29 W. Va. 147 | W. Va. | 1886
On the 4th day of June, 1885, John B. Henderson was in the Circuit Court of Upshur county indicted for forgery. On the 17th day of February, 1886, the prisoner demurred to the indictment, which demurrer was overruled; and thereupon the prisoner pleaded not guilty. On the 11th day of January, 1886, the trial of the prisoner before a jury commenced; and on the 23d day of the same month the jury rendered a verdict of “ guilty as charged in the indictment.” Whereupon the prisoner moved the court to set aside the verdict and grant him a new trial on the ground of erroneous rulings by the court during the trial as set forth in twenty-four bills of exceptions, which motion the court overruled; and the defendant excepted. The court then sentenced the prisoner to be confined in the penitentiary of the State for the term of two years.
To this judgment the prisoner obtained a writ of error.
Neither the evidence nor the facts are certified. The errors, of which the prisoner complains, are saved in his several bills of exceptions, which will be considered se ■ riatim.
The first error assigned is the overruling of the demurrer to the indictment. The indictment is good. The same particularity in the framing of indictments, that was required at common-law, is not now required. Sec. 6 of chap. 158 of the Code provides, that “ in a prosecution for forgery or uttering or attempting to employ as true any forged instru
The first bill of exceptions is to the refusal of the court to quash the indictment, on the ground that Alexander Higgs, one of the grand-jurors, who found the indictment, was not a freeholder, at the time the indictment was found. The prisoner in support of his motion offered to introduce evidence to establish that fact; but the court overruled the mo
The court did not err to the prejudice of the prisoner in examining on oath the juror, Crawley, touching his citizenship. It seems from the exception, that, after the jury was sworn, the State moved the court to examine Crawley on oath to ascertain, whether he was a citizen of the State, which the court did and being satisfied of his citizenship pei% mitted him to remain on the jury. This could not possibly have prejudiced the prisoner. What would have been the effect, if the court had been satisfied, that he was not a citizen of the State, and had required him to stand aside and had filled his place with another, is not raised and will not be decided.
The third bill of exceptions is to the admission of a copy of the deed from J. B. Henderson to Ebenezer Leonard for a tract of one hundred and seventy-three acres of land. This deed seems to be the one described in the bill of J. B. Henderson, which is set out in exception No. 11 and will be considered, when we discuss that bill of exceptions.
The fourth bill of exceptions is to the admissiomof the note described in the receipt set forth'in the indictment. This exception is not insisted on here; and the evidence was manifestly proper.
The seventh bill of exceptions sets out the facts, questions and answers, as they appear in the fifth and sixth bills, and then this further question asked of the same witness — “State whether or not a settlement was made between you and John B. Henderson, the prisoner,in which the money on this note (meaning said note) was applied on the purchase-money of the land (meaning said land). If so, when and where?”— which question against the objection of the prisoner the witness answered- — “It was a settlement we made at Walter
It was not irrelevant nor prejudical ■; for, it is evident, it tends to show, that Henderson had settled for the very note, which, he afterwards tries to show, that he paid. It is one of the steps tending to show, that he had uttered the forged receipt, when he knew it was forged. The question certainly was not leading for the reasons already stated. A question to a witness in the words — “Whether or not” — is not ordinarily objectionable as leading. It may be so, if it be otherwise in such terms, as from the nature of the question in connection with its subject-matter suggest to the witness the answer desired. (Bartlett v. Hoyt, 33 N. H. 151; Leman's Case, 6 Gratt. 684.) In the Virginia case the questions were — “State whether or not you examined the horse-tracks towards Origan’s” — “State whether or not you had any difficulty in following the tracks.” In the New Hampshire case the question proposed was — “State whether or not the hay, which you saw Demarett’s team hauling to the Denham depot, was a part of the lot, you have described as sent by the plaintiff to your brother, N. Nute, in Boston.” The court said, this was not a leading question, and further : — -“It would be difficult perhaps to propose the question in terms better adapted to avoid leading the mind of the witness to the answer, without making it so general, as to fail to direct his attention to the particular, in relation to which his information was sought.”
The eighth exception is to the admission of the receipt, which was alleged to have been forged, and the purport of which is set o.ut in the indictment. It is insisted, that there is a variance between the receipt and that described in the indictment. The only particulars, in which it can be pretended, that there is a variance, are the following : The receipt is dated — “this 24th of December, 1869” — while the description in the indictment is — “this 24th December, 1869”— and the description in the indictment omits entirely these words, which appear in the receipt — “Witness—Susan M.
