Fox v. People of State

• Citation: 95 Ill. 71,1880 WL 10008
• Parties: FRANK FOXv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Decision Date: 18 May 1880
• Court: Supreme Court of Illinois

95 Ill. 71

1880 WL 10008 (Ill.)

FRANK FOX

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Henry county; the Hon. JOHN J. GLENN, Judge, presiding.

Mr. O. F. WOODRUFF, for the plaintiff in error:

1. The verdict is contrary to the law, and is wholly unsupported by the evidence.

2. In cases where the indictment sets forth the instrument said to be forged, with the usual and necessary allegations of intent to defraud, it is indispensably necessary to prove the intent to defraud upon the trial, and it is error to admit the declaration of a prisoner in reference to any other than the one set forth in the indictment, unless such other note be produced in court and proved to be a forgery. Especially is it error to compel a prisoner to testify as to what he said in reference to a note not before the court, and concerning the existence of which there is no proof. The People v. La Grille, 1 Wheeler's Crim. Cases, 415; Regina v. Cook, 8 Car. & Payne, 906; Regina v. Hill, 8 Id. 730; Upfold v. Leit, 5 Esp. 100; Regina v. Millard, Russ. & Ryan, 245; 2 Russell on Crimes, 710; Roscoe's Crim. Ev. 91.

3. In order to constitute any crime there must be an act as well as an intent. The mere having of a forged instrument, or the establishing by proof the fact that the prisoner wrote the name to the note without authority, are not such facts of themselves, unsupported by proof of an intent to defraud, as would warrant a conviction for forgery. Commonwealth v. Goodenough, Thacher's Crim. Cases, 136; Commonwealth v. Whitney, Id. 200; Rex v. Shukard, Russ. & Ryan, 200; Rex v. Jones, 1 Leach, 367; Rex v. Hodgson, Dearsley & Bell C. C. 3; Rex v. Ogden, 6 Car. & Payne, 611; Regina v. Page, 8 Id. 844; Miller v. State, 51 Ind. 405; Roscoe's Crim. Ev. 508-511; 2 East's Pleas of the Crown, 853, 855; 2 Bish. Crim. Law, secs. 563, 565.

4. It is the duty of the presiding judge, during a criminal trial, to protect the prisoner from unreasonable and unfair statements and arguments of the prosecuting officer. If he fails to do so, and the impropriety is gross, a new trial should be awarded. State v. Williams, 65 N. C. 505; State v. Smith, 75 N. C. 306.

5. Where the feelings and reputation of an honest and upright citizen are involved, his good name will always preponderate in favor of his innocence in a doubtful case. Green v. Cornwell, 1 City Hall Recorder, 11.

In criminal trials evidence of previous good character is proper to go to the jury, not only in those cases where a doubt exists upon the other proof, but even to generate a doubt as to the guilt of the accused. Felix v. State, 18 Ala. 720; Fields v. State, 47 Id. 603; Remsen v. The People, 43 N. Y. 6-9; Cancenei v. The People, 16 Id. 506.

To refuse to instruct the jury on the question of good character seems equivalent to holding, or at least to leaving the jury to infer, that the evidence which was lawfully put into the case was immaterial after it was in. The People v. Garbuilt, 17 Mich. 9-26; Hamilton v. The People, 29 Id. 195; Campbell v. The People, 34 Id. 351.

Mr. THOS. E. MILCHRIST, State's Attorney, for the People:

The act of forgery itself is sufficient to imply an intent to defraud, unless it appears that no fraud whatever could have been effected by the forgery. 2 Arch. Crim. Law, 1602; State v. Woodward, 20 Iowa, 553; 2 Whart. Crim. Law, sec. 1453; 2 Russell on Crime, 779; Moore's Crim. Law, sec. 598.

And the law presumes an intent to defraud the person who would have to pay the instrument if it were genuine. 1 Whart. Crim. Law, sec. 712; 2 Id. secs. 1453, 1455; 3 Greenl. Ev. 93; Commonwealth v. Stephenson, 11 Cush. 481; State v. Woodward, 20 Iowa, 553.

And this, although the intention to defraud the person in particular who would have to pay the note, did not enter into the prisoner's contemplation. 3 Chitty's Crim. Law, 1039; 3 Greenl. Ev. 93.

As to the improper remarks of the State's attorney, if they were all made as imputed, there was no objection made to them, as there was in the cases cited from North Carolina.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Plaintiff in error was indicted at the October term, 1879, of the Henry circuit court, for forgery. The indictment contained four counts. The State's attorney entered a nolle prosequi to the third and fourth, and on a trial defendant was convicted on the first count, and his confinement in the penitentiary was fixed at three years. A motion for a new trial was entered but overruled, and judgment rendered on the verdict. And the record is brought to this court, and various errors are assigned.

On the trial in the court below a number of exceptions were taken to the rulings of the court. And it is urged that the court erred in admitting evidence against the accused and in giving instructions; also, in refusing instructions asked on behalf of the accused, and because the State's attorney went outside of the evidence of the case to the prejudice of accused, in his argument before the jury. There are others assigned, but they are either embraced in these or are such as need not now be discussed.

It is urged that the intent to defraud being properly averred in the indictment, it was indispensably necessary to prove it as laid. And it was error to permit evidence of what accused said of another and different note, the existence of which was not shown, much less was the note produced. The intention to injure or defraud the person as averred must be proved, but that is usually done by showing that the forged instrument was uttered.

The statements of a defendant as to other instruments of the same kind, supposed to have been uttered by him, are not admissible in evidence. Regina v. Cooke, 8 C. and P. 582.

This seems to be conclusive of this question. Evidence of admissions or statements in reference to the note for the forgery of which he was being prosecuted was admissible, but what he said of another note was not admissible to prove the charge on which he was being tried. When a person is indicted on a charge of passing counterfeit bank bills, proof that he had previously passed similar bills is admissible to prove guilty knowledge, but the proof of the existence of such bills is required.

The fifth of the people's instructions is wrong in referring to the statements of accused in reference to a $135 note on the prosecuting witness. The evidence being improper it was equally improper to refer to his statements in the instructions. It is claimed that the intent to defraud being averred, it must be proved as averred, and that the court took that question from the jury by the people's third instruction, which is:

“That if you believe from the evidence, beyond a reasonable doubt, that the defendant actually forged the note offered in evidence herein, then the law will presume it was to defraud, and done with an intent to cheat and defraud, as charged in the first and second counts of the indictment, even if the evidence does show that defendant had taken a genuine note of Dwyer for said sum of $35, upon which Dwyer was liable.”

It was for the jury to determine from the evidence before them whether there was an intention of defrauding Dwyer, as averred in the indictment. This they were to determine from all the evidence, direct and circumstantial. It may be the possession, with the attending circumstances, proved the...