Bennett v. State

36 S.W. 947, 62 Ark. 516, 1896 Ark. LEXIS 213

• Court: Supreme Court of Arkansas
• Decided: July 8, 1896
• Status: Published

Opinion

Hughes, J.,

(after stating the facts). There was no error in the judgment of the circuit court in overruling the demurrer to the indictment. It sufficiently charges the crime of forgery. It is not necessary to allege the mode in which the offense was committed, further than it is stated in this indictment; and it is not essential that the indictment should state that the forgery was committed by signing the name of another without his authority, in so many words. The charge that the defendant “did unlawfully, wilfully, knowingly, and feloniously and fraudulently make, write, forge, and counterfeit a certain deed and acknowledgment thereof, in words and figures, as follows, to-wit” [setting out a copy of the deed alleged to have been forged], necessarily imports that it was done without authority, and sufficiently states the manner of its execution. 2 Bishop’s Cr. Pro., sec. 437. It is not necessary to set out the particular acts in which the forgery consisted. State v. Maas, 37 La. An. 292; People v. Van Alstine, 57 Mich. 69; People v. Marion, 28 Mich. 255. And this is according to the weight df authority. But it is said in People v. Marion, 28 Mich. 255, that the omitting to do so is a practice not to be commended, as an instrument may be forged in various ways, and fairness to the accused would seem to require it. The case of Com. v. Williams, 13 Bush (Ky.), 267, holds that it is necessary to do it. But this seems to be against the weight of authority. Where the prosecutor undertakes to set out in what the forgery consisted, he is bound to state it truly, so as not to mislead the defendant, and to prove it as stated. People v. Marion, 28 Mich. 255.

indictment held not duplex. when intent to forge presumed.

We are of the opinion that the acknowledgment was only a part of the deed, and that the indictment in charging forgery of the deed and of the acknowledgment charges but one offense.

One of the errors assigned in the motion for a new ° trial is “that the court’s charge on the question of intent was erroneous, and there was no evidence to support the intent alleged in the indictment,”-which is that Bennett made the deed with the intent to defraud Burns, his heirs and estate. The counsel for the defendant contend, with much earnestness and plausibility, that, inasmuch as the evidence was to the effect that Bennett forged the deed for the sole purpose of use as evidence for the defendant on the trial of Watkins, charged with taking timber from the land of another, the presumption of intent to defraud Burns, his estate and heirs, was fully rebutted, and that the defendant was not guilty of forgery, within the meaning of the law.

Bishop, in his New Criminal Law (vol. 2, sec. 5978), says : “We have seen that forgery is an attempt to cheat. And an attempt, within the ordinary doctrine, exists only where the wrongdoer’s intention is specific,— to do the particular criminal act. Whence it might be inferred that there can be forgery only where there is a specific intent to effect the particular fraud which the false writing is adapted to accomplish. But we are about to see that the adjudged law is not exactly so. In the ordinary language of the books, there must be, in the mind of the wrongdoer, an intent to defraud a particular person or persons ; though no one need in fact be cheated. Yet the intent is not necessarily, in truth, exactly this ; it is rather that the instrument forged shall be used as good. Consequently, if the forger means, for instance, to take up the bill of exchange or promissory note when it becomes due, or even if he does take it up, so as to prevent any injury falling upon any person; ***** or if a party forges a deposition to be used in court, stating merely what is true, to enforce a just claim, — he commits the offence, the law inferring conclusively the intent, to defraud. And from the intent to pass as good the law draws the conclusion of the intent to defraud whatever person may be defrauded. Ordinarily there are two persons who may legally be defrauded, — the one whose name is forged, and the one to whom the forged instrument is to be passed ; therefore the indictment may lay the intent to be to defraud either, and it will be sustained by proof of an intent to pass as good, though there is shown no intent to defraud the particular person.” (See the authorities cited to support the doctrine of these sections. They are numerous.) There must be a possibility of fraud, but that is sufficient. The making alone of the false writing, with the evil intent, is sufficient. No fraud need be actually perpetrated. 2 Bishop, New Cr. Law, secs. 599, 602; Com. v. Henry, 118 Mass. 460; State v. Kimball, 50 Maine, 409. “Where the intent alleged is to defraud the person whose name is forged, it should be presumed from the forgery, without further proof.” 2 Bishop, Cr. Pro., sec. 427; Henderson v. State, 14 Tex. 503; Rounds v. State, 78 Me. 48.

