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Keller v. Keller.

could afford him any relief, if he had a cause of defense, which he does not pretend he had. No affidavit was filed to show that he had no knowledge of the pendency of the action in time to defend. On the contrary, the record shows that at the first term of court after service was had upon him by publication, and by having a marked copy of the service sent to his address, he entered his special appearance and moved to quash the service, which motion was sustained. The cause was then continued, and service had by publication. Thus, from the very beginning of this action, the appellant, not only had knowledge of its pendency, but had his counsel employed in the court where it was pending to take advantage of any errors that might occur in the proceedings, and debarred himself from the benefits of this section of the statute.

In order to sustain their position here, that the court had no right to dismiss or strike the cause from the docket, appellant's counsel rely upon section 333, R. S. 1881, which enumerates the conditions under which a cause of action may be dismissed without prejudice to the plaintiff. But, in our opinion, this section lends. them no support. It contemplates the existence of a cause of action, which the plaintiff had a right to have determined on its merits, the improper dismissal of which might in some way prejudice the plaintiff. But that is not this case, for the reason already stated, and the court possessed the inherent power to dispose of it in this summary manner, even upon its own motion.

In the divorce proceeding the appellant suffered a default, and permitted the appellee to prevail without a contest. There was a decree in her favor, not only severing the marriage relation, but the court found that she was entitled to $4,500 alimony, and sustained the attachment without objection. He has no defense to offer to

The State v. Williams.

the justice of the judgment he assails, and does not pretend that if a new trial were granted, he would have any plea to interpose. He desires the judgment for divorce to stand, but attacks the attachment proceeding as void for want of jurisdiction of his person, so as to forever bar her of any claim to support. We are persuaded that a court of conscience should not lend its aid to the consummation of such a purpose.

We think the court below did not err in dismissing the bill to review the judgment in alimony and the attachment.

The judgment is, therefore, affirmed.

Filed Oct. 10, 1894.

No. 17,295.

THE STATE OF INDIANA v. WILLIAMS.

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CRIMINAL LAW.-Uttering Forged Instrument. — Indictment. -Guilty Knowledge.-"Knowingly.”—In an indictment for forgery the phrase, "did * * knowingly utter, publish and pass as true and genuine, a certain false, forged and counterfeit promissory note," etc., sufficiently avers the guilty knowledge that the instrument was forged.

From the Huntington Circuit Court.

A. G. Smith, Attorney-General, S. E. Cook, Prosecuting Attorney, and H. C. Underwood, for State.

HOWARD, J.-The appellee was found guilty of uttering a forged and counterfeit promissory note, with intent to cheat and defraud, as charged in the following count of indictment, to wit:

"And the grand jury, as aforesaid, for a second count, on their oaths, further charge and present that one

The State v. Williams.

Philip T. Williams, late of said county, on the day of January, 1892, at said county and State aforesaid, did then and there unlawfully, falsely, fraudulently, and knowingly, utter, publish and pass to one John G. Price, the agent of Bertha Delorme, and thereby to said Bertha Delorme, as true and genuine, a certain false, forged and counterfeit promissory note purporting to have been made and executed by said Philip T. Williams, Daniel G. McClarnon and Levi Arnold, for the payment of money to said Bertha Delorme, which false, forged and counterfeit promissory note is of the following tenor, to wit (setting out the forged note), with intent, etc."

On the return of the verdict the appellee filed a motion in arrest of judgment, for the reason as stated in the motion, that "the second count in the indictment, the one on which the verdict is based and returned, is insufficient, defective, and does not charge a public of fense."

This motion was sustained and the judgment was arrested over the exception and objection of the prosecuting attorney.

Appellee has filed no brief on this appeal, but we learn from the brief of the prosecuting attorney that in the court below counsel for appellee contended that the second count of indictment, on which the conviction was had, "did not allege that the defendant knew the promissory note uttered was false and forged, and on this ground the court arrested judgment."

The second count of the indictment was based upon the concluding clause of section 2354, R. S. 1894 (section 2206, R. S. 1881), relating to the uttering of forged instruments and to the knowledge, which is a necessary element of the crime, and making one guilty who "utters or publishes as true any such instrument or matter knowing the same to be false," etc.

The State v. Williams.

The allegation in the indictment, as we have seen, is that the appellee "did then and there unlawfully, falsely, fraudulently and knowingly utter, publish and pass as true and genuine a certain false, forged and counterfeit promissory note," etc.

If we understand the contention upon which the ruling of the court was based, it is that the word "knowingly" does not sufficiently express the guilty knowledge necessary to charge the crime of uttering a forged instrument; that it is not enough to allege that the appellee knowingly uttered the forged note, but that it is necessary to allege that he uttered and published a note which he knew to be forged.

In section 1806, R. S. 1894 (section 1737, R. S. 1881), it is declared that "words used in the statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used." See State v. Chandler, 96 Ind. 591; Trout v. State, 111 Ind. 499.

In 1 Bish. Crim. Proc., section 504, it is said that "the word 'knowingly,' or 'well knowing,' will supply the place of a positive averment, in an indictment or declaration, that the defendant knew the facts subsequently stated."

In Bouvier's Law Dictionary the same statement is made.

In Black's Law Dictionary it is said that the use of the word "knowingly," in an indictment, is equivalent to an averment that the defendant knew what he was about to do, and with such knowledge proceeded to do the act charged.

In 1 Greenleaf Ev., section 53, the phrase "knowingly uttering a forged document" is used to express the guilty knowledge of the defendant.

In Gillett's Crim. Law, section 449, and in Moore's

The State v. Williams.

and Elliott's Ind. Crim. Law, section 1236, the same expression is used in the forms of indictment given for uttering counterfeit instruments.

The word "knowingly" is used in a like sense in the cases of State v. Atkins, 5 Blackf. 458, and McGinnis v. State, 24 Ind. 500.

In 12 Am. and Eng. Encyc. Law, 522, it is said that "knowingly, in an indictment, is a sufficient averment of knowledge." For a very full discussion of the question, see notes on the same and following pages of the encyclopedia.

The court, in holding the indictment insufficient on motion in arrest, seems to have been governed by an inadvertent ruling in the case of Powers v. State, 87 Ind. 97.

In that case there was an affidavit and information in four counts, two charging forgery and two charging the uttering of the forged instrument. The defendant was found guilty as charged in the affidavit and information, but not under any particular count. All the counts were attacked as insufficient on the appeal to this court. The court found the counts for forgery to be good, and that they alone were sufficient to support the verdict. This was all that was needed to affirm the judgment. The court, however, proceeded to examine the remaining counts, being those for uttering the forged instrument, and held them bad, while affirming the judgment on the first two counts.

In the third and fourth counts it was charged, in substance, "that the appellant unlawfully, feloniously, fraudulently, falsely and knowingly uttered, published and passed as true and genuine, the false, forged and counterfeit order, etc."

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It was contended that by this allegation it was not charged that the appellant uttered, published and passed such order, "knowing the same to be false, forged and

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