[2]*2Opinion op the Court by
Judge Turner
Eeversing.
Appellant was indicted in the Payette Circuit Court charged with uttering á forged check, and upon his trial was found' guilty and sentenced to imprisonment for not less than eight nor more than nine years, and he has appealed.
The evidence for the Commonwealth showed that on Saturday night, the 12th of September, 1914, he went into the store of W. A. Green on Short street in Lexington, and was looking at, with the view of purchasing, a brass bed which was being exhibited in a show window; that he priced it, and told Green that he did not have the money but he would go down the street and find his partner named Haskell who owed him some money; that he came back and brought a check, purporting to have been signed by H. L, Haskell, for $68.50, and asked if Green would cash it; he stated that he and Haskell were partners in a dairy business near "Winchester on the Mount Sterling turnpike, and that he wanted the bed for his wife. Green told him that he did • not have the money to cash the check, but, on pretext of . seeing if he could get the money elsewhere, he left the store with the check and called up the police authorities. •'Appellant indorsed the check in the store in the pres:ence of Green, and after Green’s return to the store a ■policeman in uniform came in, and thereafter appellant stated to Green that he would not worry him about the check but would make a deposit of $5.00 on the purchase price of the bed, and would be back in town in two oí "three days to see further about it and arrange for its transportation. He did make the deposit of $5.00 and .received a receipt therefor. "When he started Out of the .store the policeman stopped him and asked to be permitted to see the check, which was shown to him by appellant, whereupon he requested appellánt to go with him to the police headquarters, where he was further questioned and finally committed to jail.
It further appears that about the same time appellant, while negotiating with another firm in Lexington for the purchase of some wire fencing, had this check .in his possession, but did not ask that it be cashed; on the contrary said he would go to the bank and have it cashed and come back and pay for the fencing.
It was further shown by officers of the bank upon which the check was drawn that they knew no such pian [3]*3as H. L. Haskell, and that lie did not have and had never had an account at that hank, and that no such man was known to them; and it was likewise shown by testimony of a detective that no such man as H. L. Haskell was known around Lexington.
It is shown by three or four witnesses that, after the evidence was heard in the examining court, appellant, upon being asked by the court if he had anything to say, got up and made a statement, hut the exact nature of that statement is not clear under the evidence. One witness said that he made the statement that it was a forged check, and he thought that was the best way out of it, but later in his testimony the same witness stated that he stuck out to the very last that a man by the name of Haskell, living between Winchester and Mount Sterling, had given him the check.
Another witness, who was present at the police court trial, says that appellant stated that he had come there to the. races and got broke, and wanted to raise some money, but at no time stated that the check was forged.
Another witness says that he stated that he had been playing the races, was in tough luck, and tried to put the check through, but he did not say, in terms, that the check was forged, and never stated that Haskell did no„t give him the check.
The witness Green, who was present at the police ■court trial, says that appellant in his statement there said he had got in the wrong town to do that kind of business and admitted that the check was not good, but never said it was a forged check.
Another witness stated that he only said that he had gotten into the wrong place.
This was the whole of the testimony in chief for the Commonwealth, and the defendant asked the court for a peremptory instruction to find him not guilty, which, the court declined to give.
The appellant testified for himself that he was a resident of the State of Washington; that he had come to Lexington a few days before the Fall race meeting for the purpose of attending the races, and that a few weeks; before he had left his home in Washington he had a letter from his brother who was then living near Winchester at some point between Winchester and Mount Sterling; that a day or two after reaching Lexington he went from there up into Clark County, between Win- [4]*4■ ehester and Mount Sterling, seeking his brother, and was informed there that his brother some three or four ■weeks previously had left there with his family and gone to Arkansas; that while in search of his brother he met a stranger, who gave his name as H. L. Haskell, and Haskell, upon being informed by appellant that Timothy Bates (appellant’s brother) was a brother of his, informed him that he owed Timothy $68.50 for some Kino pigeons he had gotten from him, and, upon appellant’s promise to see that the money was paid to his brother, gave him the check for $68.50, telling him at the' time to hold it for a few days, that being the 8th of September ; that he had never seen Haskell before that day and had never seen him since; that Haskell told him he lived between Winchester and Mount Sterling on a pike the name of which he had forgotten, and was engaged with another man in the creamery business. He further testified that he had been confined in jail at all times since his arrest, but had written two letters addressed to Haskell, one to Mt. Sterling, and one to Winchester, but had received no answer to either of them.
