State Oe West Va. v. Petitioner
| Decision Date | 20 November 1886 |
| Citation | 29 W.Va. 147 |
| Court | West Virginia Supreme Court |
| Parties | State oe West Virginia v. Henderson. |
An indictment for uttering and attempting to employ as true a forged writing need not set out the whole writing. It is sufficient to give its purport and effect.
An indictment will not be quashed or abated, on the ground that one of the grand jury, who found it, was not a freeholder.
After a jury has been sworn in a felony case, it is not error for the court at the instance of the State to examine a juror on oath to ascertain, whether or not he is a citizen of the State.
A deed connected with a transaction, with which an alleged forged receipt is connected, is competent evidence on a trial for uttering such forged receipt.
The note, which purports to have been paid with money, of the payment of which the alleged forged receipt is the evidence, is competent evidence upon a trial for uttering such forged receipt.
Upon such trial it is proper to ask a witness as to the money mentioned in the note "How was it applied?" and to admit the answer "It was applied on the land mentioned in the deed."
The receipt described in the indictment agrees with the receipt offered in evidence on the trial with the exception, that the endorsement on the latter: "Witness Susan M. Armstrong" is omitted from the former: Held No material variance,
Upon the trial on an indictment for uttering and attempting to employ as true a forged receipt for money knowing it to be forged the record of a cause in chancery between the person so uttering and the person, whose name is alleged to have been forged, which record includes a deposition in behalf of the accused to the genuineness of the receipt, all tends to show, that the accused did utter and attempt to employ as true said receipt, and is competent evidence.
Upon a trial for uttering a forged receipt witnesses may testify to the handwriting of the alleged forged receipt and being acquainted with the signature of the person, whose name is signed thereto may in the presence of the jury write the letters of his name, as they think he writes them, and the jury may compare the letters so written with the letters in the alleged forged signature,
In this State there can be no "prosecutor" in a felony-case, and he, who has been injured by the felony, stands as any other witness and is not a party to the prosecution; therefore the general rule, that witnesses testifying in a cause may be cross-examined as to their feelings, bias, &c, towards either party to the cause, can not apply to such witness: and in the trial of a forgery-case this question propounded to a witness on cross-examination: "Are you not indebted to the prosecuting witness'?" was incompetent, the bill of exceptions not showing any reason to take it out of the general rule; as that the question had been asked after he had been examined touching the reputation for truth of the "prosecuting'r witness.
Upon such trial it is proper to inquire into the pecuniary condition of the person, in whose favor the alleged forged receipt purports to have been given at or about the date of such receipt.
Upon such trial it was not error to ask a witness, if the handwriting of the person, whose name was alleged to have been forged, had changed.
VS. Forgery Evidence.
Upon such trial the jury will not be permitted to receive the proved but not admitted signature of the person, whose name is alleged to have been forged, so as to compare the two signatures.
Much less would it he proper to permit evidence to go to the jury by a witness, that he had compared the alleged forged signature with one admitted to be genuine, and that they were exactly alike. 14. Forgery Evidence Reputation of the Accused Neighborhood.
One, who is well acquainted with the members of a community, who best know the person, whose reputation for honesty is the subject of inquiry, is competent to give evidence as to reputation, and such evidence is not confined to his reputation in the immediate vicinity of his residence.
C. C. Higginbotham for plaintiff in error.
Alfred Caldwell, Attorney-General, for the State.
Johnson, President:
On the 4th day of June, 1885, John B. Henderson was in the Circuit Court of Upshur county indicted for forgery. On the 17th day of February, 1886, the prisoner demurred to the indictment, which demurrer was overruled; and thereupon the prisoner pleaded not guilty. On the 11thday of January, 1886, the trial of the prisoner before a jury commenced; and on the 23d day of the same month the jury rendered a verdict-of " guilty as charged in the indictment." Whereupon the prisoner moved the court to set aside the verdict and grant him a new trial on the ground of erroneous rulings by the court during the trial as set forth in twenty-four bills of exceptions, which motion the court overruled; and the defendant excepted. The court then sentenced the prisoner to be confined in the penitentiary of the State for the term of two years.
To this judgment the prisoner obtained a writ of error.
Neither the evidence nor the facts are certified. The errors, of which the prisoner complains, are saved in his several bills of exceptions, which will be considered seriatim.
The first error assigned is the overruling of the demurrer to the indictment. The indictment is good. The same particularity in the framing of indictments, that was required at common-law, is not now required. Sec. 6 of chap. 158 of the Code provides, that " in a prosecution, for forgery or uttering or attempting to employ as true any forged instrument or other thing, and in a prosecution for any of the offences mentioned in chapter one hundred and fifty-six, it shall not be necessary to set forth any copy or fac-simile. of such instrument or other thing; but it shall be sufficient to describe the same in such manner, as would sustain an indictment for stealing such instrument or other thing, supposing if to be the subject of larceny." The indictment here answers all the requirements of this statute. It charges " that John B. Henderson, to-wit, on the 3d day of February in the year 1835, in said county feloniously did utter and attempt to employ as true a certain forged writing purporting to be a receipt purporting to be subscribed by one Ebenezer Leonard, which said writing is of the following purport and effect, to-wit: " &c. This would, certainly be a sufficient description of the receipt, if the indictment had been for the larceny thereof. (State v. Jackson, 26 W. Va. 250; State v. Hurst, 11 W. Va. 54; State v. Poindexter, 23 W. Va. 811). It is objected that the indictment is bad, because there is no averment therein, that the accused was indebted to Leonard. Such an averment never was under any rule of law necessary in an indictment for forgery. The court properly overruled the demurrer.
The first bill of exceptions is to the refusal of the court to quash the indictment, on the ground that Alexander Biggs, one of the grand-jurors, who found the indictment, was not a freeholder, at the time the indictment was found. The prisoner in support of his motion offered to introduce evidence to establish that fact; but the court overruled the motion and refused to permit the evidence to be offered. This was not error. The 12th section of chapter 138 of the Acts of 1882 provides, that "No presentment or indictment shall be quashed or abated on account of the incompetency or disqualification of any one or more of the grand-jurors, who found the same." But it is insisted by counsel for plaintiff in error, that sections 2, 3 and 4 of the same chapter require, that grand-jurors shall be freeholders, and that section 12 does not apply, as it would be in conflict with the said previous sections and destroy their effect. Section two, which provides, that the list, from which the grand-jurors shall be drawn, shall contain only freeholders, is clearly modified by section 12, which says in effect, that, if one drawn on the grand-jury is not a freeholder, that fact shall not vitiate an indictment found by him. This is a wise provision, because it would be very detrimental to the public interests, if perhaps a hundred indictments should be liable to be quashed or abated, because one, who was not a freeholder, happened to be placed on the list and was drawn as a grand-juror.
The court did not err to the prejudice of the prisoner in examining on oath the juror, Crawley, touching his citizenship. It seems from the exception, that, after the jury was sworn, the State moved the court to examine Crawley on oath to ascertain, whether he was a citizen of the State, which the court did and being satisfied of his citizenship permitted him to remain on the jury. This could not possibly have prejudiced the prisoner. What would have been the effect, if the court had been satisfied, that he was not a citizen of the State, and had required him to stand aside and...
To continue reading
Request your trial
-
State v. Henderson
... 1 S.E. 225 (29 W.Va. 147) State v. Henderson. Supreme Court of Appeals of West Virginia. November 20, 1886 1. Forgery—Indictment—What It should Set Out. An indictment for uttering, and ......