Davis v. State, 25 Ga. App. 532

Davis v. State

25 Ga. App. 532 | Ga. Ct. App. | 1920

Lead Opinion

Luke, J.

Charles E. Davis and H. D. Leon were jointly indicted for the offense of forgery. Davis interposed a demurrer to the indictment, which was overruled. He was then separately tried and convicted, and, his motion for a new trial being overruled, he brought the case here for review.

*5361. The indictment charged that “said accused, in the county of Fulton and State of Georgia, on the 21st day of November, 1917, . . did wrongfully, falsely, and fraudulently make, sign, and forge the name of L. E. Bleckley on and to a certain deed, the same being in form and substance as follows, to wit: . .; and said acts were done with intent to defraud Mrs. L. E. Bleckley, who is the present owner of said land, under the will of L. E. Bleckley, the grantee from the State of Georgia, and the acts herein complained of were and are contrary to the laws of said State, the good order, peace, and dignity thereof.” Incorporated in the indictment at the place above indicated was a warranty deed, dated November 20, 1852, purporting to have been executed by L. E. Bleckley, as grantor, to M. B. Millen, as grantee, and to convey all 'of lot of land No. 522 in the 5th district of “Appling (now Ware) County.” The deed also purported to have been duly attested. To that indictment Davis demurred (1) generally, and (2) because only a forgery of the grantor’s name, and not the deed itself, was charged; (3) because it did not appear how the two defendants “could jointly take part in the manual act of writing” the grantor’s name; and (4) because there is no allegation that the act of forging the name of L. E. Bleckley was done at that time with intent to defraud any person; “ the allegation in the indictment that said name was forged to said deed on November 21, 1917, for the purpose of defrauding a person who did not own the property before the finding of the indictment, on June 13, 1918, does not charge that the act was done with intent to defraud any one.” The opinion of this court upon all the grounds of the demurrer is announced in the headnotes.

2. The principles stated in headnote 2 need no elaboration. If any further discussion along that line is desired, it will be found in the authorities there cited, which are controlling. The only question for consideration here is the application of such principles to the facts of this case. In the trial of Davis his codefendant Leon testified as a witness for the State. Leon’s testimony establishes his own guilt of the offense charged as clearly as it tends to establish the guilt of Davis. It follows that his testimony stands, and must stand, as that of an accomplice. Stone v. State 118 Ga. 108 (3) (45 S. E. 630, 98 Am. St. Rep. 145.); Hargrove v. State, 125 Ga. 270, 273 (54 S. E. 164). The accomplice Leon *537testified' to the truth of every essential averment in the bill of indictment, unless it can be said that there was a material variance with respect to the form of the deed alleged to have been forged. As to this matter, the deed set out in the indicment describes the land as being in “Appling (now Ware) County.” The original deed shown by the evidence, and abundantly proved to be a forgery, is identical throughout, in both form and substance, with that set out in the indictment. Leon identified the deed in evidence and testified that it was a deed, and the only deed, which he had forged at the solicitation and dictation of the defendant Davis; but he further testified that at the time he so forged it and delivered it to Davis the land was therein described as being in “Coffee” county, and the names of the attesting witnesses did not appear. Both he and other wittnesses testify that these alterations in and additions to the proved original are in a different handwriting from the rest of the deed. In this connection, the documentary evidence shows correspondence by Davis at a date subsequent to the alleged and proved date of the original forgery, endeavoring to ascertain the name of the county from which Ware county was taken and the county in which the land in question actually lay at the time the forged deed purports on its face to have been executed. In our opinion these facts, in connection with the other evidence in the case, tend far more strongly to connect Davis with the actual perpetration of the crime alleged in the indictment than to create a variance between the allegations and the proof.

