City St. Imp. Co. v. Babcock, 68 P. 584; granted April 14, 1902.

City St. Imp. Co. v. Reddington, 68 P. 1125; granted April 14, 1902.

Davidson v. Lawson, 68 P. 101; granted April 4, 1902.

De Prosse v. Royal Eagle Distilleries Co., 67 P. 502; granted Feb. 24, 1902.

Miller v. Grunsky, 66 P. 858; granted Dec. 28, 1901.

Neilson v. Provident Sav. Life Assur. Soc., 66 P. 663; granted Dec. 6, 1901.

People v. Lapique, 67 P. 14. On rehearing, 69 P. 226.

Pullen v. Placer County Bank, 66 P. 740; granted Dec. 18, 1901.

Rev. St. § 3286, provides that rules of the supreme court shall be as binding on the court, the parties, and their attorneys as legislative enactments. Sup. Ct. Rule 14 (26 Pac. xii) requires the filing of briefs in appeal or error cases. Rule 15 (Id.) requires the plaintiff in error to file his brief within 60 days of filing his petition in error. Rule 21 (Id. xiii) provides that the defendant in error may have the cause dismissed if the plaintiff fails to file his brief as required by the rules. Rule 20 (Id.) provides that the time for filing briefs may be extended before the expiration of the time allowed, by the consent of the parties, or by the court or a judge in vacation, on good cause shown. A plaintiff in error, acting in reliance on the oral promise to extend the time for filing his brief by the attorney who represented defendant in error in the trial court, but who was not shown to have authority to represent him in the appellate proceedings, and who had not been admitted to practice in the supreme court, failed to file his briefs within the 60 days. Held, that plaintiff's failure to file the briefs would not be excused by reason of such promise, and that he would not be allowed to file his briefs on the hearing of defendant's motion to dismiss, but the latter motion would be sustained.

Error to district court, Natrona county; Chas. W. Bramel, Judge.

Suit between Susie P. Robertson and Chris A. Shorow & Co. From the judgment, Susie P. Robertson brings error. On motion to dismiss. Motion sustained.

Eugene D. Norton, for plaintiff in error. Homer Merrell, for defendants in error.

POTTER, C. J. Defendants in error move that the proceedings in error herein be dismissed for the failure of plaintiff in error to file and serve briefs within the time required by the rules of this court. The petition in error was filed and summons in error issued August 21, 1901. The motion to dismiss was filed December 20, 1901. Notice of the motion, and that it would come on for hearing May 15, 1902, was served upon the attorney for plaintiff in error May 5, 1902. Up to that time no briefs had been filed or served. The motion to dismiss was filed by Homer Merrell, as attorney for the defendants in er69 P.-1

ror, and his name as such attorney was signed to the notice of the motion which was served upon plaintiff's attorney. May 14, 1902, briefs on behalf of plaintiff in error were filed in the office of the clerk of this court, but that was after the notice of the motion previously filed had been served. On the back of one of the briefs so filed appears the following: "Service of the within brief is hereby accepted and admitted, and a copy thereof served on me, this 12th day of May, 1902; the time for serving and filing said brief having been extended by mutual consent for a reasonable time. Dated Casper, Wyoming, May 12th, 1902. Fred D. Hammond, Atty. for Defts. in Error." At the same time that the briefs were filed plaintiff in error filed a motion for leave to file them upon grounds set forth in an affidavit of her counsel attached to the motion. In that affidavit counsel states, in substance, that within the time provided by our rules for filing briefs he entered into a verbal agreement with Fred D. Hammond, attorney for defendants in error, that both would waive the time in which briefs should be filed, the reason therefor being that affiant was ill, and said Hammond was busy with other matters; and the latter then said that it was immaterial to him or his client when the briefs were filed by plaintiff in error, and he would prefer that they be not filed until he heard from his client. That subsequently, in the month of January, 1902, affiant asked Hammond if he had heard from his client, stating that, if he had, affiant would prepare and serve him with a brief; but that said Hammond informed affiant that he need not be in any hurry, but to prepare the brief at his leisure, and he would waive any and all irregularities as to time. Affiant also stated that it had been the custom and practice for Mr. Hammond and himself to verbally stipulate with reference to matters of practice. It was held in Cronkhite v. Bothwell, 3 Wyo. 739, 31 Pac. 400, that the rules of this court are binding upon the court, as well as attorneys and parties litigant. Indeed, that is the literal reading of the statute. The provision is that the rules of this court shall be as binding upon the court and the attorneys thereof, and the parties having business therein, as though the same were enact

