Ill. App.3d 389, 279 N.E.2d 450 where the charge was "mob action". But that case is clearly distinguishable from this, for the charge there failed to take any account of the mental state required for there to be a crime. In Leach it is pointed out correctly that where a statute does not describe the acts which constitute the crime or by its generality it may embrace conduct which the statute does not cover, greater specificity is required. But the forgery statute does define particularize the elements of forgery thus a charge which uses the same language is valid. Here, the charge was that defendant delivered a forged document with intent to defraud whether it was made by another or with different provisions, or by the one who did not give such authority, are simply aspects of what might compromise a forged document. These aspects need not be set out in the charge. This being so, the count for forgery was sufficient.
The second count was based on the Illinois Business Corporation Act which makes it a crime to "knowingly and designedly pledge * * * any false, fraudulent or simulated certificate * * * of any share or shares * * *". The charge here was that defendant "knowingly and designedly, and with intent to defraud another person, * * * pledged a false, fraudulent and simulated certificate of ownership of shares in capital stock of a corporation * * *", a copy being attached. Defendant objected to the conjunctive "and" in the indictment since the statute uses the disjunctive "or", and again, argues that the indictment fails to describe in what manner this certificate was false, fraudulent and/or simulated.
• 3 Taking the latter argument first, the reasons for holding the forgery count valid are likewise applicable here. Again, Leach is cited for the argument that since the statute does not "particularize", an indictment in the language of the statute would therefore be void. But, to us the words "false, fraudulent [and/or] simulated" are particularization enough so that this charge, being in the language of the statute, is sufficient. Because "simulated" was made conjunctive with "fraudulent", instead of reading "false, fraudulent or simulated" is not an argument addressed to any infirmity we know of in framing a charge. Indeed, the older cases looked askance at the use of the disjunctive "or", characterizing such usage duplicitous meaning, if we read them aright, that there should be two counts instead of one. At this juncture we are reminded of Mr. Justice Holmes' observations in Paraiso v. United States, 207 U.S. 368, 52 L.Ed. 249, 28 S.Ct. 127:
"The bill of rights * * * giving the accused the right to demand the nature and cause of the accusation against him, does not fasten forever upon those islands the inability of the 17th century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert."
Defendant argues that there is no proof of a specific intent to defraud the person to whom the certificate was pledged. The certificate, as it turns out, was worthless being a duplicate of another certificate of the corporation bearing the same number. The imposture was discovered when the certificates were being exchanged for the stock of another corporation. This simple fact, standing alone, raises an inference of an intent to defraud. We agree with defendant, that specific intent cannot "be presumed" but it can certainly be inferred or to put it another way an act can imply a specific intent. It would be an oddity in most cases for there to be direct evidence as proof of intent. Rather, triers of the fact of necessity must look to the surrounding circumstances and if the inferences are reasonable, as to its existence, triers of the fact can so find, and reviewing courts will not question the drawing of such inference. Defendant argued at length that the State's case was not credible, but, as always, we must reply that such was not for us but for the jury. It is no argument for reversal to assert that if defendant's remembrance of things past was correct then he should have been acquitted, because these same triers of the fact can view his testimony as incredible and the State's as credible. Of course they need not do so, but that is what juries are for. The argument that this was a mere "over-issuance" and not a deliberate forgery purporting to have been made on the authority of one who did not give such authority while supported by the evidence defendant's testimony contrariwise it is not supported by the evidence of the State. Coupled with this supposititious certificate were others, used by defendant at other times and places. These occurrences are circumstances indeed from which a jury could infer specific intent. In this context, it would not be amiss to note an admission of defendant himself in regard to this certificate. One of the officers for the bank who was acting as transfer agent accosted defendant with regard to whether he had means of redeeming this certificate, and defendant replied that he had done "this" because "he needed the money". The fact that defendant denies such conversation, again, is for a jury to believe or not to believe.
• 4 Defendant asserts that the certificate in question was not a forged document, saying, "Falsely making a document is different from making a false document." In other words, if the instrument is genuine, issued without authority, there is no forgery. This argument might have some force if People v. Kramer, 352 Ill. 304, 185 N.E. 590, still held as a precedent. But it does not. Kramer was reexamined in People v. Kubanek, 370 Ill. 646, 19 N.E.2d 573, and quietly put to rest in People v. Mau, 377 Ill. 199, 36 N.E.2d 235:
"We reexamined the case of People v. Kramer, 352 Ill. 304, 185 N.E. 590, and overruled that decision because Kramer was acting in a ministerial capacity as agent of Marion county, Illinois, of which he was the county clerk, and exceeded his authority by drawing a county order payable to himself for a debt that did not exist. The Kramer decision contained no discussion of the fact that Kramer exceeded his authority with intent to defraud his county." (377 Ill. at 205-206.)
Accordingly, the fact that defendant was president of the corporation authorized to sign the certificate in question, and assuming the signature of the secretary to be genuine defendant possessed blank certificates signed by the secretary does not negate a basis for a conviction for forgery or pledging a false, fraudulent and simulated certificate if such was done without authority being given here, by the corporation. Books and records of the corporation were in evidence, and it was apparent that the certificate which was the subject matter of the indictment was issued without authority of the corporation.
Next, defendant says that the argument was prejudicial. It is hardly that, even if we assume that it was not supported by the evidence which, in our opinion, is not the case. The stock certificate is dated 1958. In argument, it was suggested that when defendant needed money, "happened to be in a pinch * * * he had these blank certificates" and used them for collateral, and:
"Well, I suggest to you what happened ladies and gentlemen, he didn't have the books and records after 1959, but he had these blank certificates and the reason that this came out on the seventh of December was that he didn't remember the facts exactly when the various things ...