109 Neb. 558 | Neb. | 1922
This is a prosecution for forgery,wherein the defendant was charged with forging and uttering four different checks at different times in separate counts, but the fourth count was dismissed, and defendant was tried and convicted on the three remaining. Some 45 errors are complained of, many of which are hypercritical and absolutely without- merit. We have examined the record and the briefs with great care and find only the following questions in the record which require consideration.
2. The subject of the several forgeries being checks upon banks, it is claimed that they do not constitute forgeries, but merely offenses, under the fraudulent check act of 1921, chapter 296, Laws 1921, and that the latter act repealed by implication the forgery statute so far as checks were concerned. The fraudulent check act merely made it an offense to issue a check or order for the payment of money, upon any bank, knowing that the maker had no sufficient funds in or credit with such bank for the payment of such check in full. This was a new and
3. An affidavit sworn to before the county attorney by defendant while in jail, in which he stated that his true name was Walter Baker, and that he never went by the name of Charles R. Smith, or Clifford R. Smith, or Charles M. Smith, or Charles M. Whyte, was received in evidence over objection of defendant, that no proper foundation had been laid, and it was incompetent, irrelevant and immaterial. There was no direct evidence that the statement was made voluntarily, though, of course, he was under no obligation to make the affidavit, but he was under arrest at the time. However, defendant pleaded under that name without any suggestion that it was not his true name — the record shows that he signed an affidavit for process in that name and gave that name to the sheriff- when he was arrested, which evidence was received without objection. Under these circumstances any error in receiving the affidavit was without prejudice.
A. ' Instruction No. 10 is criticized. It begins: “You are instructed that the defense in this case is what is known as an ‘alibi.’ ” Defendant claims that thereby he was limited to that one defense. An alibi necessarily, from its very nature, denies every other fact charged, and it would have been better to have said “one of the defenses is an alibi,” or words to that effect; but the statement was literally true; defendant produced no evidence on any other subject; he did not offer himself as a witness, nor call his wife in support of the alibi, although all his witnesses put them together at the places they claimed
5. Instruction No. 12 is as follows: “The jury are instructed that any defendant is presumed to be innocent until he has by sufficient proof been proved to be guilty, and it is the duty of the jury to give to the defendant the full benefit of this presumption and acquit him, unless the jury, from the evidence, believe that he has been proved guilty in manner and form as charged in the complaint, beyond a reasonable doubt.”
It is urged that by this instruction defendant was deprived of the benefit of the presumption as evidence. While the instruction would be clearer if it were stated that the presumption was matter of evidence in favor of the defendant, the jury were told that it was their duty “to give to the defendant the full benefit of this pre: sumption,” etc., and we do not think' it was prejudicial-error. Bartley v. State, 53 Neb. 310; Garrison v. People, 6 Neb. 274.
6. Instruction No. 13 reads: “You are instructed that a reasonable doubt is what the word implies — a doubt founded in reason; a doubt for which you can give a reason; a doubt growing out of the testimony in the case, or lack of testimony; a doubt which would cause you to hesitate in the ordinary affairs of life. It is not a flimsy, fanciful, fictitious doubt which you could raise about anything and everything. It means a reasonable doubt. If, when all is said and done, you have such a doubt about the guilt of the accused, it is your duty to acquit him.”
The objection goes to the phrase, “a doubt for which you can give a reason.” That an instruction which requires that the jury be able. to give a reason for the doubt which they may have is erroneous is decided in Cowan v. State, 22 Neb. 519, Carr v. State, 23 Neb. 749, and Childs v. State, 34 Neb. 236; and in the first of those
“No judgment shall be set aside, or new trial granted, or judgment rendered, in any criminal case on the grounds of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.” Comp. St. 1922, sec. 10186.
This statute was passed in response to a quite general demand that the strict rules of the common law through which the prisoner in many instances escaped or the prosecution was unreasonably delayed, by reversals upon merely technical grounds, should be modified, and power given to the courts to disregard errors and imperfections in the proceedings, when it appears from the record that the substantial rights of defendant have not suffered thereby. We think, under this statute, it is the duty of lids court, in every case where error is shown, to determine this question of prejudice before reversing the' judgment. A careful perusal of the record convinces us that the result would not have been different if a technically correct instruction had been given; and, indeed, taking the objectionable words in connection with the context and reading the entire instruction together, they appear to be absolutely harmless.
The evidence convicts the defendant of the crime charged beyond peradventure of a doubt, and we would not be justified in reversing the judgment under these circumstances.
Affirmed.