In Burress's Case, 27 Gratt. 934, it appeared that the indictment was for the forgery of an order; and on the order was written : “Richmond, March 5th, 1875, received of T. A. Parker & Co. forty-seven 23-100 dollars in full of this order- — Thomas Moore. ” — Moncure, P., for the court said: “Certainly the receipt at the foot of the said paper, and the absence of such receipt at the foot of said order constitute no variance. The receipt is not charged to be forged. In fact it is a genuine instrument.”
In Poindexter's Case, 23 W. Va. 811, this Court said: “This couut of the indictment did not jn'ofess to set out the tenor, which imports a verbatim copy of the check, but only its purport and effect, which means the legal effect of the instrument as a whole.”
The statute, which we have before quoted, declares : “It shall not be necessary to set forth any copy or fac-simile of such instrument or other thing ; but it shall be sufficient to describe the same in such manner, as would sustain an indictment for stealing such instrument or other thing, supposing it to be the subject of larceny.” The indictment does not profese to giv§ a copy of tjie receipt but describes it as
Bills of exceptions Nos. 9,10,11,12 and 13 are to the admission in evidence of parts of the record in a chancery suit of J. B. Henderson against Ebenezer Leonard and others. Bill No. 9 is to the admission of the bill in said cause — No. 10 to the answer of Leonard and order filing the same — No. 11 sets out the bill, answer of Leonard, the general replication to the answer, the special replication of Henderson to the answer, to the introduction of which special replication the prisoner excepted. No. 12 is to the admission of the order of reference in said cause. No. 13 is to the deposition of Susan M. Armstrong taken in said cause. This bill among other things alleges the sale of a tract of land by Henderson to Leonard and the execution by Leonard of certain purchase-money-notes ; that on the 1st day of April, 1869, he conveyed to Leonard a tract of 173 acres of land retaining a vendor’s lien, which deed purports to be filed marked Exhibit “0.” He says, for this sale no bonds or notes were delivered to him by Leonard. He prays that a survey of the two tracts of land may be had in order that their true boundaries may be ascertained, and that the metes and bounds of said land may be corrected, and that the land may be sold to pay the purchase-money. The answer of Leonard among other things after averring the payment of large sums of the purchase-money says : “That on the 7th day of September, 1873, he held against the plaintiff the following. notes, bonds and claims other than those herein mentioned, to-wit: A note executed by plaintiff to defendant dated the 2Sd day of June, 1869, calling for $740.00 payable one day after its date,” &c. He then sets up a settlement made between them, in which, he says, it was agreed,
The case was referred to a commissioner on the 13th day of June, 1882, among other things to ascertain and report; “ What balance of purchase-money remains due from said Leonard to the plaintiff after applying payments and sets-off, to which he is legally entitled.” On the 11th day of January, 1885, a notice of Henderson to Leonard to take the' deposition of Susan M. Armstrong was served. Pursuant to-said notice her deposition was taken on the 26th day of January, 1885, before Phil. A. Lorentz, a justice, who certified the same. The receipt described in the indictment with the words thereon — ■“ Witness — Susan M-. Armstrong,” was shown to the witness ; and she was asked to examine it and state, whether she witnessed it or not. She answered: — “I have examined said writing and recognize my signature as- a witness thereto and remember of seeing the receipt drawn and seeing Ebenezer Leonard sign his name to the same.” The next question was : — “ At whose instance did you witness said wilting ?” She answered: — “ I don’t remember, at whose instance I witnessed the said writing; but I remember Mr. Ebenezer Leonard and my brother, John B. Henderson, were both present, when I witnessed said writing; and I here file said writing as part of my deposition marked Exhibit S.”—
It must be remembered, that the indictment is not for forgery but for “ feloniously uttering and attempting to employ as true ” the forged receipt knowing it to be forged. Of course in the trial of the prisoner the State Avould have to prove beyond a reasonable doubt, that the receipt Aras a forgery. It must be supposed, that that was done, as neither the facts nor the evidence is certified. The State Avas also bound to prove beyond a reasonable doubt, that the prisoner knowing, that the said receipt was forged “ feloni-ously uttered and attempted to employ it as true.” The record objected to was evidence tending to prove, that Henderson did utter and attempt to employ as true said receipt. This is shown by the deposition of Susan Armstrong taken in the chancery suit. She swears, that the receipt was genuine in answer to questions written by the prisoner. He had the receipt filed with her deposition and returned thereAvith and filed in the chancery cause. If the State could not use this record, it might entirely fail to elicit the truth. W e can see no objection to the evidence. It Avas an act of the defendant deliberately done, which tends to prove the very fact in issue. Every thing said or done by the accused in the prosecution of said attempt to utter the receipt and employ it as true with the knowledge of its forgery'for the purpose of obtaining credit for the money mentioned in the receipt was “an attempt to employ as true” such writing within the meaning of the statute. (Cahoon’s Case, 20 Gratt. 794). In Sands’s Case, 20 Gratt. 800, there was a forgery of the name of Haunstein, a foreigner, to a bond payable to one Thompson. Suit Avas brought on the bond after Haunstein’s death, and judgment Avas recovered. A chancery suit Avas
The court below did not err in admitting the several portions of the record excepted to, nor in admitting the deed mentioned in the Bill of Exceptions No. 3. It was referred to in Henderson’s bill and was so connected with the charge, as to be relevant and proper evidence.
