1. INDICTMENT AND INFORMATION — Information — Amendment — "Forgery in the First Degree" — "Forgery in the Second Degree." On a trial for forgery, charged as defined by section 2621, Rev. Laws, providing that any person is guilty of forgery in the first degree who with intent to defraud, forges "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," it is error to permit an amendment which will change the information so as to charge forgery as defined by section 2626, Rev. Laws, which defines forgery in the second degree to be the making of a false certificate of acknowledgment by an officer authorized to take the acknowledgment of a deed or other instrument affecting real property, which by law may be recorded.
2. INDICTMENT AND INFORMATION — Conviction of Included Offense — Different Degrees of Same Offense. Where criminal acts of widely different characteristics are arranged together under a statute as degrees of an offense of the same name, a conviction cannot be had of a crime as included in the offense specifically charged, unless the information in charging a higher degree contains all the essential allegations of the lower degree.
3. INDICTMENT AND INFORMATION — Conviction of Included Offense — Information. Procedure Criminal, sec. 5923, Rev. Laws, providing that "The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged," applies only where the allegations of the information embrace or cover the included offense, or when such included offense is an essential element of the offense charged. (Syllabus by the Court.)
DOYLE, P.J.
In the view we have taken of the disposition necessary to be made of this case it is neither important nor necessary to consider more than one of the many questions presented in the record and briefs.
This record shows that the preliminary complaint before the magistrate and the original information filed in the District Court charged the forgery of the name of J.J. Kelly to a release of a real estate mortgage, and that they were framed under Section 2621 Rev. Laws, First Subd., which provides that:
"Any person who, with intent to defraud, forges, counterfeits or falsely alters:
First: 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."
It further shows that after all the evidence had been introduced on the trial, the state asked leave, and against the defendant's objections, the court permitted the state to amend the information so as to charge the making of a false certificate of acknowledgment as a Notary Public, as defined by Section 2626 Rev. Laws, which provides that:
"If any officer authorized to take the acknowledgment or proof of any conveyance of real property, or of any other instrument which by law may be recorded, knowingly and falsely certifies that any such conveyance or instrument was acknowledged by any party thereto, or was proved by any subscribing witness, when in truth such conveyance or instrument was not acknowledged or proved as certified, he is guilty of forgery in the second degree."
The court in its charge withdrew from the consideration of the jury the offense charged in the original information and submitted only the offense charged in the amendment thereto. The jury found the defendant guilty of forgery in the second degree.
Counsel for the defendant contend "That the amendment permitted, charged a separate, distinct and different offense from that charged originally, and should not have been allowed; that on this charge no preliminary complaint had ever been filed and his conviction was in violation of the following provisions of the bill of rights: "No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination." (Const. Art. 2, Sec. 17), and "In all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, and have a copy thereof." (Const. Art. 2, Sec. 20). It is claimed by counsel for the state that under Section 5923 Rev. Laws, providing that, "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged," that the amendment was not prejudicial to the substantial rights of the defendant and it is argued that "under our statutes (Sec. 1154 and Sec. 1169 Rev. Laws) the certificate of acknowledgment is a necessary essential element of the forgery of the release, that if forgery in the first degree cannot be predicated upon the release without the acknowledgment under our laws, then the false certificate of acknowledgment is a necessary element and the commission of it is necessarily included in the charge in the information."
We think the proposition advanced by counsel for the state is untenable. The rule that the defendant may be convicted of any offense the commission of which is necessarily included in that with which he is charged applies only where the allegations of the information embrace or cover the included offense, or when such included offense is an essential element of the offense charged. To constitute forgery under section 2621 supra, as charged in the original information there must be a false writing or alteration of an instrument purporting to be the act of another by which any right or interest in any real property is, or purports to be, in any way changed or affected, and the instrument as made must be apparently capable of defrauding, and there must be an intent to defraud. To constitute forgery under section 2626 supra, there must be the making of a false certificate of acknowledgment by an officer authorized to take the acknowledgment of a deed or other instrument affecting real estate, which by law may be recorded. The crime under the latter section is a different crime than that under the former. The former is a crime against property while the essence of the latter is the making of a false acknowledgment. Where criminal acts of widely different characteristics are arranged together under a statute as degrees of an offense of the same name, a conviction cannot be had of a crime as included in the offense specifically charged, unless the information in charging a higher degree contains all the essential allegations of the lower degree. It follows that the amendment in effect changed the information so as to substitute another crime for the one originally charged therein.
Under the provision of the constitution already quoted, the defendant in a criminal case has the right to be informed as to the acts which he has committed which constitute his supposed crime; he cannot be charged in the preliminary complaint and in the information with one offense, and upon his trial be convicted of another different offense, and unless the same is included in the offense charged and embraced within the allegations of the information.
Upon a consideration of the record we deem it proper to say that the evidence as we view it was insufficient to support the conviction and the motion to direct an acquittal when the state rested its case should have been sustained.
It may not be improper to remark that the record in this case goes to show that the criminal law is best administered by a close adherence to the rules of procedure found essential and salutary by experience and established by the wisdom of the ages.
For the reasons stated the judgment of the District Court of Blaine county herein is reversed and the cause remanded with direction to dismiss.
FURMAN and ARMSTRONG, JJ., concur.