Quertermous v. State

• Decision Date: 28 September 1914
• Docket Number: 133
• Citation: 170 S.W. 225,114 Ark. 452
• Parties: QUERTERMOUS v. STATE
• Court: Arkansas Supreme Court

170 S.W. 225

114 Ark. 452

QUERTERMOUS v. STATE

No. 133

Supreme Court of Arkansas

September 28, 1914

Appeal from Arkansas Circuit Court, Northern District; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

J. M Brice, for appellant.

1. Appellant had the right to rely upon the sheriff's return as true, and since he did not discover the error until immediately before the trial, too late to procure either the attendance or the deposition of the absent witness, and since the testimony of Bradford was of the utmost importance to appellant, it was a manifest abuse of discretion to deny appellant's motion for a continuance.

2. The indictment is fatally defective in that it does not set out the claim. 77 Ark. 537; 96 Ark. 101; 17 Am. & Eng. Ann Cases, 496.

3. A probate court is presumed to pass upon claims against estates of deceased persons upon their merits. The forgery of an endorsement to a claim does not constitute forgery within the meaning of the criminal statute. Kirby's Dig §§ 125, 130; 19 Cyc. 1380, 1381.

When the administrator signed the indorsement alleged to have been forged, he waived service of notice of the filing of the claim, and such waiver was tantamount to a rejection of the claim and referred it to the probate court for action. 29 Ark. 238; Kirby's Dig., § 123. See also, 9 Am. & Eng. Ann. Cases, 1110; 58 S.E. 621.

4. When appellant's counsel on examination of the administrator, Fowler, sought to test his memory and credibility after he had stated that he had read and remembered all on the page of the claim where his indorsement appears, it was error on the part of the court, in response to the State's objection, to remark, "he may answer that question, but a man would have a remarkable memory to remember every word on a page." This was an expression of opinion on the part of the court unfavorable to appellant and necessarily prejudicial. 107 Ark. 469; 76 Ark. 110.

5. The State, in seeking to impeach appellant, was permitted to ask various witnesses if they were acquainted with his reputation "for truth and honesty" and "for truth and veracity." This was error. The statute must be strictly followed in impeaching a witness. Kirby's Dig., § 3138; 100 Ark. 321; 53 Ark. 387; 59 Ark. 50.

6. Where the proof shows that the jury were permitted to separate without the defendant's consent, and that they were exposed to improper influences, the burden is on the State to prove that they were not so exposed, or if so that they were not influenced thereby. 57 Ark. 1; 76 Ark. 487; 44 Ark. 115; 40 Ark. 454; 109 Ark. 193.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. On the facts the evidence is sufficient to sustain the verdict. 109 Ark. 130; Id. 135.

2. It is not error to overrule a motion for continuance where the absent witness is not within the jurisdiction of the court. 108 Ark. 594.

3. The indictment was sufficient. Kirby's Dig., § 2229; 11 S.W. 575; 29 Mich. 31; 68 Mich. 454.

4. The question raised in support of the motion in arrest of judgment, to the effect that the forging or altering a claim against an estate does not constitute forgery, since there is no validity to the instrument unless it is approved by the probate court, is without merit.

A motion in arrest of judgment can only question the fact as to whether or not a public offense has been committed, and the crime of forgery is charged in apt language in the indictment.

5. There was nothing prejudicial in the court's remark, to which appellant objects. If appellant thought it was prejudicial, he should have objected at the time and requested an instruction to the jury not to consider it. 108 Ark. 594, 601.

6. In the inquiry touching appellant's reputation, the court required the State's attorney to ask of the witnesses appellant's reputation for truth and veracity. There was no error. Standard Dict., 1913 ed. p. 2642; 36 Ark. 141; 100 Ark. 199; Id. 321; 88 Ark. 72.

OPINION

MCCULLOCH, C. J.