Bills of Exceptions Nos. 14,15,16 and 17 are to the permission given by the court to witnesses J. J. Morgan, Levi Leonard, Ashley Gould, and Wealthy Leonard respectively to write the letter “ L ” in the presence of the jury, as they, the witnesses, thought Ebenezer Leonard wrote it, and show it to the jury, and for the jury to compare the letter written by each of these witnesses with the “ L ” in Leonard’s name signed to the receipt alleged to be a forgery. The objection urged to this is, that it is a comparison of handwriting by the jury, which, it is alleged, is not allowable, and the following authorities are cited: Rowt v. Kile, 1 Leigh 216; Burress's Case, 27 Gratt. 946; Clay v. Alderson, 10 W. Va. 50. It is true, as these cases hold, that it is not allowable to lay other proved but not admitted specimens of the party’s handwriting before the jury for the purpose of permitting them to judge by a comparison thereof with the signature in question, whether the said signature is not genuine. But here no such thing was permitted. The jury was not asked to compare different signatures of Leonai’d with his name signed to the alleged forged receipt. The witnesses were only asked to write an L” as they thought Leonard wrote it, so that the jury could the better understand the testimony. If a jury do not have a clear idea of the location of aplace, where an act is alleged to have been done, no one doubts the right of a party to have a witness describe the place and by a word-painting of it and its surroundings make its location clear to the minds of the jury. What objection then can there be to the permitting of the witness to make
The bills of exceptions Nos. 18 and 19 were to the refusal of the court on cross-examination to- allow the following question to be propounded to and answered by the witnesses, Simpson and Levi Leonard: — “Are you indebted to the prosecuting witness, Ebenezer Leonard?” — Mr. Wharton (Grim. Ev. § 477) says: — “A witness may be compelled to answer questions concerning his relationship to the prosecution or defence, his interest in the suit, his capacity of discernment and expression, his motives and his prejudices. He may thus be required to explain whatever would show bias on his part or incapacitate him to testify correctly.” — In 2 Hale E. 0. 276-7 it is said : — “Exceptions to the credit of the witness do not at all disable him from being sworn but yet may blemish the creditability of his testimony; and in such case, the witness is to be allowed to testify, but the credit of his testimony is left to .the jury, who are judges of the fact and likewise of the probability or improbability, credibility or incredibility of the witness and his testimony; and these exceptions are of that great variety and multiplicity, that they can not easily be reduced under rules or instances.”
It is well settled, that on cross-examination a witness may be examined as to his animus towards the party, against whom he is giving testimony, and as to any statements made by him indicating feelings of hostility to the party, against whom he is called; and, if he denies making any such statements, they may be proved by other witnesses. (Newton v. Harris, 2 Seld. 345; Drew v. Wood, 6 Foster 363; Martin v. Farnham, 5 Foster 195; Atwood v. Welton, 7 Conn. 66; Long v. Lamkin, 9 Cush. 361; Harris v. Tippett, 2 Campb. 537; Day v. Stickner, 14 Allen 255; Bixby v. The State, 15 Ark. 395; Fincher v. The State, 58 Ala. 215; Blessing v. Hope, 8 Md. 31.) If there is peculiar friendship for the party, for whom he is called, that may be shown on cross-examina
In Hutchinson v. Wheeler, 35 Vt. 330, it was held, that, where a witness on the part of the plaintiff 'was asked on cross-examination, if the plaintiff had not assisted him in a lawsuit, which the witness had had with the defendant, it was not only held competent, but also that the defendant could contradict the answer of the witness, that he had not had such assistance from the plaintiff.