The deed in this case, as appears from the evidence, was forged with an evil intent, was designed and intended to be used as good, and as material evidence on the trial of Watkins upon a criminal charge, and was so used, and procured the acquittal of Watkins. It purports to be the warranty deed of John T. Burns, and it requires no argument to show that, had it been genuine, it might have made the estate or heirs of Burns liable, if the warranty should be broken, or assets descend to the heirs. It is shown that he left an estate, .and a brother him surviving. We make no question that the proof of these facts is sufficient to sustain the charge of forgery. 1 Wharton, Cr. Raw, sec. 743; 3 Greenleaf, Ev., secs. 18, 103; Billings v. State, 107 Ind. 54; West v. State, 22 N. J. L., 212; United States v. Shellmire, Baldw. (C. C.), 370.

“The courts are not entirely agreed as to how far the law will presume, in criminal cases, that a man intends to accomplish results which are the material and probable consequences of acts which he does knowingly and intentionally. On the one hand, some courts have laid down the rule broadly that the law will presume such intention, and have acted upon the rule so laid down, with no intimation that there might be exceptional cases in which the rule would not apply.” Note to People v. Flack, 11 L. R. A., 810, 811, under head “Presumption as to Natural Consequences of Acts.” “The New York courts Hold that the rule that a party intends the ordinary and probable consequences of his acts is only a presumption, which may be rebutted by competent evidence, and is for the jury.” Id. 811. “But even in that state it has been stated that, whether it be denominated a presumption of law or a presumption of fact, an intent to kill would be necessarily inferred from a voluntary and wilful act, which has a direct tendency to destroy another’s life, and which in fact does so.” People v. Majone, 1 N. Y. Cr. R. 89.

When variance between indictment and evidence fatal.

An intent to defraud must necessarily be inferred by the jury, in a prosecution for forgery, where the evidence shows it to have been committed with the design that the instrument forged should be used as good, and it is also shown that there was a possibility that some person might be injured thereby, or that person’s estate might be thereby injured or made liable. An estate is a “person,” in contemplation of law.

The second ground of the motion for a new trial is “that there was a variance between the deed offered in evidence and the deed set out in the indictment.”

The deed admitted in evidence, in setting out the consideration, has it thus: “The sum of five hundred and fifty dollars $550^ dollars, to us paid by J. N. Wad-kins.” The deed set out in the indictment has it thus: “Five hundred and fifty dollars ($550.00) to us paid by J. N. Watkins.” In describing the lands, as to one piece, the deed offered in evidence has it “the north half,” while the deed set out in the indictment has.it “north half,” omitting the word “the” before “north half.” In the blank form for relinquishment of dower in the deed offered in evidence, in setting out the consideration, the word is crossed as indicated, while in the deed set out in the indictment it is not, but appears without the cross marks, thus, “sum.” Again, the deed offered in evidence concludes: “Witness my hands and seals this 22 day of August, 1892,” while the deed set out in the indictment concludes: “Witness my hand and seal this 22nd day of August, 1892.”

It is the opinion of the court that “Wadkins” and “Watkins” are idem sonans,” and that there is no material variance in the using of “d” in one deed, and “t” in the other, in setting out the name of the grantee, and we deem it unnecessary to cite authorities as to this.

It is the opinion of a majority of the court that, as the indictment professes to set out an exact copy of the deed charged to have been forged, the other numerous variances between it and the deed offered in evidence, taken altogether, are material, and that, in contemplationof law, the two deeds are not the same. The words and figures which are a part of the deed set out in the indictment are said to be descriptive of the deed charged to have been forged, and a defendant could not have been convicted on such a charge by producing in evidence a deed not having these words and figures in it. McDonnell v. State, 58 Ark. 242, and cases cited. If the deed had been set out according to its purport, it might have been proved by the one offered in evidence; but, as the indictment professes to set it out in words and figures, it was necessary to prove it by an exact copy. Com. v. Parmenter, 5 Pick. 279; State v. Morton, 27 Vt. 310; Rex v. Powell, 2 East, P. C. 976.

