Henderson v. State

Wheeler, J.

The Court did not err in quashing the second count in the indictment. It omitted to charge that the defendant used the deed “ as true,” “ knowing the same to be ” “ counterfeited,” in the words of the Statute. (Hart. Dig. Art. 1442.) Nor did it use any equivalent words, conveying the charge of having uttered the forged deed with a guilty knowledge. The offence of uttering forged instruments is defined by the Statute, in very plain and intelligible language; and the statutory definition of the offence should have been pursued. It is always proper to describe the offence in the very words of the Statute, where, as in this case, it affords a complete definition. It is safest to adhere strictly to the words in which the Legislature have undertaken to define the offence; for none others can be so appropriate to convey their meaning. And it is never safe to depart from them. It will be certainly fatal to the indictment, if any essential element in the definition of the offence in the Statute be omitted. Here, an essential ingredient in the definition, plainly expressed in the Statute, is wholly omitted. (3 Chit. Cr. Law, 1049, 1039; 3 Greenl. Ev. Sec. 111; 3 Arch. Cr. Pl. 547, 26, 548, et seq. and notes.) This count in the indictment was therefore bad ;• and the State was, consequently, forced to try upon the remaining count, embarrassed by the difficulty of proving the venue as laid ; which might have been avoided, had this count been properly framed.

It is now objected to the judgment of conviction, upon the first count, that the Court erred in admitting in evidence the certified copy of the supposed forged deed, because not an examined copy. It was not proposed, primarily, to prove a record, but, by means of the record, the contents of an original paper in the possession of the party. If the rule respecting the proof of records applies, the evidence was that which the law allows for that purpose; and it was not necessary to bring the record into Court, or to produce other evidence than that which was produced. The certified copy, in connection with the testimony of the Clerk, was the best evidence of the contents of the original, which the State could obtain. The testimony of the Clerk who recorded the deed, and who was the keeper of the record, gave the copy introduced all the verity of, and in effect, if not in fact, made it an examined copy. It is well settled, in trials for forgery, as well as in other cases, that if the original forged paper is lost, or destroyed, or in possession of the party, who refuses to produce it, secondary evidence of its contents may be received. (3 Arch. Cr. Pl. 555, n. 1, 6 ed.) The next best evidence which the nature of the case admits of, and which it is in the power of the party to produce, will be admitted. (3 Greenl. Ev. Sec. 107; 2 Mason, R. 464; 3 C. & P. 591.) Such was the evidence produced in this case, and there was no error in its admission.

But it is objected that the notice to the defendant to produce the original, was not given a sufficient length of time before the trial; and upon this point there may be reason to hesitate. The notice was not given until several days after the commencement of the Term of the Court, and but two or three days before the trial. Where, upon an indictment for forging a deed, it was proposed to give secondary evidence of it, upon the ground that it was in possession of the prisoner, and he had notice to produce it, but it appearing that the Assizes had commenced before the notice was given, the Court held that it was not sufficient, and that it ought to have been given a reasonable time before the Assizes. (4 Carr & P. 254; 3 Greenl. Ev. Sec. 107; 3 Arch. Cr. Pl. 554-1, 555.) If it should appear that the prisoner has destroyed the paper, notice to produce would be unnecessary, for then it would be nugatory. (Id. and How v. Hall, 14 East. 276, n.) If, however, the fact of the destruction of the instrument is not clearly proved, and is denied by the prisoner, notice to produce it will not be dispensed with. (Doe v. Morris, 3 Ad. & El. 46.) There are certain exceptions to the rule, which requires that notice be given to the party to produce the original when it is in his possession, (1 Greenl. Ev. Sec. 561,) but they are not necessary to be here considered. If the indictment had apprised the accused, that the prosecution intended to charge him with the possession of the instrument, it would have brought the case within one of the exceptions to the rule, and notice to produce would not have been necessary. (Ib.) But it did not. He was therefore entitled to notice ; and it may admit of a question, whether, under the circumstances, the notice was sufficient. (Id. Sec. 562, n.) But our opinion upon another question in the case, supercedes the necessity of a definite and final opinion upon this point.

