114 A. 389 | Conn. | 1921
The accused, Segar, was tried and convicted in the Superior Court in Middlesex County, upon an information in ten counts charging him with uttering or publishing ten checks for differing amounts, to each of which the name of George T. Cavanagh was falsely signed. All of the checks were of the ordinary form of bank checks, and were drawn on the East Hampton Bank and Trust Company located in East Hampton, in Middlesex County, and the information alleged that such uttering or publishing was done at East Hampton, in Middlesex County, with the intent to defraud the Bank and Trust Company.
Section 6628 of the General Statutes provides in part that "every person charged with any offense shall be tried in the county wherein it shall have been committed, except when it is otherwise provided." There is no special provision relating to the offense of uttering or publishing forged instruments.
The first ground of appeal is that, upon the admitted facts, the Superior Court for Middlesex County had no jurisdiction over the offense charged, but that the Superior Court for Windham County alone had jurisdiction. The question is presented to us through the refusal of the court to charge as requested, and through the charge of the court as given. There was no dispute *431 upon the essential facts with reference to the uttering, which are clearly stated in the charge as given. There is no substantial difference between the charge requested, and the charge as given, as to the facts to be found. The court charged as follows, to wit: "There is, I understand, no controversy that the accused cashed the checks, Exhibits 1 to 10 inclusive, in Willimantic, and that they came, in due course, through other banks to the East Hampton Bank and Trust Company, in this county, and were there paid. If you find that it [the State] proved that the accused used these checks at Willimantic in exchange for cash or goods with the intent that they should, in due course, be presented to the East Hampton Bank and Trust Company for payment, and that they were so presented, such facts would constitute an uttering, by the accused, of such checks as true, within this county. The accused, as I recall, does not dispute these facts."
For certainty we state the request to charge, as follows: "If the jury find that the checks set forth in the information were offered by the accused in Windham County to any person and accepted by such person in payment for goods or money obtained from such person to whom the checks were so offered and by whom they were so accepted; and further find that the checks passed into the hands of such persons who accepted such checks and endorsed the same, and that such persons thereupon endorsed such checks and deposited them in a bank in Windham County to their own credit and that the accused no longer had any control over the further disposition of said checks, then the offense of uttering said checks was committed in Windham County by the accused and the Superior Court in and for Middlesex County has no jurisdiction over said offense, or in the subject matter thereof." *432
Was the use of these checks by the accused as stated, at Willimantic in Windham County, an uttering or publishing in Middlesex County, as the court informed the jury? The offense charged was not forgery, but uttering or publishing the forged instruments. The place of the forgery is for present purposes therefore immaterial; for the crime charged is solely the uttering or publishing of the forged check. To utter is to offer. Bishop on Statutory Crimes (3d Ed.) § 306, says that in forgery "it means to offer by some overt act; as, one who offers a forged instrument . . . intending it shall be received as good, utters it, whether accepted or not." To the same effect is the definition in Bouvier's Law Dictionary, in the Standard Dictionary, and in others. See also Clark's Criminal Law (3d Ed.) § 114. The facts in this case are so simple and conclusive that no refinements of definition or of analysis are required. From the finding it appears that on or about the dates mentioned in the information, the defendant offered the checks in the town and county of Windham to sundry persons in said town with whom he had been transacting business; that said checks were severally accepted by the persons to whom offered in the town of Windham, and the defendant received for each of said checks money or goods to the amount of the face thereof; that each of said checks was indorsed by the defendant, delivered to the person to whom indorsed in Windham, and deposited by the indorsee in his bank in Windham, and the persons receiving said checks received from said bank money or credit to the amount of the face of the check so indorsed; that said bank or banks in the regular course of the banking business thereupon forwarded said checks to their respective banking correspondents and in due course each of said checks reached said East Hampton Bank and Trust Company at East Hampton, in the *433 County of Middlesex, and each of said checks was there honored and paid by said East Hampton Bank and Trust Company, and the paying bank believed at the time that the maker's signature, "George T. Cavanagh," was the genuine handwriting of George T. Cavanagh. This is only a more extended statement, in the finding, of what the court condensed in its charge to the jury. It is too plain for discussion that this conduct was, within any accepted definition, an uttering or publishing, and even more, for it was a successful offer resulting in an actual delivery of the forged instruments to others for cash and goods, whereby the accused lost all power and control over the forged documents and sent them on their way for collection through other banks in the usual course of business. Indeed, it is not directly claimed by the State that the utterance and publication were not complete in Windham County, but it says any other rule than to lay the offense in Middlesex County, as done by the trial court, would invite failure in the criminal law. We do not see exactly how this would result. This very case could as easily have been tried in Windham County as in Middlesex. It is desirable that the jurisdiction of criminal offenses be made distinct and certain. For offenses against the United States this is provided for by the Sixth Amendment of the Constitution, which requires that the trial shall be "by an impartial jury of the State and district wherein the crime shall have been committed." Our provision is by the statute above quoted. In this case all the facts constituting the utterance clearly happened in Windham County.
