Bell v. State

• Decision Date: 30 June 1881
• Parties: GEORGE BELL, alias GEORGE W. KIMBALL v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

57 Md. 108

GEORGE BELL, alias GEORGE W. KIMBALL v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

June 30, 1881

APPEAL from the Circuit Court for Howard County, on removal from the Criminal Court of Baltimore.

The appellant was indicted in the Criminal Court of Baltimore for forging an order for the payment of money purporting to be signed p. p. J. Harmanus Fisher, H. A. Orrick and to be drawn upon the Merchants' National Bank payable to the order of George W. Kimball, and to be dated at Baltimore on the 16th July, 1880, and to be endorsed by George W. Kimball, and for uttering the same, as set forth in the opinion of the Court; in which opinion the case is further stated.

First Exception.--The reasons for the ruling of the Court below are set forth in this exception, (which is stated in the opinion,) as follows: The Court was of opinion that upon the present trial it was competent to the State, for the purpose of proving guilty knowledge, to show that the prisoner, at or about the same time, had uttered other forged checks, and that the State was not precluded from offering such testimony by the fact that the prisoner had been indicted, tried and acquitted of forging and uttering such other forged paper; and they were also of opinion, that they could not receive the oral testimony proposed by the prisoner's counsel, as to the ground upon which said former case was tried and argued, and the verdict of acquittal rendered, but were of opinion, (in accordance with the views expressed in some of the authorities cited by counsel for the State,) that it would be competent for the prisoner, and they would allow his counsel to offer in evidence, in his defence, the record of his acquittal in the former case, but for the purpose only of affecting the weight and credibility of the evidence of identity that may be produced against him on his present trial, and the weight of other evidence that may be produced tending to show him to be guilty of the crime for which he is now indicted and under trial. Having expressed this opinion, after the question had been fully argued by counsel on both sides, the Court overruled the objection of the prisoner's counsel, and ruled:

First. That it was competent for the State to give in evidence the conversation between the witness Morris, and the party who presented the second check on the 17th of July, and which took place on that occasion in the bank, and in the presence of said witness, in reference to its presentation and payment, irrespective of the question, whether the prisoner had been acquitted of forging and uttering that check or not.

Second. That it was also competent for the State on this trial, to offer evidence tending to show that said second check was a forgery, and was presented to the witness Morris, for payment on the 17th of July by the prisoner, and that he was paid the money therefor by said witness, notwithstanding the prisoner had been tried and acquitted of forging and uttering that check.

Third. That the Court would not, in determining the question of the admissibility of the evidence, mentioned in either the said first or second rulings, receive or consider the said oral testimony offered by the prisoner's counsel, as to the ground upon which the said case in the Criminal Court was tried and argued, and the verdict of acquittal rendered, and refused to receive and consider the same. To these several rulings, and to each of them severally, and to each and every part of each of them, the prisoner, by his counsel, excepted.

Second Exception.--This exception is fully stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., GRASON, ROBINSON, IRVING and RITCHIE, J.

Isidor Rayner and W. H. Whyte, for the appellant.

Charles J. M. Gwinn, Attorney-General, for the appellee.

GRASON J., delivered the opinion of the Court.

The appellant was indicted in the Criminal Court of Baltimore, and the case was removed to the Circuit Court for Howard County for trial. The indictment contains four counts; the first charging the appellant with forging a check with intent to defraud; the second with uttering it with intent to defraud; the third with forging it with intent to defraud the Merchants' National Bank, and the fourth with uttering it with intent to defraud the Merchants' National Bank. The appellant pleaded not guilty, and the jury having found a verdict of guilty, he took this appeal for the purpose of having the rulings of the Court below, set out in the two exceptions taken by him, reviewed by this Court.