It is further objected that the evidence admitted was incompetent to prove the death of the person by whom the deed purports to have been made. And it is insisted, that as the conclusion that the deed is a forged deed, rests solely upon that fact, and that is the sole evidence relied on to prove the corpus delicti, nothing short of direct and positive evidence is competent to establish the fact.

It is true, that it was essential to prove that the deed was not the deed of the person in whose name it professed to be made. That was the factum probandum. And circumstantial evidence was relied on to prove it. And it is also true, that the coincidence of circumstances, tending to indicate guilt, however strong or numerous they may be, avails nothing, unless the corpus delicti, the fact that the crime has actually been perpetrated, be first established. But it need not be proved by direct evidence. Thus, even in cases of homicide, the death of the party slain may be proved either by direct evidence of the fact, or by inspection of the body after death; which latter, though conclusive, yet is not direct evidence of the fact of death. But though the corpus delicti may be proved by circumstantial evidence, it is also true, that the circumstances, from which the conclusion is drawn, must be fully established by proof. “ If the basis be unsound, the superstructure cannot be secure.” The party upon whom the burden of proof rests is bound to prove each circumstance which is essential to the conclusion, in the same manner as if the whole issue had rested upon it. (1 Starkie, Ev. 507.) “ The circumstances ” (in the words of the Supreme Court of Massachusetts, in The Commonwealth v. Webster,) “are facts, from which the main fact “ is to be inferred; and they are to be proved by competent “ evidence, and by the same weight and force of evidence, as if “ each one were itself the main fact in issue. Under this rule, “ every circumstance, relied upon as material, is to be brought “ to the test of strict proof. (5 Cushing, R. 317-18.) But this rule does not require that the circumstances, which may consist of a series of dependent facts, should each be proved by direct evidence. If one fact be dependent upon, and a necessary conclusion from another, though the rule requires that the fact on which the conclusion depends, be brought to the test of strict proof, and established by competent evidence, and by the same weight of evidence as if it were itself the conclusion, or factum probandum, it does not require more; but the same character aud weight of evidence, which would be sufficient to prove the conclusion or main fact in issue, will be sufficient to establish that from which it results. Thus, if it was admissible, in this case, to prove by circumstantial evidence that the deed was forged; as it will not be denied that it was; so may the fact, from which that conclusion is drawn, and on which it rests, or depends, be proved by circumstantial evidence. And the law demands no higher degree, or greater weight of evidence to prove the latter than the former fact. “ The force of a particular inference, drawn from a number of “ dependent facts, is not augmented, neither is it diminished, “ in respect of the number of such dependent facts, provided “ they be established.” (1 Stark. Ev. 504.) If John Price was dead at the time of the making of the deed, the conclusion is inevitable, that it was not made by him. The fact that he was dead, if that be the sole basis on which the conclusion rests, must be fully established by competent evidence. But it need not be proved by direct evidence. And here, as elsewhere, the rule applies, that the best evidence which, in the nature of the case, can be obtained, must be received. And the rule is the same in criminal as in civil cases. (1 Greenl. Ev. Sec. 65; Roscoe, Cr. Ev. 73.) Whether it be sufficient, will depend on its adequacy to satisfy an unprejudiced mind, of the truth of the fact, beyond a reasonable doubt. “ The cir- “ cumstances (it has been justly said) which will amount to this “ degree of proof, can never be previously defined; the only “ legal test, of which they are susceptible, is their sufficiency to “ satisfy the mind and conscience of a common man; and so to “ convince him, that he would venture to act upon that convic- “ tion, in matters of the highest concern and importance to Ms “ own interest.” (1 Greenl. Ev. Sec. 2.) After laying down certain rules on the subject, Mr. Starkie says: “ What cir- “ cumstances will amount to proof can never be matter of gen- “ eral definition; the legal test is, the sufficiency of the evi- “ dence to satisfy the understanding and conscience of the jury. “ On the one hand, absolute, metaphysical and demonstrative “ certainty, is not essential to proof by circumstances." It is “ sufficient if they produce moral certainty, to the exclusion of “ every reasonable doubt; even direct and positive testimony “ does hot afford grounds of belief of a higher and superior na- “ ture.” “ On the other hand, a juror ought not to condemn, “ unless the evidence exclude from his mind all reasonable “ doubt of the guilt of the accused, and, as has been well ob- “ served, unless he be so convinced by the evidence, that he “ would venture to act upon that conviction in matters of the “highest concern and importance to his own interest.” (1 Stark. Ev. 514.) The result of the rules of law respecting the sufficiency of circumstantial evidence, is very well and concisely stated by the reporter, in the case of the Commonwealth v. Webster, before cited; thus, “ In order to warrant a convic- “ tion of a crime, on circumstantial evidence, each fact, necessary to the conclusion sought to be established, must be “ proved, by competent evidence, beyond a reasonable doubt; “ all the facts ” (that is the facts necessary to the conclusion) “ must be consistent with each other and with the main fact “ sought to be proved; and the circumstances, taken together, “ must be of a conclusive nature, leading, on the whole, to a “ satisfactory conclusion, and producing in effect a reasonable “ and moral certainty, that the accused, and no other person, “ committed the offence charged.”