Neither party introduced any evidence to show whether there was or not, in the vicinity indicated, such a man as H. L. Haskell, although the prosecuting witness Green testified on his main examination that appellant said he and Haskell were partners in the dairy business near Winchester on the Mount Sterling turnpike.
Manifestly, if there was such a man in that vicinity and he actually signed the check, appellant was not guilty; while on the other hand, if there was no such man there and the name was purely fictitious, the fact that appellant was in possession of a check purporting to have been signed by such fictitious person would furnish strong presumptive evidence that the check was forged.
The court will take judicial knowledge of the fact that the point indicated as the residence of Haskell is twenty or more miles from, the City of Lexington, and the evidence .presented by the Commonwealth to the effect that no such person had and had never had.an account at the bank upon which the check was drawn, and that no such man was known in or around Lexington, is not conclusive,, or even convincing, that no such man lived at the póint indicated twenty or more miles away.
Two questions are presented for decision; (1) Was there sufficient evidence that the check attempted to be [5]*5.passed by appellant was a forged instrument? and (2) Was appellant entitled to an instruction under the provisions of Section 240 of the Criminal Code?
It is conceded that there is no direct evidence that the check was forged; but it is argued that the circumstances shown in evidence justified the submission of that question to the jury.
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[2]*2Opinion op the Court by
Judge Turner
Eeversing.
Appellant was indicted in the Payette Circuit Court charged with uttering á forged check, and upon his trial was found' guilty and sentenced to imprisonment for not less than eight nor more than nine years, and he has appealed.
The evidence for the Commonwealth showed that on Saturday night, the 12th of September, 1914, he went into the store of W. A. Green on Short street in Lexington, and was looking at, with the view of purchasing, a brass bed which was being exhibited in a show window; that he priced it, and told Green that he did not have the money but he would go down the street and find his partner named Haskell who owed him some money; that he came back and brought a check, purporting to have been signed by H. L, Haskell, for $68.50, and asked if Green would cash it; he stated that he and Haskell were partners in a dairy business near "Winchester on the Mount Sterling turnpike, and that he wanted the bed for his wife. Green told him that he did • not have the money to cash the check, but, on pretext of . seeing if he could get the money elsewhere, he left the store with the check and called up the police authorities. •'Appellant indorsed the check in the store in the pres:ence of Green, and after Green’s return to the store a ■policeman in uniform came in, and thereafter appellant stated to Green that he would not worry him about the check but would make a deposit of $5.00 on the purchase price of the bed, and would be back in town in two oí "three days to see further about it and arrange for its transportation. He did make the deposit of $5.00 and .received a receipt therefor. "When he started Out of the .store the policeman stopped him and asked to be permitted to see the check, which was shown to him by appellant, whereupon he requested appellánt to go with him to the police headquarters, where he was further questioned and finally committed to jail.
It further appears that about the same time appellant, while negotiating with another firm in Lexington for the purchase of some wire fencing, had this check .in his possession, but did not ask that it be cashed; on the contrary said he would go to the bank and have it cashed and come back and pay for the fencing.
It was further shown by officers of the bank upon which the check was drawn that they knew no such pian [3]*3as H. L. Haskell, and that lie did not have and had never had an account at that hank, and that no such man was known to them; and it was likewise shown by testimony of a detective that no such man as H. L. Haskell was known around Lexington.
It is shown by three or four witnesses that, after the evidence was heard in the examining court, appellant, upon being asked by the court if he had anything to say, got up and made a statement, hut the exact nature of that statement is not clear under the evidence. One witness said that he made the statement that it was a forged check, and he thought that was the best way out of it, but later in his testimony the same witness stated that he stuck out to the very last that a man by the name of Haskell, living between Winchester and Mount Sterling, had given him the check.