The State proved by Thomas H. Morris, the paying teller of the bank, that, shortly after three o'clock on the 16th day of July, 1880, a man, who the witness testified was the appellant, entered the bank and presented at the desk of the paying teller, where witness was standing, the check described in the indictment, and said, "I am a little late;" to which witness replied "yes, you are late;" and the person then said, "I have sold some bonds to Mr. Fisher, and I would be obliged if you would accommodate me by giving me large money for the check as I have some money to pay up street;" that witness replied that he had no large money, and then paid him the amount of the check from money in the drawer, consisting principally of ten dollar notes. The State then offered to prove by the same witness, that, on the following day, the 17th day of July, the same party came to the bank in the morning, during banking hours, and presented another check, similar, except in its amount, to that which had been presented by him and paid the previous day, and remarked, "I am not late to-day;" to which witness replied, "no, you are not late to-day." The party then stated that he had sold some more bonds to Mr. Fisher, and again made the request that he might be paid in large money; and the witness went to the vault, obtained large notes and paid the amount of the check. The State then offered to prove that this second check, as also that which was presented and paid the day previously, was a forgery. The appellant, by his counsel, objected to the admissibility of the conversation, and everything connected with the presentation and payment of the second check and the proof that it was forged, because the appellant had been indicted and tried before a jury and acquitted in the Criminal Court of Baltimore, for forging and uttering said check; contending, in support of said objection, that his acquittal was conclusive of the fact either that the check was not forged, or that the appellant was not the party who presented it for payment and obtained the money thereon, and that the State was estopped by that acquittal from showing the facts then offered to be proved in this case; and, in support of his objection, he offered to prove to the Court, by oral evidence, that upon the said trial in the Criminal Court, the witness, Morris, testified that the appellant was the person who presented the second check for payment, and had identified him as such person, and that the whole case was tried and argued to the jury upon the question of identification as then proved by this witness, and that upon such trial and argument the jury in that case rendered a verdict of acquittal. But the Court refused to hear the oral evidence thus tendered by the appellant, overruled his objection to the evidence offered by the State, and permitted it to be given to the jury, and this ruling is the ground of the first exception.

The proof, as offered by the State was clearly admissible. If it can be shown that a party indicted for uttering forged paper upon a bank, has, within a short period of time passed other forged paper on the same bank, it is plain that such repeated utterings show a plan to defraud the bank, and in such case each uttering is admissible in evidence, as tending to prove the intent with which each uttering is committed. Whart. Cr. Ev., sec. 43; Queen vs. Francis, 12 Cox's C. C., 612. It is not often possible to prove by positive and direct evidence that a party who utters a forged paper, has a knowledge that it is forged. When it has been proved that the party charged has done the act for which he is indicted, the question still remains, whether he committed it with guilty knowledge or whether he acted under a mistake; and evidence which tends to prove that he was pursuing a course of similar acts, raises a presumption that he was not acting under a mistake, but with a guilty knowledge and intent, and is admissible for that purpose. Roscoe's Cr. Ev., 7 th Amer. Ed., 93; Queen vs. Francis, 2 Cox's Cr. Reps., 131, 132; Whileys and Haines' Case, 2 Leach, 985; Bishop and Helm vs. State, 55 Md.; Bloomer vs. State, 48 Md., 529. Innumerable cases might be cited to the same point but those to which we have referred are sufficient. Such evidence is admissible notwithstanding the party may have been indicted for such other acts. 1 Whart. Cr. Law, (8 th Ed.,) sec. 715; State vs Williams, 2 Richardson, 418; State vs. McAllister, 24 Maine, 139; Commonwealth vs. Perceval, Thacher's Cr. Cases, 293; Commonwealth vs. Price, 10 Gray, 476; Hendrick vs. Commonwealth, 5 Leigh., 707; Rex vs. Smith, 4 Car. & Payne, 411. The record does not show that any record of the case was offered by the appellant for the purpose of proving that he had been tried and acquitted of the charge of having passed the check on the 17th July, 1880. The only legal proof of his acquittal would have been a record of the proceedings in the case from the Criminal Court of Baltimore. This bill of exception does not disclose the fact that any record from the Criminal Court of such acquittal had been offered in evidence at the time this exception was taken. The objection to the proof offered by the State was therefore...