As respects the character of the evidence, it must be apparent, that evidence of the character of that which was admitted in this case, is in general the best, and often, indeed, the only evidence which it will be in the power of the State to obtain, in such cases. It is a very different case, from that of proving the previous marriage in the case put by counsel. The living can point to the witnesses of their marriage, but from the grave there is no voice heard to tell where the living witnesses, present when the spirit took its departure, "may be found. From the nature of the case, a less degree of evidence should be required in the latter, than the former case.

But it is to be observed, that the conclusion that the deed was forged does not rest, immediately, or solely, upon the assumed hypothesis of the death of the supposed maker. But proof of his death involves the conclusion of the impossibility of his presence at the time and place of the making of the deed, and the consequent impossibility of his having made it. But whether dead or absent, the conclusion is equally inevitable, that he did not make the deed; and consequently that it is forged; unless it be shown that it was made by some other person by his authority, or was, in fact, made at a different time and place from that at which it purports to have been made. And this, if the fact were so, it devolved on the accused' to prove; for, being the grantee, claiming under the deed, at least in so far as to have had it recorded, as against him, it must be taken to afford prima facie evidence that it was made when and where it purports to have been made. To make out a case, therefore, which should amount to proof, prima fade, that the deed was forged, it was only necessary for the State to prove, by competent evidence, circumstances having a conclusive tendency and force to establish, either that the person by whom it professed to have been made, was dead; or that he was absent from the place where, and at the time when, the deed purported to have been made.

The impossibility of adducing direct evidence of the fact of the forgery, in consequence of the original being suppressed or withheld by the accused, though not to be taken as evidence, tending in any degree to the proof of the corpus delicU, or as evidence of guilt, is nevertheless a fact, which must be attended with the consequence of excusing the State from adducing direct and positive evidence of the crime. Direct evidence to prove the fact, either of the false making of the instrument, or the circumstances on which that conclusion depends, must be dispensed with in such cases, or society could have no protection against the perpetration of crimes of this character. Forgeries might be perpetrated with impunity, which, upon a man’s death, would sweep away his estate, wrest from his widow and children Ms possessions, and thrust them out, homeless and beggars, from the home so sacred, in the eye of our law, that 'while the owner lives, it is his castle, where none dare intrude, and when he dies, not even Ms honest creditor, nor any officer or process of the law, no consequence of his own improvidence while living, can wrest from the possession •of his widow and children." There is perhaps no crime affecting property, easier of perpetration, or more dangerous in its consequences to society ; few, perhaps, of which there is less likelihood that the innocent will be accused; and none where the accusation, if false or unfounded, will admit of a readier or more certain refutation. None of these considerations, of course, can have any influence upon the question of guilt or innocence of the crime, in any given case. Nor can they change the rules of evidence, or warrant a conviction upon less, or a lower grade of evidence than would be required to convict of other crimes. But they may serve to show the propriety and necessity of resorting to circumstantial evidence, where direct evidence of the facts does not exist, or is not within the power of those representing the State ; and of admitting the best evidence which, in the nature of the case, it is possible to obtain. Such evidence is permitted by the law to be received, and is allowed to prevail, to the conviction of an offender, no't merely because it is necessary and politic that it should be resorted to, but because it is, in its own nature, capable of producing the highest degree of moral certainty, in its application.