The State supports its claim by reference to a class of cases in which the use of the mail, or an innocent messenger, is necessary to make an utterance. In rePalliser,
The alleged forgery was that the accused had signed all of the checks described in the information in the name of George T. Cavanagh, and that this signature *436 was false, forged and counterfeit. The accused admitted that he had signed the name of Cavanagh to these checks, but his claim, and the real defense, was that this signature was made by the authority of Cavanagh. An account in the bank at East Hampton had been opened in Cavanagh's name. It was claimed by the accused that this account in Cavanagh's name consisted of funds furnished by the accused, and was used by the accused for his protection from attachment, and that his drawing on this account in Cavanagh's name was pursuant to a sort of standing arrangement between the two; and a considerable amount of testimony was introduced upon the question of this Cavanagh bank account and Segar's authority. Under this situation the State claimed that, at the time of Segar's arrest, Cavanagh, in the presence of Segar, Hurley, a State policeman, and others, stated that he did not give Segar any authority to sign his name, to which Segar said nothing except that he did not want to say anything until he had seen his counsel. On this occasion, when it appears that Cavanagh also was placed under arrest, Cavanagh signed a statement written by a State policeman, giving some account of his relations with Segar as to the account in the bank, and, among other things, in this statement, he said: "The checks shown to me today are not my checks. I did not write them. This is the first time I ever saw a cancelled check from the bank, although I heard a number of my checks had been in the bank. It looks to me now as if they had been using me for a damned fool. When Segar told me he had deposited money in my name, if I thought he was going to continue doing so, I would have stopped it. I never got a cent of the money that they got out of the bank. I never gave any one the right to use my name on checks and they had no right to draw them." The officer, apparently Hurley, *437 who testified as to the statement by Cavanagh in Segar's presence and about Cavanagh's statement in writing, on cross-examination by the accused, disclosed the existence of this written statement, and thereupon, on redirect, the State put it in evidence as Exhibit 114. It does not appear from the finding that Cavanagh's statement so written down by Hurley was made in the hearing of Segar, and we cannot infer by any construction of the finding that the statement as written purports at all to be the statement which Hurley testified to as made by Cavanagh in the presence of Segar, but rather as a statement made to Hurley for Cavanagh's own purposes, and not called to Segar's attention.
The accused made no objection or exception to the introduction of this statement, and did not move to strike it out. This exhibit, therefore, came before the jury without objection, limitation or criticism, and, consequently, for any and all purposes. This written statement was hearsay evidence and inadmissible if objected to on that ground; but having come in without objection, it was available for whatever it was worth upon its face. In this state of the evidence the accused requested the court to charge: "Exhibit 114, offered by the State, consisting of the signed statement of Cavanagh to the effect that he did not give Segar authority to sign his (Cavanagh's) name, cannot be considered by the jury in determining as to the facts whether he did or did not give Segar such authority."
The court did not so charge, and in this there was no error. The most that this request amounts to is in effect a motion to strike out. Both sides had rested and the case had been argued and it was too late for such a motion. Even if we construe it as the equivalent of such a motion, it was defective in that it gives no reasons, raises no ground of objection or discussion, and did not merit notice by the court. *438
Cavanagh was summoned by the State, and was present during the trial as a witness, but was not called to testify by either the State or the defendant. How this became known to the court or jury does not appear. Upon this fact the accused requested the court to charge that "the fact that Cavanagh was summoned as a witness for the State and was in attendance at the court during the entire trial by reason of being so summoned and to that extent under the control of the State, and the further fact that he was not called as a witness by the State, raises a presumption against the claim of the State that Cavanagh did not authorize Segar to sign his name to the checks."