The charge in this case against appellant is forgery, in altering the indorsement of an administrator on a claim presented against the estate so as to show an allowance of the claim by the administrator, whereas the indorsement signed by the administrator was a disallowance of the claim. The indictment sets forth in hec verba the true indorsement signed by the administrator showing that the claim was "not allowed," and also the altered indorsement showing that the word "not" had been erased. The claim itself is not set forth in the indictment, but is described as "Claim No. 5, A. B. Quertermous v. The Estate of G. W. Fraser, deceased, Arthur Fowler, Administrator, said claim being for $ 299.25."

The evidence adduced by the State was sufficient to prove that the administrator refused to allow the claim and made his indorsement thereon accordingly, showing that is was "not allowed;" that the claim as thus indorsed was delivered by the administrator to appellant, who carried it to the office of the probate court clerk and filed it, and that when filed by appellant the word "not" was erased so as to show the allowance of the claim.

There was a demurrer to the indictment, and it is now insisted that the indictment was insufficient because the claim, which bore the indorsement of the administrator, was not set out in the indictment.

The law is well settled that the instrument alleged to have been forged must be set out in the indictment; the object of the rule being not only to put the defendant upon notice as to the nature of the instrument he is charged with forging, but also that the court may be able to determine upon the face of the indictment whether the instrument is a writing that can be forged. Crossland v. State, 77 Ark. 537, 92 S.W. 776. Now, the indictment in this case sets forth fully the indorsement which is alleged to have been altered. Even if the indorsement be treated as a part of the claim, yet the material part of the instrument, so far as concerns the forgery, is the indorsement; and it is sufficient if that be set forth in the indictment, together with such a description of the claim as is sufficient to show its materiality and to apprise the accused of the nature of the charge against him. The indictment in this case describes the claim with sufficient particularity to put the accused on notice and to show the nature of the claim. The particular form of the claim is immaterial for the reason that the accused is not charged with altering it in any manner.

In the case of State v. Maupin, 57 Mo. 205, the charge in the indictment was that the defendant had forged a judge's certificate to a fee bill, and the indictment set forth, in extenso, the certificate, but not the fee bill. On demurrer the indictment was held to be sufficient.

It is also urged that the indictment in this case charges that appellant forged the claim, but we are of the opinion that when the whole instrument is read together it is made very clear that the charge only involved the forgery, by alteration, of the indorsement.

The statute under which the indictment was preferred reads as follows: "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, or if he shall utter and publish such instrument, knowing it to be forged and counterfeited, he shall, on conviction, be confined in the penitentiary not less than two nor more than ten years." Kirby's Dig., § 1714.

It will be seen that the statute is very broad and makes it an offense to forge any writing whatever to deprive another of money or property "or to cause him to be injured in his estate or lawful rights." The statute governing the duties of administrators and executors, and of probate courts, with respect to claims against estates, provides that the executor or administrator, if satisfied that an exhibited claim is just, shall indorse thereon his approval and allowance of the same and shall keep a list of the demands and make return thereof to the probate court at least once every year. The statute also makes it the duty of the court to examine the claim, whether allowed by the administrator or not, to determine its validity.

It is argued that the alleged alteration is immaterial for the reason that is did not affect the force or validity of the claim inasmuch as it had to be allowed by the court. We think that contention is unsound for the reason that the procedure is different where the claim is allowed by the administrator from what it is in case the claim is disallowed. The proceedings cease to be adversary when the administrator or executor allows the claim, though it is the duty of the court to examine the same before allowing and classifying it. The statute does not contemplate a regular trial on a claim which has been allowed by the administrator, but a mere examination by the court to such an extent as to enable the court to determine whether the claim appears to be a just one. Therefore an alteration of the indorsement of disallowance changes the status of the claim and thus deprives the estate of a lawful right within the meaning of the statute. The indorsement of an executor or administrator, showing his allowance, has at least persuasive force with the court in passing upon its validity, and a change in the indorsement necessarily affects the rights of the estate, which, under the statute, are to be safeguarded both by the executor or administrator and by the probate court. Our conclusion, therefore, is that the writing alleged to have been forged was of such a character as falls within the terms of the statute.

Appellant moved for a continuance of the case on account of...