We are of opinion, therefore, that the evidence in question was not obnoxious to the objection urged to its admissibility, or competency; and we are not prepared to say that it was not sufficient prima facie proof, that the deed in question was not the deed of John Price, whose deed it professed to be. That conclusion would, doubtless, have been greatly strengthened, as respects the person, by proof that the title to the land, which the deed purported to convey, was in him, if such was the fact. But in respect to the fraudulent intent, necessary to consummate the crime, the evidence was sufficient without such proof; as the Statute does not require proof of an intention to defraud any person in particular. (Act of Feb. 9th, 1854, Sec. 23; 3 Arch. Cr. Pl. 546, 550, n. (1) 6 ed.; 3 Greenl. Ev. Sec. 103.) The intent to defraud, it is true, is of the essence of the crime. But it is not essential that any person be actually defrauded ; or that any act be done towards the attainment of the fruits of the crime, other than the making of the instrument. And the very fact of the forgery itself, will be sufficient to imply an intention to defraud; or at least, it will be sufficient, if, from the circumstances of the case, the jury can fairly infer that it was the intention of the party to utter the forged instrument; (3 Greenl. Ev. Sec. 103; 3 Arch. Cr. Pl. 546; 2 Russ. on Cr. 361, 7th Am. from 3rd London ed.;) and, a fortiori, if, as in this case, there is proof that he did utter it. It is well settled, it is true, as held in a case cited by counsel, (The People v. Shall, 9 Cow. R. 778,) that'the forging of an instrument which, on its face, is void, is not indictable. But that is not this case. The deed, on its face, appears to be a valid, legal conveyance of land. And it is sufficient, that it is such a character of instrument, as that, the consequences of the forgery would necessarily or possibly be to defraud some person. It is sufficient if it appear that by possibility, either the State, or some person, might be defrauded. (Act above cited; 3 Greenl. Sec. 103; 2 Russ. on Cr. 361, n.; 2 New. Jer. 212.)

It remains to consider an objection to the judgment, founded on a rule of the Common Law, which, though merely technical, and abrogated by Statute in England, and probably in most of our sister States, (in its application to this and many other of-fences,) has, here, the force of legislative affirmation ; that is, that the accused must be prosecuted in the county where the crime was committed. (Hart. Dig. Art. 667; 3 Chit. Cr. Law, 1039, b; 1 Arch. Cr. Pl. 71.) It is insisted that it does not appear by the evidence, that the deed was made in the county where the party was indicted ; and where it is alleged to have been made, in the indictment.

" It has been held that if the instrument is not dated at any place, and the fact of forgery by the prisoner is proved, and that he uttered or attempted to utter it at the place named in the indictment, this is evidence that it was.forged at that place. (Bland v. The People, 3 Scam. 364.) And it is well settled that, if the instrument bears date at a certain place, and it is proved that the accused was there at that time, this is sufficient evidence that it was made at that place. But where a forged instrument was found in the prisoner’s possession at W., where he then resided, but it bore date at S., at a previous time, when he dwelt in that place, this was held not to be sufficient evidence of the commission of the offence at W. (3 Greenl. Ev. Sec. 112; 1 Chit. Cr. Law, 160; 3 Id. 1039, b.) And in the case of the Commonwealth v. Parmenter, (5 Pick. R. 279,) it was held to be “ clear, from authority, the of- “ fence of forging in the county,” (the note bearing date at a different place,) “ cannot be inferred from the fact of uttering “ and publishing in the county.” And the verdict was set aside, on account of the defect of proof, in this particular, (and see Russ. on Cr. 390.) These authorities are decisive of the present question. The deed purports to have been made in the county of Harris, representing the grantor as a resident of Galveston, and the grantee, the party charged with the forgery, as residing in the county of Milam; and there was no evidence of the residence of the accused elsewhere than as described in the deed ; and no other evidence of the making of the deed in the county of Anderson, where the venue is laid, than the uttering of the deed, or having it recorded in that county. It is clear, therefore, upon the authorities cited, that the evidence was not sufficient to warrant a conviction of the offence of forgery, or making the deed, in the county where the venue was laid. If the indictment had been for the uttering, instead of the making of the deed, it would have been otherwise ; for it cannot be doubted that the recording of the deed by the grantee, was evidence sufficient of the uttering, or, in the language of the Statute, using the deed as true, though not evidence of the forging.

