State of W. Va. v. Poindexter.

• Decision Date: 19 April 1884
• Parties: State of W. Va. v. Poindexter.
• Court: West Virginia Supreme Court

23 W.Va. 805

State of W. Va.

v.Poindexter.

Supreme Court of Appeals of West Virginia.

Submitted January 30, 1884

Decided April 19, 1884.

1. If on the trial of a prisoner in a certain county for the forgery of a certain writing alleged to have been committed in that county, it be proved that the said writing was found in the possession of the prisoner in the said county where he had uttered or attempted to utter the same as trie, and there be no evidence to show that the forgery of said writing was committed iu any other county, the jury from these facts may infer that the forgery of said writing was committed in that county, (p. 813.)

2. A jury empanelled and sworn in a felony case is, while not preseut in court, by the law committed to the custody of the sheriff or other officer, until it is discharged, without any special order of the court committing it to his care. (p. 812.)

3. While it is customary for the circuit court engaged in the trial of a felony ease before its adjournment until the next day to administer to the sheriff"or some of his deputies the usual oath, that he or they "will keep the jury together, and neither speak to them nor permit any other person to do so, until thay return into court," yet there is no law requiring the court to do so, and if the same be done, no additional duty or responsibility is thereby imposed upon the sheriff or other officer, (p. 812.)

4. It is not error in the circuit court to refuse to set aside a verdict in a felony case, because it appears by the record that during the trial the court on a certain day before its adjournment administered such oath to the deputies of the sheriff, and that on the next day the jury appeared in court uin charge of the sheriff," pursuant to their adjournment, (p. 812.)

5. An instruction to the jury, based upon a state of facts wholly unsupported by the evidence adduced upon the trial is properly rejected, although it may correctly propound the law upon the assumed statement of facts.

The facts of the case are contained in the opinion of the Court.

Leonard $ Caldwell tor plaintiff in error.

Attorney-General Watts for the State.

Woods, Judge:

At the duly term of the circuit court of Wood county, 1883, Joseph Poindexter was indicted for the forgery of a certain paper-writing purporting to be the check of one Creed Collins on the Parkersburg National Bank in favor ot Joseph Poindexter for fifty dollars of the purport and effect following:

"Parkersburg, W. Va., April 2, 1883.

"Parkersburg National Bank, pay to Joseph Poindexter or bearer, fifty dollars.

"$50.00 "Creed Collins."

The indictment contained two counts, the first in the usual form, charging the prisoner with the forgery of the said check; the second count charging that the prisoner had in his possession and uttered and attempted to employ as true with intent to injure and defraud, a certain other forged check for the payment of money, pm porting to be made and signed by Creed Collins for the sum of fifty dollars, which was precisely like the check set forth in the first count, except that the date thereof was the 3d day of April, 1882, instead of the 2d day of April, 1883, the prisoner then and there well knowing the said order to be forged, and ending with the usual conclusion. To this indictment the prisoner pleaded "not guilty," and on July 10, 1883, he was tried by a jury, which on the next day returned the following verdict: "We, the jury, find the defendant Joseph Poindexter not guilty as charged in the second count of the within indictment, hut we do find him guilty of the forgery as charged in the first count of the within indictment." When the check set out in the first count was offered in evidence, the prisoner objected to its introduction, but the court overruled his objection, and he excepted, which is the ground of his first hill of exceptions, but before the jury retired to consider of their verdict, the court instructed them, that the check offered in evidence by the State is not such a check as is described in the second count of the indictment, and is therefore not evidence in support of that count, and is only to be considered evidence in support of the charge of the first count of the indictment.

Before the jury retired the prisoner by his counsel asked the court to give the jury seven instructions, numbered respectively from one to seven; the first five instructions were given as requested, the sixth and seventh were refused, and the prisoner again excepted and filed his second bill of exceptions. After the verdict was rendered and before judgment the prisoner moved the court to arrest the judgment and set aside the verdict, which motion was overruled, and the prisoner again excepted and filed his third bit of exceptions in which the court certified all the testimony given at the trial.

The substance of the sixth instruction asked for by the prisoner and refused by the court was, that " unless the jury believed from the evidence that the signature of Creed Collins alleged to be forged to the check or order produced in evidence, resembled his genuine signature so much as to deceive men of ordinary business capacity, then they must find the prisoner not guilty." This instruction is clearly erroneous, for if the forged instrument be in the usual form of such an instrument, and regular upon the face of it, and nothing appears to cause a man of ordinary prudence to suspect its genuineness, it may and ordinarily does, possess as much influence among persons unacquainted with the genuine signature of the alleged maker, and is as well calculated to deceive and defraud them as a forged signature, closely resembling the genuine would be likely to deceive and defraud men of ordinary business capacity, who were, reasonably well acquainted with the genuine signature of him whose name is alleged to have been forged. In the great majority of ordinary business transactions, where commercial paper of all kinds is transferred, the paper is accepted not because the transferees are at all acquainted with the signature of the maker of the note, or of the drawer or acceptor of the bill, of whom in many cases they have never heard, but upon their faith in, and their knowledge of the pecuniary responsibility of the person from whom they receive the instrument. Ordinarily men interest themselves very little in regard to the maker, drawer or acceptor, unless they have doubts about the responsibility or good faith of their endorser.

The court did not err in refusing to give the prisoner's sixth instruction to the jury. The seventh instruction asked for by the prisoner, which the court also refused to give was in these words:

41 The jury are instructed that criminal intent is a necessary and essential constituent of the crime of forgery, and, like every other issue in the case, must be conclusively established by the evidence; and if the jury believe from the evidence that the prisoner, at the time of the alleged, forgery', was laboring under a temporary diseased state of mind, the effect of a long continued state of intoxication, and that while in such a condition of mind did not know what he was doing, then he was not capable of exercising criminal intent and the jury must find him not guilty."

The evident purpose of this instruction, was to call the special attention of the jury to such portions of the evidence as tended to show the intemperate habits of the prisoner, the peculiar, excited condition of the prisoner's mind when intoxicated, tending to create in their minds, that reasonable doubt of his capacity to have the criminal intent to defraud, necessary to constitute the crime of forgery. It is not to he doubted, that if the prisoner at the time he forged the said writing was from habitual drunkenness, or any other cause, actually insane, he could not be found guilty, for in that case he could not be said to possess the capacity to form any criminal intent, and if the instruction had been confined to that point it would have been unobjectionable. But it confounds the crime of forgery, with the false signing or making of the alleged forged or counterfeited writing. The crime of forgery does not consist alone in the false making or materially altering of any writing which, if genuine, might have legal efficacy, or create a legal liability, for all this may be done and no...