McDonnell v. State

• Decision Date: 02 December 1893
• Parties: McDoNNELL v. STATE
• Court: Arkansas Supreme Court

24 S.W. 105

58 Ark. 242

McDoNNELL v. STATE

Supreme Court of Arkansas

December 2, 1893

Error to Faulkner Circuit Court, JAMES S. THOMAS, Judge.

McDonnell was indicted for forgery. The indictment contained two counts, the first of which, omitting the caption and formal commencement, alleged as follows:

"The said Will McDonnell, on the 3rd day of February, A. D. 1891 in the county and State aforesaid, fraudulently and feloniously did forge, counterfeit and alter a certain writing on paper, purporting to be a school warrant, which said writing on paper is in words and figures as follows to-wit:

'No 32

District School Fund, District No. 38.

January the 30, 1891.

Treasurer of Faulkner County, Arkansas:

Pay to M. G. Bailey, or order, the sum of twenty-five ($ 25.00) dollars, for teaching school, out of the school fund.

J. A OLIVER, H. M. LAWRENCE, Directors.'

and being endorsed on the back 'Mr. M. G. Bailey,' and with the further endorsement on the back, to-wit:

"'Received on the within warrant $ 25.00 twenty-five dollars, in full payment.

February 3, 1891.

M. G. BAILEY, W. McDONNELL.'

with intent then and there fraudulently and feloniously to obtain possession of the property of J. A. Oliver and H. M. Lawrence, and of S. P. C. Smith and of School District No. 38 of Faulkner county, Arkansas, against the peace and dignity of the State of Arkansas."

A second count of the indictment charged that defendant feloniously and fraudulently uttered the instrument which is set out in the first count. It is contended that there was a variance between the second count and the evidence, in that this count alleged that the warrant was endorsed by "Will McDonnell," when in fact it was endorsed by "W. McDonnell."

Defendant demurred to the indictment because it charged more than one offense, and because the facts stated did not constitute a public offense within the jurisdiction of the court. The demurrer was overruled, and defendant excepted.

The trial developed the following testimony on behalf of the State: Oliver testified: "In January, 1891, I was school director of School District No. 38, in Faulkner county, Arkansas, as was also H. M. Lawrence. On the 30th of that month I drew a warrant on the treasurer of the county in favor of M. G. Bailey, a school teacher in the district, for twenty dollars, and signed said Lawrence's name to it, he having authorized me to do so. I recognize the warrant shown in court as the warrant I drew. I think I wrote in the face of the warrant the figures '$ 20.00.' I know nothing about the brackets around the figures, which are now ($ 25.00). The word 'five' has been inserted in the warrant since it left my hands." Lawrence and two other witnesses testified that they saw the warrant after it was issued, and that it was written for $ 20.00. Smith testified: "In January and February, 1891, I was treasurer of Faulkner county. On the 3rd day of February, 1891, the defendant brought the order here exhibited in court to me, and I paid him $ 25.00 on it. The word 'five' was written dimly with a pencil, and I was afraid it would rub out, and it would not then show $ 25.00 on its face as it showed payment of $ 25.00 on its back, and my recollection is that I wrote in the face of the warrant the figures and marks now found on same, to-wit, ($ 25.00), but I am not positive of this. Defendant and I had no conversation at the time about his making it good to me if there was anything wrong with it. I afterwards discovered that there was something wrong about the order." The State here introduced the warrant and read the same in evidence to the jury.

The defendant testified in his own behalf as follows: "I was running a gin for another party in the town of Greenbrier, in Faulkner county, Arkansas, in January, 1891, and went into the store of the witness, Moore, when one of them said to me that Bailey, a negro, had a school order for $ 20, which he wished to sell, and there were $ 2 or $ 3 in it if I wanted to buy it. I bought it, paying $ 18.50 or $ 19.50 for it. Did not look at it. Took Mr. Moore's word for the amount. I afterwards gave the order to one Buno, requesting him to carry it to town and get it cashed for me, but he gave it back to me the next day. Sometime afterwards I came down to Conway and saw Treasurer Smith, and when I gave the order to him he called my attention to the fact that the order was for $ 25, and I told him I understood it was for $ 20, and if there was anything wrong about it I would correct it. I identify the letter shown to me by the prosecuting attorney as the one I wrote to Treasurer Smith."

