115 N.W. 84 | N.D. | 1908
Lead Opinion
The defendant was convicted of the crime of forgery in the third degree, and sentenced to imprisonment in the penitentiary for the period of one year and six months. The offense is charged in the information to have consisted in fraudulently and feloniously uttering a certain road overseer’s receipt, knowing that the same was a forgery, which said receipt is in the following words and figures: “Road Overseer’s Receipt, North Dakota. $231.30. Minot, Sept. 8, 1904. Received of the Great Northern Railway Company, two hnudred thirty-one 30-100 dollars, in full payment of road taxes levied against its property for year 1904 in Road District No. 1 and 2, township of Ross, county of Ward, North Dakota. Paid in labor upon the public highways of said road district by - days work by man and team, and -clays work by man. Wm. Crowden, Overseer of Plighways in Road District-No. 1 and 2, Ross Township, Ward County, North Dakota.” In the information it is further alleged that in the year 1904 the Great Northern Railway Company was indebted to Ross township in Ward county, N. D., in the sum of $231.30 for road taxes assessed against its property in said township for that year; that one Wm. Crowden was the road overseer of said township, and was authorized to collect taxes from said company and to receipt for the same, and that the defendant was authorized by said Great Northern Railway Company to pay said road taxes by doing work upon the highways of said township pursuant to a contract between him and said railway company, under the terms of which the said company agreed to pay said defendant the amount of said taxes upon presentation to said company of the road overseer’s receipt for the full amount of said taxes. Upon this appeal there are many assignments of error, as the trial was a protracted one. The appellant, however, has argued only five assignments of error, and we will only dispose of those that have been argued in the brief. Upon the trial the defendant admitted, that the name of Wm. Crowden, or Wm. Crowder, as it is sometimes spoken of in the evidence, was not signed to said receipt by said Crowden or Crowder, -but that the same was signed thereto 'by the defendant himself or by his office clerk under his instructions. On the trial the state, under objection, was permitted, to show that num
The contention of the state is that such evidence was proper as bearing upon the intent with which the defendant uttered the receipt in question. The statute which it is claimed was violated in this case provides that the uttering of the forged instrument or receipt must have 'been done with intent to defraud. It therefore follows that, if Crowder authorized the defendant to sign his name to said receipt upon receipt of the money, no offense would be committed in uttering it by presenting it to the railway company in order that he might be reimbursed, as provided for by his contract with the railway company. As has been seen, this contract provided that the defendant was to be paid by the company a certain proportion of the amount assessed against it in any township upon presenting and turning over to it a valid receipt from the proper township officer that the road taxes assessed against said railway company had been fully paid by work upon the highways of said township in compliance with the statute permitting such taxes to be liquidated in such manner. The contention of the state is that the Crowder receipt was forged and presented to the railway company, and the money drawn thereon with intent to defraud the company. The defendant’s contention is, as stated before, that Crowder authorized him to sign the receipt, and that he drew the money thereon in good faith, and without any fraudulent intent whatever. The trial court admitted evidence that the defendant had drawn money from the Great Northern Railway Company upon presentation of receipts purporting to have been signed by the road overseers of other townships in Ward county. These other receipts were in like terms with the receipt described in the information, excepting as to the date, the name of the township, the amounts, and the names of the persons purporting to have signed the same as road overseers, and some of the receipts were
By admitting the signing and uttering of the receipt, the defendant did not, of course, admit as a fact that the uttering of the receipt was with a fraudulent intent. Whether this was done fraudulently or in good faith was not and is not ordinarily in such cases capable of proof by direct evidence, nor would it necessarily follow that the defendant uttered the receipt fraudulently, although the jury may have been justified by the evidence in finding that the defendant was not authorized as a matter of fact to sign Crowder’s name to the receipt. The legal inference that a person is presumed to intend the natural consequences of his acts, which is sometimes conclusive, is not necessarily of itself of much force in cases of uttering forged paper. For this reason it is generally held that proof of similar acts of forgeries, or of uttering of forged paper, is admissible as bearing alone on the question of the intent with which the forgery or uttering of forged paper for which the defendant has been informed against was forged or uttered. Such collateral proof must be limited within such a period that it may naturally be seen to throw light as to the intent with which the act under investigation was committed. The question of time during which other acts may be proven seems to be largely within the trial court’s discretion. Such collateral proof is never admitted as proof of the commission of the criminal act for which the defendant is on trial. Such evidence of collateral facts is irrelevant and inadmissible as proof of the commission of the crime in question, on the theory that the person on trial is a hardened criminal and has committed other crimes. The law takes cognizance of the fact that criminals may not be guilty of all the crimes with which they may
In Stephen’s Digest of Evidence, art. 11, the rule is laid down as follows: “When there is a question whether a person said or did something, the fact that he said or did something of the same sort on a different occasion may be proved, if it shows the existence on the occasion in question of any intention, knowledge, good or bad faith, malice, or other state of mind, or of any state of body or bodily feeling, the existence of which is in issue, or is deemed to be relevant to the issue.” Wharton’s Criminal Law (6th Ed.) section 649, says:' “Where the scienter or quo animo is requisite to, and constitutes a necessary and essential part of, the crime for which the person is charged, and proof of such guilty knowledge or malicious intent is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distict crime.” In 7 Am. & Eng. Enc. Law ,p. 62, it is said: “When there is a question whether the act was accidental or intentional, the fact that such act formed part of a series of similar occurrences in each of which the person doing the act was concerned is deemed to be relevant.” In 3 Greenleaf on Evidence, section 15, it is said: “In the proof of intention, it is not always necessary that the evidence should apply directly to the particular act with the commission of which the party is charged, for the unlawful intent in the particular act may well be inferred from a similar intent proved to have existed in other transactions done before or after that time.” In People v. Everhardt, 104 N. Y. 595, 11 N. E. 64, it was said: “Upon the trial the people were allowed to prove against the objection of the defendant the uttering of other forged checks by him upon other occasions. In this there was no error. The defendant by his plea of not guilty had put in issue everything which it was incumbent upon the people to prove. They had no direct or positive evidence that he personally forged the check which he uttered, and it was open for him to show that at the time he uttered it he had no knowledge that it
The intent to defraud may not have been proven beyond a reasonable doubt in the minds of the jury, although they may have been satisfied that the proof showed beyond such doubt that Crowd-er did not authorize the defendant to sign his name to such receipt. It might well appear that the defendant believed that he had such authority, although he had none as a matter of fact. A mistake or misunderstanding may and often does occur that.
