210 P. 995 | Nev. | 1923
Lead Opinion
An information was filed in the court below against the defendant, charging him with the crime of forgery, alleged to have been committed as follows:
“ * * * That said defendant on the 4th day of November, A. D. 1921, or thereabouts, and before the filing of this information, at and within the county of Washoe, State of Nevada, did then and there wilfully, unlawfully, fraudulently, and feloniously, with the intent to defraud one Edward Herzog, complainant herein, make, pass, utter, and publish a certain fictitious check and instrument in writing for the payment of money, purporting to be the check and instrument of one R. J. Dawson, when in fact there was no such individual as said R. J. Dawson in existence, the said fictitious check and instrument being directed to and drawn upon the California National Bank of Sacramento, Calif., and being in words and figures, as follows, to wit:
*267 “ ‘Sacramento, Nov. 3d, 1921. No. 104.
“ ‘The California National Bank of Sacramento &0-3S
“ ‘Pay to the order of James P. Doyle $41.50, forty-one and 5%oo dollars. R. J. Dawson.’
—when in truth and in fact the said defendant Elmer Williams, alias James P. Doyle, knew that said check and instrument was fictitious at the time of his making, passing, uttering, and publishing the same as aforesaid. * * * ”
The defendant was convicted and sentenced to the state prison for a term of not less than one nor more than fourteen years.
Upon the trial the state introduced as a witness R. S. Smith, who testified, in substance, that he was and had been assistant auditor of the California National Bank of Sacramento, Calif.; that as such he had access to the records and books of said bank; that it was his duty, as assistant auditor, to ascertain who were the customers and depositors at the bank and who had funds or credits therein on which to draw checks; that its books were in daily use of the bank at Sacramento, Calif.; that he had had occasion recently to examine said books to ascertain if R. J. Dawson, the purported, drawer of the alleged check, had an account at said bank; and that the books did not show that said Dawson had an account at the bank. The defendant objected to the evidence, upon the ground that it was not the best evidence of the fact sought to be established, namely, that the purported drawer of the check had no account at the bank.
Counsel seem to concede that a bookkeeper or teller of a bank is qualified to testify that a certain drawer of a check thereon had no account therein, but insist that an assistant auditor of a bank is not qualified. We are not concerned with the force of the testimony, but in this instance we are satisfied that in consideration of his duties as detailed by the witness he was qualified to testify that the books of the bank did not show that the purported drawer of the check had an account at
We conclude that there was no reversible error in the ruling on the assignment based on Smith’s evidence.
Upon the conclusion of the testimony, the court instructed the j ury, in writing, as follows:
“You are instructed that, before you can find the defendant guilty, it is incumbent upon the prosecution to establish by evidence beyond a reasonable doubt each of the following facts, which are essential elements of the offense charged:
“First — That there was not in fact any such a person as R. J. Dawson.
“Second — That at the time of uttering the check in question the defendant knew that there was no such person as R. J. Dawson.
“Third — That said check was passed by the defendant with the intent to defraud.
“It is essential that the state establish each of the above elements by evidence establishing beyond a reasonable doubt that each of the said elements in fact existed, and the proof .of any one of the same, in the absence of proof of the others, is insufficient. However, when a check or other instrument in writing is drawn upon any bank, proof that the purported drawer of the same had no account at said bank shall be considered material evidence tending to sustain the allegation of the nonexistence of the drawer of such instrument.
“In the event that you entertain a reasonable doubt as to the existence of any of the above-enumerated facts, it is your duty to find the defendant not guilty.”
“The court instructs the jury that, whenever a check or other instrument in writing is drawn upon any bank, proof that the purported drawer of the same had no account at said bank is deemed sufficient evidence to warrant the jury in finding that the purported drawer of the check or instrument in writing is fictitious,*269 though such evidence is not conclusive upon the jury, and they may find to the contrary.”
The defendant challenges these instructions and complains that they are violative of section 12, article 6, of the constitution of Nevada, which provides:
“Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law.”
Section 400 of the crimes and punishments act (Rev. Laws, 6665, as amended by Statutes of 1915, p. 15; 3 Rev. Laws, p. 3388) reads as follows:
“Every person who shall make, pass, utter, or publish, with an intention to defraud any other person or persons, body politic or corporate, either in this state or elsewhere, or with the like intention shall attempt to pass, utter, or publish, or shall have in his possession, with like intent to utter, pass, or publish, any fictitious bill, note, or check purporting to be the bill, note or check, or other instrument in writing, for the payment of money or property of some bank, corporation, copartnership, or individual, when in fact there shall be no such bank, corporation, copartnership, or individual in existence, the said person knowing the said bill, note, check, or instrument in writing for the payment of money or property to be fictitious, shall be deemed guilty of forgery, and on conviction thereof shall be punished by imprisonment in the state prison for a term not less than one or more than fourteen years. Whenever such note, bill, check, or other instrument in writing is drawn upon any bank, proof that the purported drawer of the same had no account at said bank, shall be deemed sufficient evidence to sustain the allegation of the nonexistence of the drawer of such instrument.”
The instructions, considered together, are but declaratory of the rule of. evidence declared in the statute as amended, hedged about with language safeguarding the defendant’s fundamental rights. It is not complained that the instructions are not a correct statement of the
It must be conceded that the legislature possesses the whole legislative power of the people, except so far as its power is limited by the constitution. The power to enact such a provision as that above quoted is founded upon the jurisdiction of the legislature over rules of evidence in criminal cases. The question for determination, therefore, is whether the undoubted power of the legislature to prescribe rules of evidence and methods of proof has been illegally exercised.
Courts are committed to the general principle that in criminal prosecutions the legislature may, with some limitations, enact that, when certain facts have been proved, they shall be prima facie evidence of the main fact in question. 8 Ruling Case Law, sec. 171, p. 177.
In the absence of statute, it has been held that, where the accused has obtained money from a person for a check drawn by one on a certain banking house, and it appeared that no person of that name kept an account or had funds or credit in that banking house, it is sufficient prima-faeie evidence that the drawer was a fictitious person. People v. Eppinger, 105 Cal. 36, 38 Pac. 538; 3 Greenleaf on Ev. (16th ed), sec. 109. Here the statute under review enacts in express terms that proof that the purported drawer of such check on a bank had no account at said bank shall be deemed sufficient evidence to sustain the allegation of the nonexistence of the drawer of such instrument. It is the contention of counsel that the method of proof of the nonexistence of the' purported drawer of a check, as expressed in the instructions, pursuant to statutory authorization, amounts to a charge by the court on an essential element of the crime, denies the accused the opportunity for a trial, and substantially deprives him
Our conclusion is that neither the statute nor the instructions are assailable on constitutional grounds.
We find nothing in the bill of exceptions to warrant or authorize our consideration of the assignment that the information was filed without preliminary examination of the accused, or an affidavit as required by statute.
The judgment and the order denying the defendant a new trial are affirmed.
Rehearing
On Petition for Rehearing
Rehearing denied.
