12 Or. 99 | Or. | 1885
the several grounds of error assigned in this case, there are three which deserve especial notice, viz.: Whether the promissory note alleged to have been forged was uttered or published as true and genuine, with intent to injure or defraud anyone, within the meaning of section 592 of the Criminal Code; whether the court had the right to require the appellant, when upon the stand as a witness, to testify to facts he had not testified to in his direct examination, and to write his name, and that of Lurch Bros., and also of J. V. Thornton; and whether it was proper to recall said Thornton, after he had testified in the case that he did not sign the note, and have him write his name, to be compared with the signature on the note.
The bill of exceptions shows that a large amount of immaterial testimony was taken in the case, which doubtless protracted the trial to an unnecessary length. The question to Thornton, when on the stand as a witness, as to whether he signed his
The evidence that the signature to the note had the appearance of having been written by some one other than the person who wrote the body of the note, was, no doubt, proper, notwithstanding the appellant’s admission that he signed Thornton’s name to it as maker. His claim that he so signed it by Thornton’s direction, and that he acted in good faith, was impeached, to a great extent, by the fact that he disguised his handwriting. He signed Thornton’s name to the note, without doubt; but his pretense that the latter directed him to do so might well be questioned when the fact was made known that he attempted to imitate Thornton’s handwriting. He undertook, it is true, to explain why he tried to write Thornton’s name so as to have it appear as though Thornton wrote it himself, but it was highly proper that the jury should consider whether or not the explanation was satisfactory. It was an important circumstance, and the testimony bearing upon it was rightly submitted to the jury.
The appellant’s counsel claims that the transaction in regard to the appellant’s delivery of the note in question, with other notes, inclosed in an envelope, to Friendly as collateral security for the payment of the check drawn by the former upon Corbett & Maeleay in favor of the latter, could not, in view of the proofs, admitting the note to have been a forgery, have been intended to injure or defraud Friendly as charged in the indictment, and he cites Bish. Crim. Law, § 599, in support of his position. He claims that in order to bring the case within the section of the statute before referred to. Friendly must have parted with something of value, or have in some way obligated himself upon the faith of the particular note, in order to have been injured or defrauded. The State undoubtedly had to prove, in order to secure the appellant’s conviction, that he had made such a use of the note as might result in injuring or
The appellant knew the note had been forged, if it were forged; knew it was a mere sham, a deceit; yet he pledged it to Friendly to induce him to rely upon it. He could not, therefore, avoid the charge that he intended to injure or defraud; the act, in itself, was a fraud. Under this view the court below properly submitted the case to the jury under the instructions given, and committed no error in refusing the instructions asked by the appellant’s counsel.
The Circuit Court, however, did commit error in permitting counsel for the State to examine the appellant, when upon the witness stand, upon matters not testified to by Mm in his evidence in chief, and in requiring him to write his name and other names, as before suggested. The statute of the State, which allows the accused in such a case to be a witness, provides that when he ofters his testimony as a -witness in his own tfehalf, he pbn.ll be deemed to have given to the prosecution a right to cross-examine him upon all facts to which he has testified, tending to Ms conviction or acquittal. (Laws 1880, pp. 28, 29.) But this
It was error, also, to allow the witness Thornton to be recalled to write his name, in order to compare it with the signature to the note. He had testified that it was not his signature, and that was as far as counsel for the State should have been permitted to pursue the subject. He was supposed to have told the truth when he said under oath that he did not sign the note. He could not then be allowed to prove or attempt to demonstrate that he had told the truth. Such practice might, perhaps, be permitted upon cross-examination; but it is not proper for the party who calls the witness to undertake to bolster up his evidence in that way.
These errors do not appear to have prejudiced the appellant, and this court, ordinarily, will not reverse a judgment, in such a case; but where the error consists of an infraction of a constitutional guaranty in favor of personal liberty, such as the compelling a party accused of a crime to be a witness against himself, the law will presume an injury, and the court have no alternative but to adjudge accordingly.
The judgment appealed from will therefore be reversed, and the case remanded for a new trial.