We do not deem it important to discuss the instructions given or refused, as the opinion sufficiently, we think, states the court’s views of the question of law involved. We will state, however, that, while the instructions for the state probably contain no reversible error, we think they should have embodied the idea that if the jury found from the evidence that the deed was made to be used as good, and that there was possibility of another’s being made liable or injured thereby, a presumption of fraud necessarily arose from the proof of these facts.

pre®nCce°pf |rrana jury Admissibility ara'nspirator/

The third ground of the motion for new trial is “that N. P. Lamb was present in the grand jury room while they were examining this charge.” The evidence shows that Mr. Lamb was neither prosecuting attorney, nor deputy prosecuting attorney, and that he was not requested by the prosecuting attorney to be present in the grand jury room, but that he consulted the prosecuting attorney before going into the room, and it seems that he went by the consent of the prosecuting attorney. He testified that he examined the witnesses, and that he said nothing to influence the grand jury in their determination. It is not contended that he was present while the grand jury were deliberating or voting on the charge. Section 2058 of Sandels & Hill’s Digest provides that “no person except the prosecuting attorney and the witnesses under examination are permitted to be present while the grand jury are examining a charge, and no person whatever shall be present while the grand jury are deliberating or voting on a charge.” The importance of this provision cannot be overestimated, when we consider that the “secrecy of the grand jury room, and the privity and impartiality of that inquest,” may prevent the presentment of any one “through envy, hatred, or malice.” Rothschild v. State, 7 Tex. App. 519. But Mr. Lamb, while present in the grand jury room examining the witnesses, by the consent of the prosecuting attorney, was acting in his stead; and we are of the opinion that, as he was not present when the grand jury were deliberating or voting on the charge, his presence, in the capacity in which he was acting, is not cause for quashing the indictment, especially as it is shown that nothing was said by him to influence the finding of the grand jury.

The seventh ground of the motion for a new trial is “that the court erred in permitting Weaver and Blalock to testify as to acts and declarations of Watkins in appellant’s absence, the same not being in furtherance of any common design.” That “Watkins procured Weaver to obtain for him two blank forms for a deed” was competent evidence, being the act of a co-conspirator in the furtherance of the common design, having occurred after the conspiracy was formed, and before it was ended. But what Watkins told Weaver later in the same day (i. e., that the appellant “had promised to make a deed which would clear him”) was incompetent; the appellant not being present- when the conversation occurred, and it not being in furtherance of the common design. The conversation between Watkins and Blalock, in the absence of the defendant, in which the former told the latter that appellant had proposed to make a deed which would arrange the timber trouble, was inadmissible, not having been something done or said in furtherance of the common design to forge the deed. 1 Greenleaf, E}v. Ill; 3 id. 94.

When remarks of counsel prejudicial.

The tenth ground of the motion for a new trial is, in substance, that in his argument before the jury the counsel for the state -made improper and prejudicial remarks. The remarks of Mr. Lamb, of counsel for the state, in making his argument to the jury, were as follows: “The only relief this county can get from men who will commit forgery, who will go to Harrisburg and commit perjury, and who will commit subornation of perjury, is to send such men as Polk Bennett to the penitentiary. The defendant knows he has committed forgery, and that he committed perjury in swearing that Burns had signed the deed, and that he has committed subornation of perjury.” To which remarks the defendant at the time objected, whereupon Attorney Lamb said: “I will say, then, he swore a falsehood at Harrisburg.” To which the defendant objected. His objection was overruled, and he excepted. The defendant was not on trial for perjury or subornation of perjury, and we think the remarks were improper, and might have been prejudicial to the defendant. Whether they are grounds for reversal in this case, we need not decide. Vaughan v. State, 58 Ark. 353; Holder v. State, 58 Ark. 473.

taggectof^ a1>sence-

The eleventh ground of the motion for a new trial is ‘‘that the taking of a part of the testimony during the appellant’s necessary absence entitled him to a new trial.” The record shows that appellant, by the permission of the court, retired to the water closet for about fifteen minutes ; that he was suffering with flux at the time, which made his retirement and absence for the time necessary; that there was no refusal upon his part to be confronted with the witnesses, as in Gore v. State, 52 Ark. 285; that his retirement and absence were made necessary by his physical condition, and were voluntary only because necessary. In a prosécution for felony, the accused must be present in person whenever any substantive step is taken in his case. It is a constitutional right of his to be confronted with the witnesses. In this case, while the defendant was absent, several witnesses (at least three) were examined. The examination of witnesses is an important and substantive step in a criminal prosecution, and it is not required that defendant should show prejudice on account of his absence. Sneed v. State, 5 Ark. 431; Cole v. State, 10 Ark. 318; Bearden v. State, 44 Ark. 331; Mabry v. State, 50 Ark. 492. It was error in this case to proceed, as the court did in the trial of this case, while the defendant was necessarily absent by permission of the court.

We have found it unnecessary to refer to the grounds for new trial in appellant’s motion, which are based on the court’s refusal to grant motion for postponement of the trial, or those tending to that end.

For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.