So far 'as the general grounds of the motion for a new trial are concerned, the only remaining question is: Does the other evidence in the case sufficiently corroborate the testimony of the accomplice? The matter above mentioned, on the question of variance, is itself one circumstance to be considered in this connection. In his statement to the court and jury the defendant Davis says that the only connection he had with the forged deed was as a real-estate agent, endeavoring to negotiate a sale of the land for Leon, whom he believed to be the bona fide owner thereof, and in whose chain of title the forged deed appears as one link, without any knowledge or suspicion on his part with respect to the fact of forgery. Leon testified, that he had known nothing of the land in question until Davis entered his (Leon’s) room one night in September, 1917, and suggested the forgery in order *538that they might both make some money out of it; that Davis dictated the contents of the deed while he wrote it; that there was no agreement between them as to how much he should receive for his share of the proceeds, but that Davis handed him $10 at that time, and subsequently remitted by mail $20, retaining for himself the balance of the proceeds of sale, whatever sum it may have been. The other evidence showed that, through one Carver, Davis negotiated a sale of the land for $1,000; that Carver remitted a half of that consideration, or $500 (less some small items of expense) to Davis; and that Davis thereupon remitted $20 to Leon, which sum was accompanied by a letter from Davis saying: “Herewith I send you check for $20.00 on South Georgia matter, and I am sorry it is not more, but the old codger put us to so much expense and after he got the money had to run him down, there was but little left.” In Pritchett v. State, 92 Ga. 33 (1) (18 S. E. 350), a burglary case, it was held that possession of some of the stolen goods by the accused on trial, and possession of some of them by a witness for the State, sufficiently corroborated the testimony of the witness, who testified that the building was burglarized by himself and the accused in the night by unlocking the door, entering the house, and stealing the goods. That decision seems in principle to be controlling here.

Leon further testified, that, in an effort to forge an apparently genuine signature to the deed, Davis furnished him with an old fi. fa., whereon an entry signed “L. E. Bleckley, Plffs Atty.,” appeared, and that, after some practice at imitating that signature, he signed an imitation thereof to the deed, and returned the fi. fa. and the forged deed together to Davis. The other .evidenc shows that when the deed was subsequently attacked as a forgery, in a civil proceeding brought by Mrs. L. E. Bleckley, Davis furnished to counsel for the defendant in that proceeding a like fi. fa. for use in establishing the genuineness of the forged signature. The fi. fa. so furnished by Davis for use in evidence in that case was put in evidence in this case, and was identified by Leon as the same fi. fa. he had used in forging the deed. It further appeared, from a comparison of the two papers, that the forged signature to the deed was an imitation of the genuine signature on the fi. fa., and that, althougn the signature on the fi. fa. was genuine, it was unlike any other of a great number of the proved genuine signatures *539of the same person covering a period of thirty years. Not only do these extrinsic matters serve to corroborate Leon, but they also tend to identify Davis with the preparation of the offense charged. The brief of the evidence, consisting of 159 pages, affords much additional evidence, both oral and documentary, corroborative of Leon and identifying Davis as the prime mover in and chief benficiary of the crime charged in the bill of indictment. In the opinion of this court, however, the evidence specifically referred to above affords sufficient corroboration of the testimony of the accomplice; and since his testimony relates to every essential of the offense charged, the conviction was warranted by the evidence.

3. It is contended that, since the indictment contains no allegation that the accused did “cause or procure” the crime to be committed, or that he did “willingly aid or assist” in so doing, as it might have done under the provisions of section 231 of the Penal Code, and since the evidence shows the forgery to have been the manual act of Leon, a fatal variance between the allegations and the proof results as to Davis. We do not agree with that contention. It may be that, under the peculiar provisions of the code as to forgery, an accessory before the fact to that offense is indictable as a principle in the first degree. Indeed, the principle stated in Stone v. State, 118 Ga. 705 (1) (45 S. E, 630, 98 Am. St. R. 145), seemingly leaves no question about it. But, however that m'ay be, under the principles announced in the third headnote, as applied to the facts of the instant case, the indictment was sufficiently broad in its terms to authorize the evidence, and the variance between the allegation and the proof is nominal, rather than real.

4-17. The remaining grounds of error, which deal with rulings made during the progress of the trial and with excerpts from the charge of the court, are ruled upon in the headnotes.

The guilt of the defendant in this case was abundantly established by the evidence, and his conviction was. approved by the trial judge in overruling the motion for a new trial. Every assignment of error has been carefully considered by this court, and there are no errors of law in the trial of the case that require a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

Concurrence Opinion

Bloodworth, J.,

concurring specially. Without being commit*540ted to every statement in the foregoing opinion, I do not think that any of the assignments of error shows cause for a new trial of the case, and I concur in the judgment of affirmance. I am authorized to say that' Broyles, C. J., joins in this concurrence.