Bennett v. State

• Decision Date: 08 July 1896
• Citation: 36 S.W. 947,62 Ark. 516
• Parties: BENNETT v. STATE
• Court: Arkansas Supreme Court

36 S.W. 947

62 Ark. 516

BENNETT v. STATE

Supreme Court of Arkansas

July 8, 1896

Appeal from Clay Circuit Court, Eastern District, FELIX G. TAYLOR Judge.

STATEMENT BY THE COURT.

At the February term, 1895, of the Craighead circuit court Jonesboro district, the defendant, J. P. Bennett, was indicted for forgery.The case was removed on change of venue to the eastern district of Clay county, and at the January term thereof, 1896, defendant was convicted, and sentenced to the penitentiary for a term of two years and six months.

The indictment is as follows:

"INDICTMENT.

Craighead Circuit Court, Jonesboro District, February Term, 1895.

State of Arkansas, v. J. P. Bennett.

The grand jury of Craighead county for the Jonesboro district, in the name and by the authority of the State of Arkansas accuse J. P. Bennett of the crime of forgery, committed as follows, viz.: the said J. P. Bennett, on the 17th day of March, 1894, in the county of Craighead and district aforesaid, did unlawfully, wilfully, knowingly, and feloniously and fraudulently make, write, forge, and counterfeit a certain deed and acknowledgment thereof, in words and figures as follows, towit:

WARRANTY DEED.

With Relinquishment of Dower.

Know all men by these, presents:

That I John T. Burns, and , his wife, for and in consideration of five hundred and fifty dollars ($ 550.00) to us paid by J. N Watkins do hereby grant, bargain, sell, and convey unto the said J. N. Watkins, and unto his heirs and assigns forever, the following lands lying in the county of Poinsett and State of Arkansas, towit; East half of section six, township twelve north, range five east, and also north half of section seven, township twelve north, range five east.To have and to hold the same unto the said J. N. Watkins, and unto his heirs and assigns forever, with all appurtenances thereunto belonging.And I, , hereby covenant with the said J. N. Watkins that I will forever warrant and defend the title to said lands against all lawful claims whatever.And I, , wife of said , for and in consideration of the said sum of money, do hereby release and relinquish unto the said all my rights of dower in and to said lands.Witness my hand and seal this 22nd day of August, 1892.

JOHN T. BURNS, [Seal.]

[Seal.]

ACKNOWLEDGMENT.

STATE or ARKANSAS, County of Craighead.

Be it remembered that on this day came before me, the undersigned, a justice of the peace within and for the county aforesaid, duly commissioned and acting, John T. Burns, to me well known as the grantor in the foregoing deed, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth.

Witness my hand and seal as such justice this the 22nd day of August, 1892.

J. P. BENNETT, J. P.

Which said deed and acknowledgment were so unlawfully and fraudulently forged and counterfeited by the said J. P. Bennett for the purpose and with the intent to defraud and prejudice John T. Burns, pretended grantor in said deed, and the estate and heirs-at-law of the said John T. Burns, against the peace and dignity of the State of Arkansas.

W. W. BANDY,

Prosecuting Attorney Second Judicial District."

The appellant moved to quash the indictment, and one of the grounds of his motion was that N. F. Lamb, not a prosecuting attorney or a witness was present with the grand jury while they were examining this charge.The motion was overruled, and the defendant excepted.

The defendant demurred to the indictment because its allegations were repugnant; because it did not allege the signing of the deed was without authority; because the intent to defraud was not apparent; because it stated a conclusion of law; because it did not state a public offense.The demurrer was overruled, to which defendant excepted.

The evidence tended to show the following facts: In 1894, Joseph N. Watkins was indicted and tried for cutting and removing timber from the lands described in the deed set out in the indictment.In order to enable him to make his defense to the indictment, the appellant, J. P. Bennett, made out a warranty deed, and signed the name of John T. Burns, who was then deceased, to said deed, which purported to convey the land from which the timber was charged to have been cut by Watkins in the indictment against him.

The appellant swore at the trial of Watkins that the deed was genuine.The deed was used as evidence on the trial in behalf of Watkins and he was acquitted.