ments of the legislature. Rev. St. § 3286. In the case above cited a motion to dismiss the proceedings in error on the ground that plaintiff in error had neglected to file briefs within the time required by the rules was sustained, notwithstanding that the briefs had been filed after the expiration of the time, and the delay had been caused by a misunderstanding of counsel as to the time within which briefs were required to be filed, counsel having erroneously supp sed the limitation to be 90 instead of 60 days. The court said in the opinion that it was not seen how the court could disregard or suspend the rule. It was, however, stated that it may be possible that a statute could not deprive a court of last resort of the power to suspend its rules to prevent injustice. The court did not go so far as to hold directly that the court possessed such power. The statement was rather a carefully guarded expression to the effect that there might arise "cases of unavoidable casualty or overwhelming necessity" where the court would be justified in suspending a rule of its own creation, although it was given the binding effect of a statute. But it was held that, even if such power of suspension existed, the case did not present ground for relief. It is clear that no unavoidable casualty or overwhelming necessity is shown in this case. It does not appear that counsel was prevented from preparing, filing, or serving briefs, or from securing an extension of time in the manner provided by the rules, by any circumstance fairly beyond his control. We think rather that the facts indicate the contrary. The rules as to filing briefs are not adopted alone in the interest and for the convenience of parties, but their object is largely to secure the regular and orderly disposition of business in the court, and to facilitate its reasonable dispatch. Rule 14 (26 Pac. xii) requires the filing of briefs in all causes except as otherwise provided in rule 19, and that each brief shall contain a statement of the points and authorities relied on, and shall refer specifically to the page and portion of the record where the question under discussion arises. Rule 19 (Id. xiii) refers causes originally begun in this court, and provides that in such cases the matter of requiring briefs, and the time of filing the same, shall be fixed by the court or a justice thereof when the case is commenced. Rule 15 (Id. xii) regulates the time for filing briefs in causes brought here on error, and requires the plaintiff in error to file and serve his briefs within 60 days after filing petition in error. Rule 21 (Id. xiii) provides that when the plaintiff in error, or party holding the affirmative, has failed to file and serve his brief as required by the rules, the defendant in error, or party holding the negative, may have the cause dismissed, or may submit it with or without oral argument. By rule 20 (Id.) it is provided that by consent of parties, or for good cause shown, before the expiration of the time allowed, the court, or a justice thereof in vacation, may

extend the time for filing briefs. Thus ample provision seems to have been made for securing an extension of time. Counsel should have followed the rule, and applied regularly for the extension, if one was desired. His only showing is that he relied upon the verbal promise of the attorney who represented the defendants in the district court that the matter of time would be waived. He does not show that said attorney was employed or authorized to appear for the defendants in this court. Indeed, as we know from the comparatively recent admission of that attorney in this court, he had not been admitted to practice here at the time the agreement is said to have been made. On the other hand, a different attorney appears here for the defendants, and his authority is not questioned. In view of the specific provision in the rules for, extensions, and the absence of a showing that counsel was unavoidably prevented from taking advantage thereof, we do not perceive how he can now be permitted to file briefs, and escape the consequences of his default, over the objection of counsel for defendants. Indeed, in Cronkhite v. Bothwell, supra, it was said that the application for extension must be made before the expiration of the time fixed by the rule for filing briefs, and that no provision is made for such extension thereafter, however satisfactory the reasons may be for extending the time. Whatever right a party may have, so far as he is concerned, to waive a strict compliance with the rules in respect to briefs on the part of his adversary, it is clear that this case does not present a case of such waiver. The motion was filed in December last, and the defendants in error, through their attorney, whom we are bound to recognize, are insisting upon the motion, notice of which was given to counsel for plaintiff in error prior to any attempt of the latter to file and serve briefs.

The motion of plaintiff to file briefs at this time must be denied, and the motion to dismiss sustained. The proceedings in error herein will accordingly be dismissed. missed.

CORN and KNIGHT, JJ., concur.

LESLIE v. STATE.

Dis

(10 Wyo. 10)

(Supreme Court of Wyoming. May 28, 1902.) FORGERY-POWER ΤΟ RECEIVE MONEY-INDICTMENT - INSTRUMENT OF ANOTHER CHARACTER OF THE OTHER-PERSON OR CORPORATION.

1. A false writing stating that one is authorized to collect for a certain newspaper is within the statute making it forgery to falsely make "a letter of attorney or other power to receive money."