Another witness, who was present at the police court trial, says that appellant stated that he had come there to the. races and got broke, and wanted to raise some money, but at no time stated that the check was forged.
Another witness says that he stated that he had been playing the races, was in tough luck, and tried to put the check through, but he did not say, in terms, that the check was forged, and never stated that Haskell did no„t give him the check.
The witness Green, who was present at the police ■court trial, says that appellant in his statement there said he had got in the wrong town to do that kind of business and admitted that the check was not good, but never said it was a forged check.
Another witness stated that he only said that he had gotten into the wrong place.
This was the whole of the testimony in chief for the Commonwealth, and the defendant asked the court for a peremptory instruction to find him not guilty, which, the court declined to give.
The appellant testified for himself that he was a resident of the State of Washington; that he had come to Lexington a few days before the Fall race meeting for the purpose of attending the races, and that a few weeks; before he had left his home in Washington he had a letter from his brother who was then living near Winchester at some point between Winchester and Mount Sterling; that a day or two after reaching Lexington he went from there up into Clark County, between Win- [4]*4■ ehester and Mount Sterling, seeking his brother, and was informed there that his brother some three or four ■weeks previously had left there with his family and gone to Arkansas; that while in search of his brother he met a stranger, who gave his name as H. L. Haskell, and Haskell, upon being informed by appellant that Timothy Bates (appellant’s brother) was a brother of his, informed him that he owed Timothy $68.50 for some Kino pigeons he had gotten from him, and, upon appellant’s promise to see that the money was paid to his brother, gave him the check for $68.50, telling him at the' time to hold it for a few days, that being the 8th of September ; that he had never seen Haskell before that day and had never seen him since; that Haskell told him he lived between Winchester and Mount Sterling on a pike the name of which he had forgotten, and was engaged with another man in the creamery business. He further testified that he had been confined in jail at all times since his arrest, but had written two letters addressed to Haskell, one to Mt. Sterling, and one to Winchester, but had received no answer to either of them.
Neither party introduced any evidence to show whether there was or not, in the vicinity indicated, such a man as H. L. Haskell, although the prosecuting witness Green testified on his main examination that appellant said he and Haskell were partners in the dairy business near Winchester on the Mount Sterling turnpike.
Manifestly, if there was such a man in that vicinity and he actually signed the check, appellant was not guilty; while on the other hand, if there was no such man there and the name was purely fictitious, the fact that appellant was in possession of a check purporting to have been signed by such fictitious person would furnish strong presumptive evidence that the check was forged.
The court will take judicial knowledge of the fact that the point indicated as the residence of Haskell is twenty or more miles from, the City of Lexington, and the evidence .presented by the Commonwealth to the effect that no such person had and had never had.an account at the bank upon which the check was drawn, and that no such man was known in or around Lexington, is not conclusive,, or even convincing, that no such man lived at the póint indicated twenty or more miles away.
Two questions are presented for decision; (1) Was there sufficient evidence that the check attempted to be [5]*5.passed by appellant was a forged instrument? and (2) Was appellant entitled to an instruction under the provisions of Section 240 of the Criminal Code?
It is conceded that there is no direct evidence that the check was forged; but it is argued that the circumstances shown in evidence justified the submission of that question to the jury. The contention is that the unreasonable story told by appellant, taken in connection with the fact that he registered at a hotel in Lexington under an assumed name; that he was seeking to buy in Lexington a bed for his wife who was in another state; that he was betting on the races and had come to Lexington for that purpose; and the improbability of his story that this man, whom he had never seen before or since, had given him a check payable to himself for a debt which the stranger claimed to have owed his brother, authorized the submission of the case to the jury-
It may be conceded that these facts and circumstances place appellant in an unenviable light, and inevitably make him an object of suspicion. But do they separately, or when taken as a whole, furnish sufficient evidence that the check was forged?
