195 S.E. 338 | W. Va. | 1938
This case involves the application of Code,
Arnold Shade was convicted and sentenced upon a charge of forging the name of Robert Morrow to a check. At the trial, the justice who had conducted a preliminary hearing of the charge testified as follows: "I had him (Shade) on the stand and he was testifying. * * * I gave him a piece of paper * * * and pencil, and asked him to write 'Robert Morrow', and he did. * * * He was not off the stand." Whereupon the state was permitted to introduce in evidence the paper and in connection therewith the opinions of experts that the "Robert Morrow" on the paper and on the check, respectively, had been written by the same hand.
The state contends that since the justice supervised the writing, its use was permissible under Code,
The record brought here by Shade contains only the evidence referred to, and this was taken after the state had initially rested its case. The state contends that, since all the evidence is not before us, we are not in position to say that the use of the writing was prejudicial to him. When the state had first rested, he moved to strike. The court then asked the prosecuting attorney "what evidence have you that the defendant forged Robert Morrow's name?" Without pointing out such evidence, the prosecuting attorney announced that he had additional evidence, just discovered, and asked that the case be re-opened, which was done. Thereupon, the writing and the evidence relating thereto followed. The question by the court sufficiently indicates that evidence of the forgery, if any, theretofore introduced was not at all impressive. Therefore, the subsequent evidence was necessarily material, and as such, prejudicial to Shade.
The judgment is reversed, the verdict set aside and a new trial awarded.
Judgment reversed; verdict set aside; new trial awarded. *603