We are referred by the Attorney General, to the case of the United States v. Britton, (2 Mason, 464,) which is relied on as an authority to support the conviction in this case. But it will be evident, by a mere statement of the case, that it cannot be successfully invoked for that purpose. A check was drawn in Philadelphia on Boston, in favor of the prisoner, who was then in Philadelphia, and who afterwards produced the check, altered, in Boston, and there being no evidence that it was altered elsewhere, it was held prima facie evidence that it was altered in Massachusetts, that being the first place where it was known to be altered. The question was not as to the place of making, but of the alteration of the note; and there was nothing on the face of the note or extrinsic, showing or purporting that the alteration was made at the place of the making of the note, or that it was made elsewhere than in Massachusetts, where it was payable, and where the party produced it altered. There was, therefore, an absence of any evidence whatever, of the place of the alteration of the note, other than that which was afforded by the production of it in its altered state. 'And that was held, and rightly, as evidence sufficient to warrant the inference that it was altered there. This case, therefore, does not differ in principle from the cases before cited. In the case cited from 5 Pickering, I apprehend it would not have been held that the fact of uttering the note in the county was not sufficient to warrant the inference that it was made there, if it had not appeared, on its face, to have been made elsewhere: a fact which, though evidently very natural, the reporter seems inadvertently to have omitted to note, and which, consequently, is not noted in the references to the case, in the notes to the American editions of the elementary works on Criminal Law, to which we have had reference. I do not doubt that, if the deed, on its face, had not purported to have been made in a different county, and there had been no extrinsic evidence on the subject, the jury might have inferred that it was made where the venue was laid in the indictment, from the fact that it was uttered there. But it is very clear that that is not sufficient, where the instrument purports on its face that it was made elsewhere, and there is nothing to counteract the prima facie presumption, arising from the face of the instrument, that it was actually made where it purports to have been made. Neither the opinion of Judge Story in the case cited by the Attorney General, nor any case that we have been enabled to find in the books to which we have access, warrants a contrary opinion. We conclude, therefore, that on this ground the judgment must be reversed. And this opinion might have dispensed with the necessity of considering the other questions in the case, were it not that, upon another trial, the same questions may again arise for adjudication, and their present disposition may supersede the occasion for a second appeal, or at least a reconsideration of the same questions in case of another appeal.

It is not material to determine whether the Court erred in excluding the notarial certificate attached to the deed. It formed no part of the instrument alleged to have been forged; and the testimony of the notary himself, it would seem, would have been better evidence of any material fact, which it was proposed to prove by it, than his certificate.

Nor is it material to revise the rulings of the Court, upon instructions to the jury. It may be proper to observe, however, that in so far as the charge assumes, and leaves it to the jury to infer, from the terms in which it is expressed, that they were at liberty to find that the signature to the deed was in the hand writing of the accused, it may well be questioned whether it was not calculated to mislead, as there was no evidence upon that point. An examination of the facts, in reference to the charge of the Court, has suggested a doubt whether, in making up the statement, some of the evidence was not inadvertently omitted. Be that as it may, the case must be-here determined upon the evidence contained in the record. We need only add that we attach no consequence to the use of the word “ rumor,” in the statement of facts, in reference to the evidence of the death of the person by whom the deed professes to have been made. That word was evidently the word chosen by counsel in drawing up the statement. If used by the witnesses, it doubtless was in the sense of reputation or report, and it is not material what word the witnesses used, as it is very clear what they meant.

For the reasons before stated, we are of opinion that the-judgment be reversed, and the case remanded for a new trial.

Reversed and remanded.

Case Details

Case Name: Henderson v. State

Court Name: Texas Supreme Court

Date Published: Jul 1, 1855

Citation: 14 Tex. 503

Court Abbreviation: Tex.