Holloway v. State

• Decision Date: 05 April 1909
• Parties: HOLLOWAY v. STATE
• Court: Arkansas Supreme Court

118 S.W. 256

90 Ark. 123

HOLLOWAY v. STATE

Supreme Court of Arkansas

April 5, 1909

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

Judgement reversed and cause remanded.

Fink & Dinning, for appellant.

1. The evidence does not sustain the verdict because (a) it wholly fails to connect appellant with the offense charged in the indictment. (b) The evidence does not tend to prove that the instrument of writing in evidence was the one upon which the alleged forged signatures were written. (c) No competent evidence to show that Turner obtained judgment against the Dixie Mutual Company et al. If there was no judgment, there could be no liability on the bond, and the latter could not be the subject of forgery. 19 Cyc. 1406; 61 S.W. 478; 45 Am Dec. 601. (d) The bond was never filed with or approved by the clerk, and never became operative. Kirby's Dig § 3250; 73 S.W. 1046; 17 Cyc. 1144; 51 S.W. 382; 36 S.W. 82; 9 Cow. (N. Y.) 778; 5 Enc. of Ev. 854.

2. The variance between the bond introduced in evidence and the purported copy thereof in the indictment, whereby the word "and" appears in the latter which is not found in the bond, and the word "bond" is substituted for "bind," is fatal. 19 Cyc. 1396; 62 Ark. 533, 534; 58 Ark. 242; 32 Ark. 609.

3. The evidence does not attempt to show that appellant forged the bond for the purpose of cheating and defrauding Turner, as alleged in the indictment. 80 Ark. 222; 41 S.W. 774; 2 Bishop, New Crim. Prac. § 427.

Hal L. Norwood, Attorney General, and C. A. Cunningham, Assistant, for appellee.

1. The evidence is sufficient to connect appellant with commission of the crime and to sustain the verdict. If there is evidence to sustain the verdict, it will not be disturbed. 14 Ark. 202; 19 Ark. 671; 24 Ark. 251; 21 Ark. 306; 70 Ark. 136; 67 Ark. 399; 74 Ark. 478.

2. No variance between the proof and the indictment. Indorsements appearing on the bond need not be set out. 77 Ark. 543.

3. Where the forged instrument is made and uttered as genuine, the intent to defraud is presumed, and it is not necessary to prove damage. 62 Ark. 530; 58 Ark. 250.

OPINION

MCCULLOCH, C. J.

The defendant, H. W. Holloway, was indicted by the grand jury for the crime of forgery, alleged to have been committed by forging a bond staying a certain judgment of the circuit court of Phillips County, rendered in favor of E. M. Turner against the Dixie Mutual Fire Insurance Company. The instrument of writing alleged to have been forged is set out in full in the indictment, and the sufficiency of the indictment has not been questioned by demurrer or otherwise. A trial resulted in a verdict of conviction, and the court rendered judgment accordingly, and subsequently overruled defendant's motion for new trial. He brings the case here by writ of error.

The bond in question purports to have been signed by the judgment debtor and by certain sureties. The only evidence tending to establish defendant's guilt is this: The sheriff of Phillips County, to whom the bond was delivered, testified that he had no positive recollection as to what person delivered the bond to him, and could not swear who delivered it to him, but thought that it was done either by Judge Fink, the attorney for the insurance company, or by the defendant, and that he believed it was by the latter. Judge Fink testified that he prepared the bond as attorney for the insurance company; but the court would not permit him to state to whom he delivered it. The persons whose names appear as sureties on the bond testified that they neither signed nor authorized the signature, and one of them testified to a conversation with the defendant after he was informed that there was such a bond in the hands of the sheriff; but there was nothing in the conversation tending to incriminate the defendant.

This evidence was not sufficient to connect the defendant with the alleged forgery. There is nothing in the evidence to show that he had anything to do with the instrument except to sign it. There is no proof whatever either that he signed the names of the sureties or that he delivered the bond to the sheriff. Of course, where the forgery is established, the accused may be connected with the crime by circumstances. But here we have no circumstances to connect the defendant with it except the bare fact that he was one of the obligors in the bond, and that he was interested in the insurance company and had employed Judge Fink to represent it in the litigation with Turner. This is not sufficient to justify a finding that the defendant forged the instrument, and for this reason the judgment must be reversed.

The indictment was based upon the following statute: "If any person shall forge or counterfeit any writing whatever whereby fraudulently to obtain the possession or to deprive another of any money or property, or cause him to be injured in his estate or lawful rights,...