Dowling v. United States, 41 App. D.C. 11

Dowling v. United States

41 App. D.C. 11 | D.C. Cir. | 1913

Mr. Justice Van Orsdel

delivered the opinion of the Court:

That the crime of forgery, and not embezzlement, was committed, is foreclosed by the jury’s finding that the indorsement on the check was made by defendant without authority from his employers. “To constitute the crime of forgery three things must exist: ‘There must be a false making of other alteration of some instrument in writing; there must be a fraudulent intent'; and the instrument must be apparently capable of effecting a fraud.’ * * * Intent in forgery will not be presumed from the mere making of a false instrument. It must be gathered from some affirmative act, or from the existence of circumstances from which criminal intent may be inferred.” Frisby v. United States, 38 App. D. C. 22, 26, 37 L.R.A.(N.S.) 96.

In this view of the case, we think the evidence as to the false entry upon the books, and the inquiry as to the change of price on the bill, were both competent as showing intent on the part of defendant to commit the crime charged. It being incumbent Upon the government to show an intent to defraud, it was proper to inquire into the acts of defendant, not only in procuring the forged instrument, but also as to the disposition he' made of the proceeds derived from its utterance.

Referring to the fourth assignment, it appears that the government, in rebuttal, had upon the stand a witness named Hobbs, a bookkeeper for Wardman, and while he was being cross-examined by the defendant, the defendant asked him if he had not with him other checks from Wardman to said firm, and being answered in the affirmative, asked to have said checks *17produced and admitted in evidence. The offer was excluded on the ground that the offer was out of time, as the defendant had closed his case, and it was not proper cross-examination, as Hobbs had not been asked anything by the government concerning said checks. It was within the power pf the trial judge to direct the orderly course of procedure in the conduct of the trial. It must be presumed that the witness Hobbs was available when defendant was introducing his evidence in chief. If the checks were competent for any purpose, it must have been to support defendant’s statement that Moler, and not he, indorsed the checks involved in the counts of the indictment. For that purpose the evidence was part of defendant’s case in chief, and should have been adduced at the proper time. ' The court properly refused to permit the witness to answer the question, both on the ground that it was not proper cross-examination, and for the reason that the offer was made out of season. To have permitted these checks to have been introduced after both parties had closed their evidence in chief would have leen equivalent to opening the case anew. The rule is elementary that cross-examination of a witness must be confined to the matters brought out on his direct examination. Houghton v. Jones, 1 Wall. 702, 17 L. ed. 503; Rea v. Missouri, 17 Wall. 532, 21 L. ed. 707.

It is unnecessary to pass upon the admissibility of the evidence as to defendant’s financial condition, since the court, upon motion of defendant, instructed the jury to disregard the evidence, and not to consider it in arriving at a verdict. If, as is now contended, the mere admission of this evidence was fatally prejudicial to defendant, and rendered it impossible for the jury to disregard its effect, the court should have been requested to withdraw a juror and continue the cause. This was not done, and -we are now asked to presume from a record which purports only to be a brief epitome of what actually occurred at the trial, that defendant was so prejudiced by the admission of this testimony as to render it impossible for an intelligent jury to disregard it and award him a fair trial, though expressly directed by the court to do so.

*18It appears that when the trial had closed, and the jury had been instructed, tbe court suggested tbat tbe jury could take with it to tbe jury room for examination the books of tbe firm of Knott & Moler and the checks which bad been introduced in evidence. To this defendant objected, whereupon tbe court suggested tbat tbe boobs and checks could be examined by tbe jury in tbe court room before retiring to the jury room, to which counsel for defendant responded, “Very well.” Wben tbe examination was completed, counsel for defendant interposed an objection and exception to tbe action of tbe court. Tbe government bad properly offered on tbe trial to prove certain entries in tbe books, to which counsel for defendant bad objected, and had insisted tbat tbe books be introduced in evidence, which bad been done. Tbe books were therefore in evidence by request of defendant, and submitted to examination by tbe jury with bis consent. It was error for tbe court to permit tbe jury to examine the books in tbe court room after tbe case bad been submitted, with tbe general admonition to consider only those entries bearing upon tbe case, and it would have been equally improper to have permitted tbe jury to take tbe boobs to tbe jury room. Tbe books undoubtedly contained entries material to tbe issues in tbe case, but tbe particular entries should have been pointed out to tbe jury at the'proper time by a competent witness from tbe witness stand. But, however irregular tbe proceeding, defendant cannot be beard to complain. A defendant in a criminal case will not be permitted to lay a trap for tbe court, and, after tbe court has become ensnared, claim prejudicial error, because tbe court did what be requested, or assented to. Tbe objection came too late.

We are not unmindful of tbe rule so strongly urged at Tar, tbat appellate courts will exercise a sound discretion to determine upon the whole record whether or not tbe defendant has bad a fair trial, and, if convinced tbat tbe court below has committed prejudicial error, will, notwithstanding tbe oversight of counsel for defendant, or tbe attempt of tbe court to cure tbe error by instruction, gi-ant a new trial. But we are *19not convinced that this is a case calling for the application of the rule. The clean-cut questions of the forgery and the fraudulent entry on the books of the firm, as well as the application to his own use of a part of the proceeds derived from the utterance of the forged check, were fairly presented to the jury, and found adversely to defendant. In no essential is the application of the rule of appellate discretion here necessary to protect the rights of the defendant.

The judgment is affirmed, and it is so ordered.

Affirmed.