Crossland v. State
| Decision Date | 03 February 1906 |
| Parties | CROSSLAND v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court; STYLES T. ROWE, Judge reversed.
STATEMENT BY THE COURT.
Appellant was indicted for forgery and uttering a forged instrument as follows (omitting formal parts):
CHATWELL BROS.
The second count charged the uttering of the instrument, as set forth in the first count.
The proof tended to show that the appellant in Fort Smith in November, 1905, bought of the Palace Clothing Company a pair of trousers, and presented the check described in the indictment in payment of same. He represented that his name was Frizzell, and that the check was made to him. The one to whom the check was presented inquired over the 'phone of the drawers of the check to know if such a check was out and all right. Upon being informed that it was, he called upon the appellant for identification, and appellant went out and came back with a young man who said that he knew appellant and "that he was all right." Thereupon payment for the trousers was taken out of the check, and the balance was given to appellant in money.
Robert E. Frizzell testified in substance that he was the manager of the beer business of his brother, James G. Frizzell, in Fort Smith; that he had authority to receive checks, to transfer and indorse same; that he got the check from Chatwell Bros on November 1, and put it in his vest pocket; that after supper about seven o'clock he went to the closet, leaving his vest on some soda boxes in the middle room of the store. He was gone a short time, and on his return found the appellant in his place of business. He detailed a short conversation had, with the appellant, after which appellant left. The witness stated that he found the check next day in the possession of the Palace Clothing Company; said that he did not give the check to the appellant or authorize him to get it; that the check was in the same condition as when he received it from Chatwell Bros., except the indorsement James G. Frizzell. The word "bearer," he explained, was scratched out at the time the check was given, in order that it might be payable only to James G. Frizzell. At this juncture the witness was asked "if he indorsed the name of James G. Frizzell on the check, or if it was so endorsed when it was taken." Appellant objected on the ground that he was "not charged with forging the indorsement or with uttering a check upon which there was a forged indorsement." The court sustained the objection as to the first count in the indictment, but held the question proper as to the second count, to which action of the court the appellant excepted. Witness answered that he did not indorse it, nor did James G. Frizzell.
The following check was admitted as evidence, to-wit:
CHATWELL BROS.
[indorsed] "James G. Frizzell."
Appellant objected and excepted to the ruling of the court.
By a series of questions appellant sought on cross-examination of witness Robert E. Frizzell to establish that from time to time during the last year appellant had called upon him for money, and that he had been in the habit of letting appellant have money and checks from time to time, and let him have the check under consideration in the same way that he let appellant have previous checks. The court would not permit such evidence, and the appellant excepted to the court's ruling. The court refused, over appellant's objection, to permit appellant to ask witness Frizzell if he was not asked certain questions before the grand jury in regard to letting appellant have money and checks, before the alleged forgery of this check, and if he did not refuse to answer these questions.
Appellant then offered to prove that witness Robert E. Frizzell had the note of the appellant for $ 250 which did not represent $ 250 actually loaned or advanced by Frizzell to appellant, but that the note was given to stand as evidence of transactions between Frizzell and appellant, so that Robert E. Frizzell, in accounting with James G. Frizzell, might show that $ 250 had been drawn out of the business for the $ 250 note. The court would not permit such testimony, to which ruling appellant excepted.
The appellant testified that he did not take the check in evidence, but that Robert Frizzell gave to him. He said:
Appellant offered to prove that at various times prior to the alleged offense, covering a period of six or seven months, Frizzell gave him money, and when he did not have money gave him checks, and on several occasions when defendant wanted money he gave him checks payable to James G. Frizzell and told him to use them, which he had done; that sometimes Emmett Frizzell would indorse these checks himself, and sometimes tell the defendant to do so and get the money; that these checks and the money that had been heretofore given him were under like circumstances as the one defendant is charged with stealing. All of which testimony the court held to be incompetent and excluded same, to which action of the court the defendant at the time excepted.
A plea of former conviction was interposed with the plea of not guilty, and the record of the circuit court was introduced showing a conviction of appellant for grand larceny, the property being the check which appellant in the case at bar is alleged to have forged and uttered. The court overruled the plea of former conviction.
Appellant asked the court to instruct the jury, "under the law and the evidence to acquit the defendant," and also asked an instruction presenting his theory as to the evidence he had offered, which the court had refused.
The court on its own motion gave the following:
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