Nix v. State
| Decision Date | 10 January 1922 |
| Docket Number | A-3693. |
| Citation | 202 P. 1042,20 Okla.Crim. 373,26 A.L.R. 1053 |
| Parties | NIX v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where in a motion for a continuance, the defendant urges that he is a necessary witness in his own behalf, and is physically and mentally unable to stand the strain and tension of a trial and to properly aid and advise his counsel, held, that the overruling of the motion, under the circumstances recited in the opinion, was not error.
The fraudulent alteration of a canceled check, used as a receipt or voucher, bearing the indorsement of the payee, may be the subject of forgery.
(a) Such instrument may be "the writing of another," within the meaning of section 2637, R. L. 1910.
Alleged prejudicial remarks of the court held not to be reversible error.
The venue of the offense of forgery may be shown by circumstantial evidence.
Appeal from District Court, Hughes County; George C. Crump, Judge.
E. R Nix was convicted of forgery in the second degree and sentenced to serve a term of six months in the state penitentiary, and he appeals. Affirmed.
Turner & Lucas, of Holdenville, for plaintiff in error.
S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
E. R Nix, the plaintiff in error, hereafter called the defendant, was convicted in the district court of Hughes county, Okl., on the 6th day of December, 1919, upon an indictment for forgery, charging that the defendant, on the 4th day of May, 1918, was the duly appointed and acting guardian of Minnie McCoy, and that on that day, as guardian, he made and delivered a check drawn upon the American National Bank of Holdenville, payable to his ward, in the amount of $6; that said check was by Minnie McCoy indorsed and presented to the bank for payment, and that she received from the bank the sum of $6; that afterwards, on the 14th day of January, 1919, the defendant, having in his possession this canceled check, bearing the indorsement of his ward, Minnie McCoy, and having and using this check as a voucher against the estate of Minnie McCoy, feloniously and fraudulently altered the same by inserting an "0" between the figure "6" and the "00" following a period, and by adding the letters "ty" to the word "six" as originally written in the check, thus making the amount of this check and voucher to read "$60.00" instead of "$6.00;" that the alteration of this check and voucher was done by the defendant for the purpose of cheating and defrauding his ward, Minnie McCoy, by later presenting the check and voucher as a receipt for money paid his ward in his final settlement and accounting with his ward.
The testimony produced by the state at the trial definitely and sufficiently supported the allegations of the indictment. The defendant did not take the stand and produced no witnesses or testimony in his behalf, except two witnesses introduced as character witnesses, whose testimony was to the effect that the defendant's general reputation as an honest, law-abiding citizen in and about Holdenville, where he lived, was good.
The defendant's assignments of error, for convenience, may be grouped as follows: (1) Error of the court in denying defendant's motion for a continuance; (2) insufficient facts charged and proved to constitute the crime of forgery; (3) prejudicial remarks of the court; (4) that the court erred in his instructions to the jury and in his refusal to give instructions requested by the defendant; (5) error in failing to prove venue.
The motion for a continuance declared, in substance, that the defendant was not physically able to undergo the strain and tension of a trial; that defendant had for months been under the care of a physician, being afflicted with a diseased condition of the prostate gland, and that his metal and physical condition was badly impaired, to such an extent that he had been unable to properly advise with counsel and prepare his defense; that he had recently been examined by three competent physicians, who had recommended an immediate operation, and that a recovery from the operation would require from six weeks to a year. The motion for a continuance was supported by the affidavits of the physicians, in which they stated that the defendant was very nervous, irritable, and unaccountable for his statements and actions. The motion was further supported by the affidavit of John E. Turner, of counsel for the defendant, who stated that the defendant was a material witness in his own behalf, and that he had been unable to concentrate his mind on the case and that it had been impossible to properly prepare for trial; that it was necessary that the defendant be present at the trial and strong enough physically to undergo the strain of a trial, and be in such condition mentally that he could concentrate his mind upon the circumstances and facts connected with the matters with which he stood charged, which he was not able to do at that time. No showing was made, however, indicative of what defendant's testimony would be.
A second and further ground for a continuance was urged, to the effect that Dr. Hugh Scott, a physician who had treated the defendant, was a material witness on behalf of the defendant; that he had recently been recalled into the United States army and was beyond the reach and process of the court; that this witness, if present, would testify that the defendant was in a highly nervous and irritable state of mind, likely to say anything and to commit acts contrary to and in derogation of his former acts, statements, and declarations, and that for more than three months the defendant had been deficient in mental capacity.
The matters and things set out in the motion for a continuance and in the affidavits in support of it, for the most part, indicate that counsel for defendant feared or were apprehensive of defendant's mental capacity, indicating that he was not then of sound mind and not of sound mind at the time of the alleged offense. The record shows that the court so considered the motion, and that he gave the defendant and his counsel opportunity to inquire into the sanity of the defendant in the manner prescribed by law, which offer was by defendant's counsel waived.
After the overruling of the motion for a continuance, the record of the subsequent proceedings shows that the defendant was physically able to be and was present at the trial; that the act of forgery charged was definitely and clearly proved, and that the circumstances surrounding the alteration of the instrument, as charged, were susceptible of no explanation indicative of a want of felonious intent; that the defendant did not take the stand or offer any explanation, and under the circumstances disclosed in this record, irrespective of the state of his health, he could have made no explanation that would have in any way justified the act, save and excepting a plea of insanity.
The defendant was present in the courtroom at the time of the hearing of the motion for a continuance, where the trial judge had an opportunity to observe his physical condition; beyond this, the record shows that the trial judge, for some days previous, had observed the defendant in passing to and from his home in Holdenville. The rule as stated in 16 Corpus Juris, p. 457, is as follows:
The illness of an accused which may prevent him from properly presenting his defense or rendering the assistance to counsel that he otherwise would do is generally held a reasonable ground for a continuance. However, a motion for a continuance because of the illness of a party is addressed to the sound discretion of the trial court--a discretion with which the appellate court will not interfere unless it appears that it was abused to such an extent that prejudice...
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