Where in the trial of several defendants on an indictment for riot it appeared, that a secret society had been organized for the purpose of repressing the class or sect, to which the de fendant belonged, it was held to be competent to require a witness, who had been called and testified on the part of the prosecution, to answer on his cross-examination, whether he was a member of such secret society. (The People v. Christie, 2 Park. Cr. Rep. 579.)
In general terms in Ray v. Bell, 24 Ill. 444, it was held,
It of course is competent to show on cross-examination, that the witness is interested in the result of the suit. (- v. Bonnell, 33 Wis. 180.)
In Winston v. Cox, 38 Ala. 268, it was held, that in cross-examining a witness for the purpose of testing his credibility it is permissible to investigate his situation in reference to the subject-matter o'f the suit, his relations towards the parties, his interests, prejudice and motives ; and if it appears, that his testimony tends to relievehim of the imputation of negligence in connection with the subject-matter of the suit .and was in conflict with the testimony of other witnesses, the appellate court will not reverse on account of the latitude allowed in the cross-examination, unless the record plainly shows, that an improper indulgence was given. To same effect is Stondenmeier v. Williamson, 29 Ala. 558.
In Newcomb v. The State, 37 Miss. 383, it was held, that it is a general rule, that anything legitimately tending to show, that a witness is under undue feeling or bias for or against a party to the issue, may be shown to the jury to enable them properly to weigh his testimony; and that this rule applies to statements made and acts done by the witness in relation to the subject-matter of the issue, and which shows bis bias or feeling towards a person involved in the transaction, which gave rise to the issue; and hence in a trial for murder a witness for the defendant may be asked by the State, if she did not say to a person designated and at a time men-tionedthat, if the accused did not Mil the deceased, she would not own him. for her son.
It was said by the Supreme Court of California : “ We are inclined to agree, that courts are apt to take a too narrow view of the rights of the examiner in such cases and to give too extended a scope to the rule, that a cross-examination is to be confined to the subject-matter of the evidence in chief. Undoubtedly the cross-examination can not go beyond the matter ; but it ought to be allowed a very free range within
We have made quite an extensive review of the authorities on this subject and have discovered upon what Mr. Wharton founded his text; yet we have"failed to find a single adjudicated case, in which it has been held, that, even where a witness in a civil case has been examined, the question has been asked on cross-examination, whether the wit-, ness was indebted to the person calling him. There might be a case, in which such a question under the general rule would be proper. If an action were brought against a per-: son to recover a large sum of money on a note or bond, and the defendant pleaded non est factum, and a witness was called for the defendant, to whom the defendant owed a large sum of money, the collection of which might be very doubtful, unless the plea was sustained, we do not say, it would not be proper in such a case to permit the witness to be asked on cross-examination, whether the defendant did not owe him a large sum of money, which he would be in danger of losing, if the plaintiff recovered. But even in a case like that, I cannot see, how the witness would be liable to bias in the defendant’s favor because he owed the defendant, nor what good purpose would be promoted by asking the witness on cross-examination, if he owed the defendant. If it would be proper in such a case, could it be extended to a criminal prosecution, and he be asked, if he owed another witness, to-wit, the prosecuting witness. If such a question were proper, and the wfitness should answer, that he was indebted to him, then of course it would be proper for the other party to ask him, how much he owed, and whether he had the means of immediate payment, &c., so as to show, that his embarrassment from the debt could have no effect on the testimony he might give. It seems to me, that such evi-
In this case Ebenezer Leonard can not with any propriety be called the prosecuting witness. For aught that appears in the bill of exceptions, Leonard was entirely indifferent as to the result of the prosecution. For aught that appears in these two bills of exceptions, it may have been the desire of Leonard, that the defendant should be acquitted. We can not look to any other bill of exceptions to aid us in deciding the question raised in these two, as no others are referred to therein. Leonard was not the prosecutor and in a felony-case could not be.- He was not responsible for costs; and the conviction of Henderson could not aid him in his civil .suit, if he had one. He may have received all the satisfaction in such suit, that he desired. In certain misdemeanor cases the party complaining may be required to enter himself as prosecutor. The Code, sec. 2, chap. 158, provides: “In a prosecution for a misdemeanor the name of the prosecutor, if there be one, and the county of his residence shall be written at the foot of the in-eseiitment or indictment, when it is made or found ; and for good cause the court may require a prosecutor to give security for the costs, and, if he fails to do so, dismiss the prosecution at his costs.”
