Sherrod v. State

• Decision Date: 11 November 1907
• Citation: 90 Miss. 856,44 So. 813
• Court: Mississippi Supreme Court
• Parties: JOSHUA P. SHERROD v. STATE OF MISSISSIPPI

44 So. 813

90 Miss. 856

JOSHUA P. SHERROD v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 11, 1907

March 1907

FROM the circuit court of Claiborne county, HON. JOHN N. BUSH Judge.

Sherrod the appellant, a negro physician, was indicted and tried for forgery, convicted and sentenced to the penitentiary for five years; and appealed to the supreme court.

The indictment contained two counts, the first being for forgery of a paper purporting to be a promissory note for $ 100 payable to appellant, signed "Cynthia Green." The second count charged that the same paper was feloniously uttered by appellant. A demurrer to the indictment specifying several grounds was filed, but no action on the demurrer is shown by the record, although it appears that appellant being arraigned, pleaded not guilty.

The prosecutrix, Madame Green, a negress, whose name is charged to have been forged, testified that she did not sign the promissory note, but admitted receiving $ 100 from appellant claiming, however, that it was part payment by appellant to her for the proceeds of a $ 400 insurance policy on the life of her deceased husband, collected by appellant from the Knights of Honor of the World, of which appellant was an officer. To rebut this testimony the appellant sought to introduce the policy of insurance and other documentary evidence showing that, by reason of nonpayment of dues in the lifetime of the dear departed, the policy had lapsed and was void when he died. The court refused to admit the same in evidence or to allow any questions to be propounded to any witness intended to elicit testimony tending to show such evidence, to be answered by the witness, to the effect that there was no insurance money due on the life of the decedent. The appellant sought to show by his witnesses and himself to testify, that he was not indebted to Madame Green, that he never collected any insurance money; and that the woman had stated to different persons that her deceased husband failed to pay his assessments or premiums in his lifetime to the Knights of Honor of the World, and that she had admitted to several persons that she owed appellant the sum of $ 100, the amount of the note for money loaned her by appellant. The court below refused to admit such evidence.

The opinion of the court further states the facts.

Judgment reversed and cause remanded.

J. McC. Martin, for appellant.

The court below erred in not sustaining appellant's demurrer to the indictment. The indictment failed to comply with Code 1906, §§ 1187, 1192, defining the statutory crime of forgery, and of uttering false instruments. A comparison of the indictment with the statute will show that the demurrer should have been sustained. To fall within the law, the charge must be in the language of the statute. The indictment must pursue the precise and technical language employed in the statute in the definition or description of the offense. Scott v. State, 2 George, 478; Williams v. State, 42 Miss. 329; Dee v. State, 68 Miss. 602; Burgess v. State, 81 Miss. 482.

The prosecutrix, Cynthia Green, whose name is charged to have been forged, testified that the appellant was indebted to her by reason of her connection with the local lodge which, according to her testimony, had insured her deceased husband's life, and that appellant had paid her $ 100 of this amount. Subsequently, when the appellant was upon the stand in his own behalf, his counsel, in order to controvert the testimony of the woman, asked appellant whether he owed her $ 400, or any part thereof. Appellant's answer was, "I do not owe her a thing." On the objection of the district attorney, this question and answer were excluded. The refusal of the court to allow appellant to testify, as shown, constitutes reversible error, under the circumstances. This prosecutrix also testified that her deceased husband's policy for $ 400 was in appellant's hands, and that he owed her that sum on account of the policy, and had paid her only $ 100 on account of the same and was to pay her different instalments of $ 50, until the whole was paid. To controvert this testimony, the appellant sought to show by his testimony that he was in no way connected with the insurance society, that he never received any funds of, nor was indebted to, Madame Green, and that the policy of insurance on the life of her husband lapsed, and become void, before the death of the insured; and appellant sought to introduce, in evidence, the policy itself and other documents to show the correctness of his contention. It was error in the court to refuse to allow the evidence.

"The object of a trial is to ascertain the truth of the facts in issue between the parties. This may be done by evidence addressed directly to such facts, or facts relevant to the issue. As a general proposition, therefore, it may be said that any evidence tending in any reasonable degree to establish the probability or improbability of a fact in issue, no matter how slight its weight may be, is relevant." Elliott on Evidence, sec. 144.

John L. Frierson, on the same side.

The prosecutrix, while denying that she executed the promissory note, payable to appellant, for $ 100, admitted, in her testimony, that she did receive from him $ 100; but claimed that this was a payment on an alleged insurance policy payable to her, on her deceased husband's life. Appellant's testimony was that the $ 100 was a loan to Madame Green, to aid her to start in the restaurant business. The learned district attorney was allowed to question Madame Green at considerable length before the jury about the policy of insurance, placing clearly before them the state's idea that appellant owed her, and had promised to pay her, the face of the policy, $ 400, and had actually paid $ 100 toward liquidation of the debt. When counsel for appellant, on cross-examination of The Madame, made inquiries about the policy, and the alleged debt due thereunder, and sought to introduce the policy in evidence, the court, on the objection of the district attorney, refused to allow cross-examination on the subject, and declined to allow the policy to be placed in evidence, and declined to allow appellant to introduce evidence to show that Madame Green had stated to several different parties, before the trial, that she owed appellant $ 100, evidenced by the note. The action of the court was partial to the state, and constituted reversible error. Elliott on Evidence, sec. 144. Prior v. Oglesby, 39 South Rep., 593. Certainly, the issue was one of fact, rather than of law, and it was not for the judge, but for the jury, to pass upon the same. Decker v. Bryant, 7 Barb. (N. Y.), 183; Clinton v. Rowland, 24 Barb. (N. Y.), 634. The recognized rule is, that the examination in chief should be more restricted than the cross- examination; but here the tables were turned, and while the examination in chief of Madame Green extended through a large latitude, her cross-examination by appellant was restricted to a small part of what was brought out on direct examination. Appellant's legal rights were prejudiced thereby. Buckner v. Buckner, 12 Nevada, 423; Baird v. Bailey, 68 New York, 547; Rapalje's Law of Witnesses, 246; Thompson on Trials, 405; Taggart v....