Watkins and one Stotts, who were connected with Bennett in the forgery, having also sworn on the trial of Watkins that the deed was genuine, were not indicted for perjury in the Watkins case, and, proposing to testify against Bennett, were not indicted for forgery.At the trial of Bennett, Watkins and Stotts testified substantially to the facts as set out above; and that the sole object and intent in making the deed was to defeat the prosecution against Watkins for taking the timber.It was shown that the signature to the deed was not in John T. Burns' handwriting.It was testified by John Weaver that, before the Watkins case was tried, Watkins came to him, and asked him to go to the office of the Jonesboro Times, and get him two blank deeds; that he did so; and that on the same day Watkins had told him that Bennett had promised to make a deed that would clear him.

Watkins and Blalock testified substantially to the same facts.Neely and Moss testified that Burns claimed to own some land, and E. Foster Brown that the records showed that he owned considerable lands.

The following are the chief instructions asked by the plaintiff and given, to which appellant excepted:

3."If the jury find from the evidence beyond a reasonable doubt that the defendant fraudulently made the deed and acknowledgment in evidence, intending to defraud some one, and that John T. Burns, whose name appears in said deed, was dead at the time said deed was made, and that an heir or heirs of said John T. Burns were living at the time of the making of said deed, and that the said John T. Burns left an estate consisting of real estate or personal property, or both, then you will find defendant guilty.

4."If you find from the evidence beyond a reasonable doubt that the defendant fraudulently made the deed and acknowledgment in evidence, intending to defraud some one, and that John T. Burns, whose name appears in said deed, was living at the time of making said deed, then you will find the defendant guilty."

The following are the chief instructions asked by defendant and refused, to which he excepted:

2."The intent to defraud is the very essence of the crime of forgery, and, unless you are satisfied beyond a reasonable doubt upon this point, you will find the defendant not guilty; and the particular intent that must be proved here is an intent to defraud John T. Burns, his heirs or estate, because that is the intent charged in the indictment, and no intent to defraud another or different person can support this charge.

3."If you believe from the evidence that the forgery was actually committed by the defendant, but that the intent was to defeat a criminal prosecution against J. N. Watkins and not to defraud John T. Burns, his heirs or estate, you will find the defendant not guilty.

10."The jury are instructed that in this case the indictment charges the forgery to have been committed for the purpose of defrauding John T. Burns, his heirs and estate, and, before the jury can convict the defendant, they must find from the evidence beyond a reasonable doubt that the purpose of the defendant in committing the forgery, if committed, was to defraud either John T. Burns, his heirs, or estate.

12."If the jury find from the evidence that defendant forged the deed in evidence, a presumption of law would arise that it would have its legal effect to defraud Burns, his heirs, or estate; but this presumption is rebuttable, and if a different intent is proved, and you believe that the intent of defendant was to get witness Watkins out of trouble, and not to defraud Burns, his heirs, or estate, you cannot find defendant guilty.

13."The state is bound to prove, under this indictment, not only that the deed itself was forged by the defendant, but that the acknowledgment also was forged by him.And you are instructed that if defendant signed his own name to the acknowledgment, with the intent that it be taken as his own name, that act does not constitute forgery; and if such are the facts of this case, you will find the defendant not guilty.

14."The state must show that the defendant made the deed in evidence, and that he did it with the intent to defraud John T. Burns, his heirs, or estate, and without his authority.The burden of proof is not upon defendant to show that he had authority to sign Burns' name, but the burden is on the state to show that he did not have authority.And unless the proof here has demonstrated that such authority was not given, you will find the defendant not guilty.

15."The intent to defraud is the gist of the crime of forgery, and, while the presumption of the law obtains that every sane man contemplates and intends the necessary natural, and probable consequences of his own acts, this, though a very important circumstance in making the proof necessary upon this point, is not conclusive nor alone sufficient to convict, and should be supplemented by other testimony to avoid a reasonable doubt.And, consequently, the mere fact of the forging of the deed in evidence would not establish the necessary intent, beyond a reasonable doubt, even if not rebutted by proof of a different intent; and, unless there is other proof of the intent to defraud John T. Burns, his heirs or estate, than the mere presumption aforesaid,...