66 Ind. 331 | Ind. | 1879
This was a prosecution against Morris Robinson, for forging the name of Diamond King to a promissory note.
The note was set out in the indictment, as follows :
“ $96. Sheldon, Ind., August 23d, 1878.
“ Six months after date, we, or either of us, promise to pay to the order of Andrew J. Taylor ninety-six dollars, payable at Fort Wayne Rational Bank, Fort Wayne, Ind. Value received, with exchange on New York, and attorney’s fees at ten per cent., without any relief whatever from valuation, appraisement, stay or exemption laws, with interest annually at ten per cent, until clue, and ten per cent, after due. The drawers and endorsers severally waive presentment for payment, protest, and notice of nonpayment. Ro interest from date, if paid at maturity. If paid before maturity, ten per cent, interest to be deducted from the face of this note from time of payment until due, date of this note.
“P. O. Po, Morris Robinson. [Seal.]
“ Allen County. Diamond Kino. [Seal.]
“ Ro.-. Due Feb. 23d, 1879.
“ May pay Oct. 20th, ’78.”
Several errors are assigned hei’e upon the proceedings below, hut only one is so assigned as to raise any question in this court, and that one is upon the overruling of the appellant’s motion for a new trial. All the others fall 'under the general head of causes for a new trial merely, and consequently do not constitute proper assignments of error. Buskirk Prac. 126, 127 ; Bridgewater v. Bridgewater, 62 Ind. 82; Myers v. Murphy, 60 Ind. 282; Houston v. Bruner, 59 Ind. 25 ; Compton v. Crone, 58 Ind. 106 ; Grant v. Westfall, 57 Ind. 121.
Andrew J. Taylor, the payee of the note, testified upon the trial, that he wrote the words, “ May pay Oct. 20th, ■’78,” on the margin of the note for his own convenience, after the note was executed and delivered to him, such words having reference to the time at which the appellant said he expected to he able to take up the note.
The appellant objected to the introduction of the note in evidence against him, upon the ground that this evidence of Taylor showed a material variance between the note executed and delivered to Taylor and the note set out in the indictment. The note was, nevertheless, admitted in evidence over the appellant’s objection.
That ruling was not, however, assigned as a cause for a new trial, and for that reason the appellant’s exception to it has been waived. Sharpe v. O'Brien, 39 Ind. 501.
The court upon its own motion instructed the jury, in substance, that if they found that the note introduced ^n evidence was due' at a different time, and payable upon different terms, from the note described in the indictment, such a variance was material, and would acquit the de
The’ appellant contends that so much of this instruction as expressed the opinion that the alleged variance was immaterial, provided it appeared .that Taylor had written the words, “ May pay Oct. 20th, ’78,” on the margin of the note, as stated by him, was erroneous.
We can not see that the appellant has any cause'to complain of this instruction.
We think that by its terms the note set out in the indictment might have been paid at any time before its maturity, and hence might have been paid on the 20th day of October, 1878. The addition, therefore, of the memorandum that it might be paid on that day, whether made before or after the execution of the note, appears to us neither to have added any thing to, nor to have subtracted any thing from, the terms or stipulations of the note ¡as set out in the indictment, and to have constituted an immaterial variance in any view in which the case was presented to the jury.
There was also evidence tending to show that the note set out in the indictment was executed for the alleged purpose of securing the payment of the price of a buggy sold by Taylor to the appellant at a public sale, on a credit of six months, and that the appellant had previous
Touching that branch of the evideuco the appellant asked the court to instruct the jury as follows :
. “ Any evidence, if any, before you in this case, showing or tending to show any former unlawful acts or forgeries by this defendant, should not be considered by you for the purpose of showing the guilty intent of the defendant in this ease.” This instruction was given by the court but with the following modification : " “ But the forgery of any other note connected with the purchase of the wagon by the defendant of Andrew J. Taylor, if proved beyond a reasonable doubt, may be taken into considei'ation for the purpose of showing such guilty intent.” To which modification the appellant excepted.
The appellant asked the court to further instruct the jury, that “ If there is in this ease any evidence tending to show that the defendant, at any other time, was charged with, or had committed, any other forgery, it is your duty not to consideritas evidence tending to show, or showing, that the defendant committed the offence charged in the indictment in this case.”
The court also gave this instruction, but with a modification, substantially, if not precisely, in the same language as the modification to the previous instruction above set out. To this modification the appellant also excepted.
The appellant further contends, that the court erred in the modifications it thus made to both the instructions asked by him as above set forth, and that the'action of the court in that respect can not be sustained, either upon principle or authority.
No- sufficient cause has been shown for a reversal of the judgment.
The judgment is affirmed, at the’appellant’s costs.'