Although the other similar offenses were not connected with the offense with which the defendant was charged, still they were of a similar general character, and related to a general plan or system in procuring money through means of dealings between railway companies and township officials in reference to road taxes. They were therefore substantially similar offenses, although they concerned different persons. One McAllister was a witness in the case, and was one of the overseers of highways with whom the defendant had dealings as to working out the taxes assessed against the Great Northern'Railway Company in one of the townships of Ward county, and gave one of the receipts which it is claimed was afterwards altered and the amount increased. The receipt was given and some money paid, and all the conversation in reference to the making of the contract took place between the defendant and said McAllister at the buggy in the highway in front of one Schorb’s dwelling house, and from 50. to 100 feet from the house. The conversation was not had in the presence of any one besides the persons named. After the contract was made, the receipt signed and some money paid thereon, the defendant drove away, and McAllister returned to the house, and had a conversation with Mrs. Schorb, who was a witness in the case, and was asked the following question: “When he came in, did he make any statement as to what transaction had occurred outside with Major Murphy?” And the witness was allowed to state what McAllister said, and did so as follows: “ 'We are in luck. We have $167 to spend in Surrey township on the roads.’ Then, after we talked, he said he didn’t have it all to spend now, but he had in part. I think he said 'in part.’ About $55 he had in .his hands. I think he pulled the money out of his pocket, and laid it on the table. I don’t think he had the money in his hands when he came in from outside.” The question was objected to as hearsay, and no part of the evidence of a competent transaction. On the trial there was a disagreement between McAllister and the defendant as to what transpired between them while the contract was entered into at the buggy in which the defendant was seated; and especially as to the sum of money then paid to McAllister by the defendant. The state contends that the testimony of the witness as to what
After the jury had been deliberating on their verdict for about forty-eight hours, the trial judge was sent for by the jury, and he appeared pursuant to such request, and the following proceedings were had as stated by the trial judge in the settled statement of the case: “At some time between the hours of 8:30 and 9 o’clock on December 3, 1906, the said Honorable Chas. A. Pollock, on coming to' the courtroom and his chambers and being informed that the jury or some of the jurors desired to communicate with him,
As to the purity of the intentions of the judge in going into the jury room in this case, and there having the 'brief communication with the jury, no certificate or proof is necessary so far as this court is concerned, as it well knows that his uprightness and sincere desire to be absolutely just and fair in all cases are beyond question. That admitted fact, however, does not meet the ques
In State v. Wroth, 15 Wash. 621, 47 Pac. 106, the court said: “In the discharge of his official duties, the place for the judge is on the bench. As to him the law has-closed the portals of the jury room, and he may not enter. The appellant was not obliged to follow the judge to the jury room in order to protect his legal rights, or to see that the jury was not influenced by the presence of the judge; and the state cannot be permitted to show what occurred between the judge and the jury at a place where the judge had no right to be, and in regard to which no official record could be made.” In Hanover v. State, 125 Wis. 444, 104 N. W. 116, the court said: “These rights are clearly of an important nature, and effect the substance of a jury trial and the right of a party to be heard or to bring in review: every transaction of the court’s proceedings. For the attainment of the best administration of justice, the law requiring that all proceedings of courts be open and public, and in the presence of the parties or their representatives, must be strictly enforced; and, in case of any infringement of this policy, parties are not to be put to the burden of showing that it m fact injured them, even though it be manifest that no improper motives prompted the acts complained of.” In Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am. Dec. 185, the court said, speaking through Mr. Chief Justice Parker: “As it is impossible, we think, to complain of the substance of the communication, the only question is whether any communication at all is proper; and, if it was not, the party against whom the verdict was is entitled to a new trial. * * * No communication whatever ought to take place between the judge and the jury, after the cause has been submitted to them by the charge of the judge unless in open court. * * * The only sure way to prevent all jealousy and suspicion is to consider the judge as having no control whatever over the case except in open court in the presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the inconvenience of the jurors is of small consideration compared to this great object. * * * It is better that everybody should suffer inconvenience than that a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness
The other questions argued in the brief will not probably arise on another trial. Hence consideration of them is not material.
The judgment is reversed, a new trial granted, and the cause is remanded for further proceedings.
Concurrence Opinion
(concurring specially). I concur in the reversal of the judgment in this case, but I think the evidence of other offenses, if admissible at all, should be admitted upon other grounds than that of showing intent.