A. R. Witt testified on behalf of the State: "I kept the postoffice at Conway four years, and had occasion to compare the handwritings of different parties, and consider myself competent to compare writings and give an opinion as to their identity. Witness then compared the writing in the letter written by defendant to Treasurer Smith with the word "five" in the warrant, and gave it as his opinion that both were written by the same party. Samuel W. Williams testified that he had practiced law forty years, and had had a great deal of experience in comparing handwritings. Witness believed that the word "five" in the warrant was written by the person who wrote the letter to Smith. D. R. Fones testified to the same effect. Witness was cashier of the Bank of Conway, and had had considerable experience in comparing signatures.

Defendant has appealed from a judgment upon a verdict against him. The errors assigned by him are stated in the opinion.

Cause reversed and remanded for new trial.

A. S. McAKennon for appellant.

1. The common law rule that the pleader must set out in the indictment the forged writing, according to its tenor, in words and figures--a fac simile--has not been modified by statute. Mansf. Dig. sec. 2117; Bish.Cr. Pr. (3 ed.) sec. 403; 2 Arch. Cr. Pr. and Pl. (8 ed.) p. 1567, note.

2. The endorsement was not part of the order. 2 Bish. Cr. Pt. 410. But, having copied it in the indictment, it became material, and must be proven as laid. 1 Gr. Ev. (13 ed.) secs. 63-4-5; 1 Bish. Cr. Pr. (3 ed.) secs. 483, 486; 2 id. secs. 407-8. The variance was fatal. 1 Gr. Ev. secs. 64, 65; 2 Bish. Cr. Pr. 406; 2 Arch. Cr. Pr. and Pl. 1567-8 and notes; 32 Ark. 609.

3. If the figures were put in the order after the warrant passed from defendant's hands, it was not his instrument, and could not be put in evidence against him. 8 Ark. 500; 132 id. 609. See also 1 Gr. Ev. secs. 64-5; 2 Arch. Pr. and Pl. 1567-8; 2 Bish. Cr. Pr. 406 and notes 3, 5; Ib. 408, note 8; Ib. 408, notes 5-9.

4. The indictment alleges an intent to defraud the directors and school district No. 38. This was impossible, and was and could not be proved.

5. The record shows that the case was tried by eleven jurors. 1 Thompson, Trials, p. 5.

James P. Clarke, Attorney General, for appellee.

1. The indictment speaks for itself.

2. The comparison of the forged writing with a letter written by defendant, and the opinions of witnesses that both were written by the same person, was, allowable. 1 Gr. Ev. (4th ed.) secs. 579-582.

3. The first instruction was properly refused. Figures are not a part of an order or bill, and need not be described or proved. 1 Mass. 62; ib. 202; 2 Mass. 397; 7 Met. 50; 7 Gratt. 651; 5 Ohio 5; 100 Ill. 263. If the figures were added after the warrant was passed by defendant, they were not part of it, and might have been omitted in the description. 8 Leigh, 732; 6 Rand. (Va.) 693.

4. It was not necessary to prove an intent to defraud all the persons named. An intent to defraud any or all is sufficient. Russ. & Ryan, 291; ib. 169; 8 Car. & P. 274: 1 Johns. (N. Y. 320; 25 Wend. 472.

OPINION

WOOD, J.

In view of the proof, it was unnecessary to employ the word "alter" after the word "forge" in the indictment. For the sake of clearness, it might have been omitted. The indictment is not defective on that account, however. The word "alter" may be treated as surplusage. The demurrer was properly overruled. 1 Bish. Cr. Pro. secs. 481 to 485; also secs. 401, 419, 426; 1 Wharton's Prec. of indictments, 264, 267; 3 Rice on Ely. p. 773; Acts of 1893, p. 67.

It appears that the forgery in this case consisted in the alteration of a school warrant. The director who wrote it testified that he thought he wrote in the face of the warrant the figures $ 20.00; that he knew nothing of the brackets around the figures, which are now ($ 25.00); that the word "five" had been inserted in the warrant since it left his hands. The treasurer (Smith) testified that he paid the appellant $ 25 on the warrant exhibited in court; that the word "five" was written dimly with a pencil and, being afraid it would rub out and not show $ 25 on its face, as it showed payment of $ 25 on its back, his recollection is, he wrote in the face of the warrant the figures and marks now found on same, to-wit, "($ 25.00)," but of this he was not positive. Other witnesses, who saw the warrant before it was received by the treasurer, state that it was written for twenty dollars. One said he did not know about any figures in the face of the...