2. Where an indictment charged the false making of a paper reciting that defendant was authorized to collect for a certain newspaper, the writing not purporting to be made by defendant, and not signed with his name, a contention that the indictment was insufficient, for not showing or stating that the in

strument purported to be that of another, was of no merit.

3. Rev. St. § 5128, provides that any one who shall falsely make any power to receive money, with intent to defraud "any person or persons, body politic or corporate," shall be guilty of forgery. Held, that an indictment which charged the making of a writing stating that defendant was authorized to collect for a certain newspaper (the R. M. News), with intent to defraud one S., was sufficient, without showing whether the instrument purported to be that of a person or corporation; the language of the statute referring to the intent necessary to constitute forgery, and such a showing not being required by general law.

On petition for rehearing. Petition denied. For former opinion, see 65 Pac. 849.

CORN, J. Counsel for plaintiff in error urges with great persistence that the writing in this case is not a "letter of attorney, or other power to receive money," under our statute. He presents only one authority where the instrument was similar in form to the one in this case. It is a Michigan decision, holding that a paper authorizing the bearers to solicit subscriptions for the relief fund of a labor organization was not a "letter of attorney," or "order for money," under the Michigan statute. People v. Smith, 112 Mich. 192, 70 N. W. 466, 67 Am. St. Rep. 392. The difference between an authority to solicit subscriptions and an authority to collect and receive payment of money due for a specified service is so marked as to make the case practically valueless as an authority in this case. Moreover, the term employed in our statute is more comprehensive. An order for money, as explained in the Michigan decision, has a well-understood meaning, and usually contains a request or direction to a third party, who is indebted to the maker of the order, to pay such money to the person named. A power is an authority, whether evidenced by letter of attorney or otherwise. The word is defined in Bouvier's Law Dictionary as "technically an authority by which one person enables another to do something for him"; and in Anderson's Law Dictionary it is defined as "the authority which one person gives another to act for him." Our statute enumerates as one of the subjects of forgery "any letter of attorney or other power to receive money"; the purpose evidently being that if the writing in question was not, in strictness, a letter of attorney, yet, if it was in substance and in fact a written authority to receive money, it should be deemed included within the penalties of the law. It is plain upon the face of the writing, and without additional averments, that this purports to be such an authority, and is within the statute.

In support of his contention that the information does not state an offense, counsel further presents an argument, which, as we understand it, is as follows: The forged instrument must be the instrument of another, and the information must state or show that it is the instrument of another. That, in or

der to do this, the information must show whose instrument it is. That our statute provides that it must appear that it is either the instrument of a person, or body politic or corporate, and hence it is necessary that the information should state or show that it was either the instrument of a person or a corporation, in addition to the other requirements necessary to constitute forgery. That the information does not so state or show. This is the reasoning, as we understand it, and we think it is based upon some misconception of the principle relied upon. It is true that, by all the authorities, the instrument must purport to be the instrument of another. But nothing more is meant than that if it purports to be the instrument of the defendant himself, whatever other criminal liability may be incurred by its execution, his offense is not forgery. A person cannot forge his own name or his own deed or other instrument. If, for instance, one executes an instrument, signing his own name as agent for another, although with intent to defraud, and although he has no authority as agent, yet his offense is not forgery. This arises from the nature of the crime. True, it has been held that, if there are two persons of the same name, one of them may, in some cases, commit forgery by signing his own name, as by indorsing a draft payable to a person of his name, though he knows that he is not the one intended. But this is not an exception to the rule, for it is a forgery of the name of the other person, though the names are identical, and the essence of the offense is that the writing purports to be the instrument of such other person. But as the instrument under consideration is not signed with the name of the defendant, and does not purport to be made by himself, but by another, the principle can have no possible application in this case.

As to the proposition that our statute (sec-· tion 5128) requires that it must appear to be the instrument either of a person or corporation, it is sufficient to say that the statute contains no such requirement. The language referred to occurs in defining the intent necessary to constitute the offense. The information alleges the uttering to have been with intent to defraud one Charles Swanson. This allegation is sufficient, and is sustained by the evidence. But independent of any supposed statutory requirement upon the subject, the instrument, upon its face, clearly purports to be the act of the Rocky Mountain News, a newspaper published in Denver. And we think it is not material, and need not be averred or proved, whether the business concern known as the "Rocky Mountain News" is owned or conducted by an individual, a partnership, a corporation, or an unincorporated company. It has been repeatedly held that, where the writing purports to be the instrument of a company or corporation, it is not material whether such company or corporation has any existence or not.