There can be no requirement for a prosecutor or any security for costs in a felony-case. Therefore Leonard stands in this case like any other witness. He is not a party to the prosecution and has no pecuniary interest in it; and from the facts disclosed in the two bills of exceptions we can see no propriety whatever in permitting him to be asked, whether or not he was indebted to another witness in the case. In the light of the authorities the words of Mr. Wharton (Grim. Ev., §477): — “A' witness may be compelled to answer questions concerning his relationship to the prosecution or the defence” — must be understood to mean not the prosecuting witness but the State, which is always the party prosecuting a felony-case.
The general rule evolved from the cases, which we have cited, is applicable to bias &c. towards one of the parties to
Bill of exceptions No. 20 is to the following-question asked witness Vincent: — “On or before the 24th day of December,. 1869, what was John B. Henderson’s pecuniary condition?” —and to the following answer by Vincent: — “In 1868 he” (meaning John B. Henderson) “owed me some money, that he said he could not pay me; but in March he paid me a little. He told me in 1869, he had no money.” — December 24, 1869, is the date of the alleged forged receipt. In Chahoon's Case, 20 Gratt. 733, and in Sands's Case, Id. 800, it was held on the trial for the forgery of a bond of one, who was then dead, that it was competent to prove, that he, whose name was alleged to have been forged to the bond, was prompt in the payment of his debts, and that he owned large property real and personal and was doing a good business. For the same reasons it was competent in this case before us to prove, that he, in whose favor the alleged forged receipt was drawn showing the payment by him of a large sum of money, was at. the date thereof in such embarrassed circumstances,,
Bill of exceptions No. 21 was to the evidence of Henry J. Heffner admitted against objection. The question propounded was : — “State, whether, during the time you have been acquainted with the handwriting of Ebenezer Leonard, it has always been the same, or whether there has been a change in it.” The reply was : — “I say, he has always written the same hand. It has always been the same kind of a hand.” — The circumstances, in which this evidence was admitted, are not set forth in the bill of exceptions. It may be, that evidence had been introduced on behalf of the prisoner tending to prove that the handwriting of Leonard had changed. If so, there can be no doubt of the propriety of the evidence excepted to in this bill of exceptions. Nothing in the record shows, that the prisoner was or could have been prejudiced by its admission.
Bill of exceptions No. 22 was to the refusal of the court to admit the evidence of John L. Hurst. The prisoner proposed to prove by Hurst, that some time in the fall of 1885 the witness was in the office of A. M. Poundstone, prosecuting attorney of Upshur county, and in the presence of said Poundstone and Ebenezer Leonard, the prosecuting witness, was shown the alleged forged receipt and another paper-writing with said Leonard’s signature thereto, which said Leonard then and there admitted was his signature ; and he, the witness, was asked then and there to compare the two signatures, which he did, and they were almost exactly alike, so nearly alike, that one could not be distinguished from the other. — The proposed evidence was clearly incompetent. We have seen, that the same could not have been made by the jury. Certainly a witness could not be permitted to testify, that he had at another time made the comparison, and to detail such comparison to the jury.
Bill of exceptions No. 23 was to the evidence of Jonathan Heffner as to the reputation of John B. Henderson for honesty. The bill shows, that the prisoner had introduced evidence to show, that- his reputation for honesty was good;
The regular mode of examining into general reputation is to inquire of the witness, whether he knows the general reputation of the person in question among his neighbors, and what that reputation is. In the English courts the course is further to inquire, whether from such knowledge the witness would believe that person upon his oath. In the American courts the same course has been pursued. In answer to
I do not see, how it is possible, that the definition by the .court of the phrase “neighbors and acquaintances” could have prejudiced the prisoner. It is not necessary for us to determine, whether said definition is or is not entirely correct. The manifest object of the rule is to find out the general reputation of the person sought to be impeached or sustained ; and certainly where a man is well known, he has a reputation either for honesty or dishonesty. Any one, who is well acquainted with those, with’ whom such a person .associates, and who knows him well, is competent to speak of the reputation, he has among them. Heffner had this knowledge and states what Henderson’s reputation was among those, with whom he associated. Suppose the witness had answered the first question — Yes—and then stated, what the reputation was, and on cross-examination had stated the game means of knowledge, which he stated on his direct examination, his evidence would not have been excluded. It would have been left to the jury to say, what weight it ghould have. Under the circumstances shown in the bill the .court did not err in admitting the evidence.
We see no error in the judgment of the Circuit Court; and it is affirmed.
AFFIRMED.