101 Ky. 556 | Ky. Ct. App. | 1897
DELIVERED THE OPINION OE THE COUBT.
Appellant wais indicted and convicted of the offense of forgery, the indictment charging forgery of a bank check and signature of Thomas J. Carson; averring lack of authority from Carson, and that the check was forged by Barnes with intent to fraud. It appears from the bill of ■evidence that, for some reason, appellant was .arrested by the police; when taken to the stationhouise was searched, and a number of checks and some other papers were found concealed upon his person, between his shirt and his body. One of the witnesses testified that appellant slipped the papers from his pocket and put them down his shirt collar at the x^olice station. Carson, the purported maker of the check, testified that he never signed or authorized the signature to the check in question; that he received a letter from appellant, and wrote an answer to it, which was found on appellant’s person. Two others of the checks purported to be signed by Mr. Carson, and substantially the same testimony was given in regard to them. It was proven by the bank officers that the certificates upon the checks were forgeries.
The first objection urged by appellant is that a peremp
It is objected that the attorney for the Commonwealth
The averment as to the forgery of the signature is* redundant, it is true, but it is merely an averment of the manner in which the check was forged — i. e., by the forgery of the signature thereof. A further objection urged is, that the forged paper was not capable of effecting a fraud, and an instruction to the jury was based upon this view of the law and requested by the appellant. Appellant offered to prove, and made the proper avowal that he could prove, by one of the witnesses for 'the Commonwealth that the paper was not such an instrument of writing as was calculated on its face to deceive any person of ordinary intelligence, care and prudence. “The forgery of a check on a bank,” says Bishop’s New Criminal Law, volume 2, section 593, “may be punishable, though the similitude is not such as would be likely to deceive tbe officers of the bank. Beyond which such a check would ordinarily he within the doctrine of our last paragraph, if made to be sold in the open market instead of being presented to the bank.”
And again, in the same section, Bishop says: “The signatures of private persons are not ordinarily known to the
Objection is also' made ¡to -the introduction of checks ■ numbered 4, 5 and 6 upon the ground that there was no evidence that these checks were forgeries. It is shown, however, by the assistant cashier that the certifications upon said checks were not genuine, and we think the possession of similar cheeks bearing false certifications was admissible evidence as tending to show the guilty intent of appellant with respect to the check charged in the indictment.
Another objection urged by counsel for appellant is that a personal letter written by T. J. Carson to the Commonwealth’s -attorney was, by mistake, handed to- the jury and inspected by them, one of the jurors having asked to see 'the letter which had been introduced. The letter shown him contained references to the arrest of -appellant, and to the fact that forged papers had been found upon Ms person. We do not think this objection well taken, as the court instructed the jury that, for no purpose, was the letter which they had seen competent evidence, or to be taken into consideration in making their verdict. It was also objected that the Commonwealth’s attorney, in Ms argument to the jury, stated that after appellant’s arrest he had never yet said a word, or used some similar expression. The jury were, however, instructed that the remark was improper, and the court cautioned them in no way to take into consideration, in making their verdict, the fact that defendant had not testified. It is further objected to the
It is contended very earnestly, and with great plausibility, that it was necessary to show isome person who was> the object of the fraudulent purpose of appellant, and that it was possible to defraud that person, and further, that the indictment is fatally defective on account of the omission mentioned, and the demurrer thereto should have been sustained by the trial court. These questions, which are the only questions remaining for decision, will be considered together. “The common law rules require the name of the person, corporation. State, or the like, meant to be defrauded, to be averred, if known, to the grand jury, or, if not
“The intent to defraud a person or the public, not necessarily a fraud consummated, must be proved, in general and as to the individual, comformably to the allegation. The question is for the jury, who still proceed by the rules; thus the intent is presumed to defraud the person whose name is forged, without the testimony of witnesses, from the forgery itself.” (Bishop’s New Crim. Proc., vol. 2, sec. 427.)
In England and some of our States it has been declared by statute sufficient to charge the intent to defraud in general terms, without giving- names, but n.o such statute appears to have been adopted in this State, and we have neither been cited to, nor have we found, any Kentucky case holding that this rule of the common la.w may be disregarded. In Stowers v. Commonwealth, 12 Bush, 343, it was said by Judge Elliott that “there is some conflict of authority as to whether the indictment does not have to show the person the prisoner intended to defraud.” In Moore v. Commonwealth, 92 Ky., 633, in an indictment drawn under what is now section 1188, Kentucky Statutes, it wa-s held sufficient to aver an intent to cheat and defraud the ■State, the State being held to he another person within the meaning of the statute.
We conclude- that the common law in this behalf has not been altered in this State, and that it is essential to aver the name of the person, corporation, State, or the like, or if not known, to aver that it is unknown. For a careful consideration of the common-law rule in this regard see Bishop’s Directions and Forms, section 457.