Com. v. Smith, 6 Serg. & R. 568; State v. Hayden, 15 N. H. 359; People v. Peabody, 25 Wend. 473; People v. Stearns, 21 Wend. 409; Com. v. Carey, 2 Pick. 49; State v. Van Hart, 17 N. J. Law, 327. The forgery of a deed was held to be complete, though there never was any such person as the supposed grantor in existence. Anne Lewis' Case, Fost. 116, 118.

2. The court refused to instruct the jury at the request of the defendant that "the defendant is not required to testify, and the jury have no right to presume anything against him because he has failed to testify." In the brief of counsel upon the original hearing of this case it was said that it is uniformly held by the courts of last resort, in states having similar statutory provisions, that it is error to refuse the instruction, when requested by the defendant, unless covered by another instruction. And in support of this statement three cases only are cited: State v. Evans (Kan. App.) 58 Pac. 240; State v. Magers (Or.) 58 Pac. 892; and State v. Carnagy (Iowa) 76 N. W. 805. The Kansas statute provides that the failure of the defendant to testify "shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place." As only the attorney for the prosecution, and not the court, is forbidden to refer to the matter, it is perhaps a reasonable construction of the statute that the court may properly inform the jury of the law, that it raises no presumption of the defendant's guilt, and of their duty to give it no consideration whatever in making up their verdict. The language of our statute, however, and apparently its policy, is different, for it provides, "nor shall any reference be made to, nor shall any comment be made upon, such neglect or refusal." This language includes as well the court and the counsel for the defense as the attorney for the prosecution. The apparent purpose is that, in cases where the defendant does not desire to testify, the trial shall proceed, as nearly as practicable, as at common law, so far as the testimony of the defendant is concerned; that is, that he may rest upon his plea of not guilty, and the state must prove every element of the crime against him, or else he must be acquitted by force of the presumption of his innocence. And to accomplish this purpose the method selected by the legislature was to forbid any reference to the matter whatever throughout the trial. In the Oregon case referred to, nothing more is decided than that the failure of the court to instruct upon the subject was not error, when the instruction had not been seasonably requested by the defendant, and the Oregon statute differs still more widely from ours. It simply provides that his waiver of the right to testify shall not create any presumption against him,

and it does not forbid either court or counsel to refer to or comment upon such waiver. The Iowa statute forbids the attorney or attorneys for the state to refer to defendant's failure to testify, but does not forbid such reference by the court or counsel for the defense. As these are the only cases referred to in discussing the question in the original brief, and as the statutes of those states are substantially different from ours, counsel's statement that it is uniformly held in states having similar statutory provisions that it is error to refuse the instruction when requested can scarcely he said to be supported by the authorities cited.

But in the brief supporting the application for a rehearing we are referred to cases from Iowa, Texas, Nebraska, Vermont, Washington, Illinois, Maine, Colorado, California, Indiana, Mississippi, Louisiana, New York, Oregon, and Kansas, as supporting the view that, under the provisions of our statute, the instruction should have been given. Of the states named, the statutes of Indiana, Louisiana, and Washington, under which the decisions referred to were rendered, in terms require the court to instruct upon the subject. They are not authority under our statute, which forbids any reference to it. In others of the states named, as Mississippi and Texas, there is nothing in addition to the provision that it shall create no presumption against him, except that it shall not be referred to or commented upon by counsel. And in others, as New York and Vermont, there is simply the provision that his failure to testify shall not create any presumption, or be considered as evidence against him, and reference to or comment upon it is not forbidden. The decisions from these states, therefore, do not involve any construction of the provision of our statute prohibiting any reference to defendant's failure to testify. But in several states there are provisions identical with, or very similar to, our own, and in some of them the statute has been construed. The language of the Nebraska statute is substantially the same as ours. In Metz v. State, 46 Neb. 552, 65 N. W. 190, the supreme court of that state decided that, the defendant not having requested the court to instruct that his neglect to take the witness stand created no presumption against him, the court's omission to do so was not error. In the later case of Ferguson v. State, 52 Neb. 437, 72 N. W. 590, 66 Am. St. Rep. 512, the same court decided that it was not error for the trial court to instruct the jury in regard to defendant's failure to go upon the witness stand, though the instruction was not requested by him. It is apparent that the question presented here was not before the court in either of those cases. In Ohio, where the statute is substantially the same as our own, there has been, so far as we are informed, no decision of the question by the supreme court. But in Sullivan v. State, 9 Ohio Cir. Ct. R. 652, where the trial court had instructed the