151 Ky. 517 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
James Smith was indicted, tried, and convicted, in the Bell circuit’court, for uttering a forged check. He seeks a reversal here upon two grounds: First, because of error of the trial court in refusing to permit an affidavit to be read as the deposition of an absent witness; and second, because the evidence does not support the verdict.
When the case was called for trial, appellant filed his own affidavit stating that Vic. Dillard and Tom Smith were important and necessary witnesses in the presentation of his defense, and that they were absent without his knowledge, procurement or consent. The affidavit then set out what each would testify to. The court permitted the affidavit, relative to what Vic. Dillard would
The next, and indeed the chief, ground relied upon by counsel -for appellant for reversal is that the evidence does not support the verdict of guilty. In order to make out its case, it was incumbent upon the Commonwealth to show: First, that the check was .forged; and second, that it was passed or put into circulation, which is uttering, by appellant. The witness, Fred Lester, testifies that, in the month of December, 1911, he met appellant in Pineville, and, while they were together in Pfoilpot’s restaurant, appellant gave him the check in question and
The only remaining question is, does the evidence show that the -check was forged? It was drawn by Thomas Smith. The witness, R. E. Samuels, who was -assistant cashier of the bank on. which the check was drawn and in which Thomas Smith kept his accounts, at the time this check was put into circulation, was familiar with the handwriting and signature of Thomas Smith. He testifies that, when the check was presented for payment by the managers of the Hub store, he declined to pay, because the signature was not that of Thomas Smith, and he so notified Mr. Manekin. No witness testifies that the signature is that of Tom Smith. Appellant, Tom Smith’s brother, does not state that the signature is that of Tom Smith, ¿nd denies having signed it himself, so that, if the testimony of Lester is true to the effect that appellant gave him the check, with the name or Thomas Smith signed thereto, and the signature is not that of Thomas Smith, it was incumbent upon appellant either to show that Thomas Smith did sign his name to the check or authorize some one else to so sign it for him. With the evidence in this condition, it was incumbent upon appellant to explain how he came into possession of the check; but, instead of attempting to do so, he contents himself with the statement that he did not deliver it to Lester and knew nothing of its existence. The witness, George H. Reese, a handwriting- expert, testifies that the name, Thomas Smith, to the check, was written by the same hand that endorsed the name of Joe. Willis on the back of the check, and that both of these
No ground being presented upon which a reversal could be rested, tbe judgment is affirmed.