Because one tells an unreasonable story of how he came into possession of a written instrument is not conclusive evidence that it was forged; because one registers at a hotel under an assumed name is not evidence that an instrument which he subsequently came into possession of is forged; because one offers to buy a bed when he, under the circumstances, seems to have had no use for the same is not evidence that the check, which he offered in payment for the same, is forged. Admitting the force of these suspicious circumstances it does not make them evidence that the check was forged; but if they had been coupled with evidence either that there was such a man as Haskell and he had not signed the instrument, or even with evidence that there was no such man as Haskell at the place or in the vicinity where appellant claimed Haskell lived, it would have justified the submission of the case to the jury.
One in possession of an instrument purporting to have been signed by one who is shown to have been a fictitious person is presumably in posséssion of a forged instrument, for it is impossible for a fictitious person to sign or authorize a signaturé to anything. But is evi[6]*6'dence that there is no snch person as the one whose name is signed to the instrument at a place twenty or more miles from where his residence is said to he, sufficient to show that there is no such person at the designated place or its vicinity?
The evidence that no such man as Haskell lived in or near Lexington does not prove, or even conduce to prove, that no such man lived twenty or more miles away, between Mt. Sterling and Winchester. •
One cannot be guilty of uttering a forged instrument unless the instrument was forged. Unreasonable as appellant’s story seems to be it may yet be true, and suspicious as these circumstances appear they, in the absence of evidence that no such man as Haskell lived at the designated point, do not furnish sufficient evidence that the instrument was forged to authorize the case to go to the jury.
In a prosecution for uttering a forged instrument two essential things are necessary to be shown: (1) That the instrument was forged; and (2) That it was uttered or attempted to be passed with the knowledge that it was forged. Commonwealth v. Burgess, 91 S. W., 266.
In this case there was a failure to show that the instrument was forged just as there was a failure to show in the case referred to that the instrument was uttered or attempted to be passed.
Because of the failure of the Commonwealth to show that there was no such person as Haskell in the vicinity where he was said to be by appellant the motion for a peremptory instruction should have prevailed.
The statements of appellant at the examining trial did not amount to a confession; only one witness said that he stated that the check was forged, and that witness later in his testimony stated that appellant “stuck out to the very last that some gentleman between Winchester and Mount Sterling-had given it to him, by the name of Haskell.” These two statements taken together do not amount to a confession, or to even an admission that the check was forged. None of the other witnesses introduced gave any statement of appellant which could be treated as a confession or an admission that the check was forged. Taking their statements altogether they amount to nothing more than an admission by appellant that the check was not good, which, of course, is not equivalent to a confession or admission that it was a forgery.
[7]*7These statements of appellant were admissible in evidence against him because they tended to illuminate the whole transaction, but they do not amount to a confession. The distinction between a confession by an accused, and the admission by him of the truth of independent or isolated facts which may tend to prove his guilt, was clearly pointed out by this court in the case of Spicer v. Commonwealth, 21 Rep., 528.
The trial court in that case treated certain statements of the defendant as a confession and gave'an instruction under Section 240 of the Criminal Code, which provides that a. confession out of court will not warrant a conviction unless accompanied by other proof that the offense was committed.
This, court said this was in effect saying to the jury by the trial court that defendants had confessed when in fact they had not, and was reversible error.
This court in that case, defining a confession, said;
“A confession in criminal law is a voluntary statement made by a person charged with the commission of a crime or misdemeanor communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it.” (Black’s Law Dictionary.)
“There is no testimony in the record that either of the appellants ever made a confession or acknowledgment of their guilt of the offense charged. On the contrary, they most emphatically deny their guilt, and testify, both on the examining and in the final trial, to. facts which conduce to show their innocence. We, therefore, think that, this instruction was misleading to the jury and highly prejudicial to appellants.”
In this case, as in that, there was no evidence of a-confession; here the defendant consistently adhered to his statement that a man giving his name as H. L. Haskell and claiming to live between Winchester and Mount Sterling had given him the check.
In the absence of a confession of guilt as distinguished from admissions of independent facts, the court properly declined to instruct under Section 240.
The judgment is reversed with directions to grant appellant a new trial, and for further proceedings consistent herewith.
Whole Court sitting. Judges' Settle, Carroll and, Hannah dissenting. ¡