The court was justified in refusing this request, and we adopt as applicable so much of the opinion inScovill v. Baldwin,
The most recent statement of the rule in our own court was in Tetreault v. Connecticut Co.,
Upon the facts it appears quite evident why neither side really wished to call Cavanagh. He might be hostile to the accused because he would not wish to become responsible for an overdrawn account. He might be hostile to the State as then under arrest, and the State might have been well content to have got in Cavanagh's statement. The present case is clearly covered by the rule in Scovill v. Baldwin,
Whether anything occurred in the argument to call for any comment by the court in respect to the matter does not appear, but, so far as does appear from the record, in no way would the court have been justified *440 in charging as requested, for the charge requested is a straight-out direction to the jury that the failure to call the witness then present in court did raise a presumption, and that the presumption was against the claim of the State. The utmost that could have been claimed, though we do think even that was unnecessary, and perhaps would have been improper, was to call the attention of the jury to the fact and leave it to the jury to say whether or not any presumption should properly be drawn, and if so, what it was. There was no error in the refusal to charge as requested on this matter.
The writing, Exhibit 114, above referred to, signed by Cavanagh, was in evidence without objection, in which Cavanagh stated that he gave no authority to the accused to sign the checks in his name. This statement was no proper part of the cross-examination of the witness then upon the witness stand, because it did not appear that it was this statement that had been called to Segar's attention and as to which he said nothing except as above explained.
The accused, in defense, introduced a witness, Stimpson, and offered to prove by him that on one or more occasions after the arrest, Cavanagh had said to him that he had given Segar authority to sign his name to checks. The court excluded this testimony. The only justification of this ruling by the State in its brief, is based upon the post litem motam rule. The court excluded the offered evidence on the ground that Cavanagh had not testified in the case. The record is not altogether clear here, but we believe this to be the meaning of it. If the ruling can be justified on any ground it should not be disturbed. We do not understand that the post litemmotam rule applies at all to contradictory statements made out of court and offered for the purpose simply of attacking the credit of the witness. The rule applies in those cases in which, by a modification of the hearsay *441
rule, certain kinds of hearsay may be introduced as evidential of the truth of the facts stated, — as in cases of pedigree, ancient rights, common fame, dying declarations, and some others. See 1 Greenleaf on Evidence (16th Ed.) §§ 114, 130 and 131; Dawson v.Orange,
Is the objection, apparently raised by the court, that Cavanagh had not testified, tenable in this case? We base our ruling on what we regard as clearly the fact, that the hearsay statement of Cavanagh was in fact in evidence in a shape to be regarded by the jury as evidential of the fact stated; that is, that he had never authorized the accused to use his name on the checks in question. The State had the benefit of this statement as much as though Cavanagh had said the same thing on the witness stand. That the statement might have been excluded on objection does not at all affect the fact that it was before the jury, effective for whatever the jury might deem it worth, and upon the vital point of whether Cavanagh authorized the accused to use his name or not. The situation is, in substance, and so far as the interests of the accused are concerned, like that where hearsay is admitted under some of the exceptions *442 to the rules, in which case the use of prior self-contradiction is allowed. See 2 Wig. on Evi. §§ 884-887.
The evidence of Cavanagh was improperly received, but at the instance of the State. Before objecting to rebutting evidence, which would have been admissible had the evidence been properly before the jury, or had Cavanagh in person testified, the State should have withdrawn the statement. It would manifestly be unjust to permit the State to have the benefit of the inadmissible, although relevant, statement, and at the same time deprive the accused of showing a contradictory statement to weaken or destroy its effect. The situation is unusual, but we think substantially the same question, though with the claims reversed, was rightly settled in Barnes v. State,
The present case is even stronger, for the evidence that had been introduced, while inadmissible on technical grounds, was not at all irrelevant to the question before the jury. Cavanagh's statement was relevant. Hearsay is not excluded because it is irrelevant in fact, but because of testimonial weakness due to lack of opportunity to test by cross-examination. 2 Wig. on Evi. § 1362, defines the hearsay rule as follows: "A rule rejecting assertions, offered testimonially, which have not been in some way subjected to the *443
test of cross-examination." Because the accused here, whatever may have been his reason, waived his right of objection to Cavanagh's statement, in itself relevant, we cannot see that this furnishes any reason why he should be deprived of the opportunity to show contradictory statements. The case of Phelps v. Hunt,
There is error, the judgment is set aside and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.