Horn v. State
| Citation | 238 P. 966,31 Okla.Crim. 347 |
| Decision Date | 16 May 1925 |
| Docket Number | A-4363. |
| Parties | HORN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Sept. 19, 1925.
Syllabus by the Court.
An information charging forgery should set out the forged instrument in full or excuse the failure to do so by proper allegation. But the failure to do so does not constitute reversible error in the absence of material prejudice to a defendant.
In a case where the state does not rely wholly upon circumstantial evidence, a defendant is not entitled as a matter of right to an instruction upon the law of circumstantial evidence, and in any case where no request for such instructions is made and no exception taken to the failure of the court to so instruct, is not reversible error.
The jury are the exclusive judges of the facts, and, where the evidence reasonably supports the verdict, the court will not weigh the evidence and disturb the verdict, notwithstanding there may be conflicting evidence.
Appeal from District Court, Craig County; A. C. Brewster, Judge.
Arthur Horn was convicted of the crime of uttering a forged instrument, and appeals. Affirmed.
Theo. D. B. Frear, of Vinita, for plaintiff in error.
George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen for the State.
For brevity and convenience the plaintiff in error will be referred to as defendant, as in the court below. The defendant was convicted in the district court of Craig county for the crime of uttering a forged instrument, the release of a mortgage, and sentenced to a term of seven years in the penitentiary. The following assignments of error are argued in the brief: First. That the information is defective. Second. Refusal of requested instructions. Third. Failure of the court to properly instruct on circumstantial evidence. Fourth. Insufficiency of the evidence to sustain a conviction. These assignments will be considered in the order presented.
The information on which the defendant was tried does not contain a copy of the forged instrument, but contains instead the allegation that the release has been destroyed or is in the possession of some one to the informant unknown. That informant is unable to set out said instrument. The release is rather fully described in the information. This allegation does not bring the information within the provisions of section 2569, Compiled Laws 1921, which provides that when an instrument which is the subject of an indictment or information for forgery has been destroyed or withheld by the act or procurement of the defendant, and the fact of withholding or destruction is alleged, the misdescription of the instrument is immaterial. There is no good reason why the county attorney should not have attached or pleaded in full, a copy of the forged release, as the information sets out the fact that it is recorded, giving book and page. A failure to do so is poor pleading. See Arnold v. State, 15 Okl. Cr. 519, 179 P. 897. However, the failure to set out the instrument could in no sense have been prejudicial to the defendant. For, if the description as alleged in the information failed to fully apprise the defendant of the instrument in question, the allegation of the book and page where the same was recorded afforded him an opportunity to fully ascertain the contents, and under this state of facts the error was harmless.
Upon the second assignment the record discloses that defendant requested the giving of three separate instructions, touching the matter of knowledge and intent of the defendant in case the jury should...
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