State v. Brown

• Decision Date: 05 May 1911
• Docket Number: 2163
• Citation: 39 Utah 140,115 P. 994
• Court: Utah Supreme Court
• Parties: STATE v. BROWN

115 P. 994

39 Utah 140

STATE v. BROWN

No. 2163

Supreme Court of Utah

May 5, 1911

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Arthur Brown was convicted of forgery and he appeals.

See also, 36 Utah 46, 102 P. 641.

AFFIRMED.

Powers and Marioneaux for appellant.

A. R Barnes, Attorney-General, for the State.

STRAUP J. FRICK, C. J., McCARTY, J., concurring.

OPINION

STRAUP, J.

The defendant was convicted of the crime of passing a forged instrument. In the information the person defrauded, and upon whom the forged instrument was passed, was alleged to be "the Commercial National Bank, a corporation duly organized and existing under and by virtue of the laws of the United States." The instrument, as alleged, was a certificate of deposit issued at Salt Lake City, by the "Commercial National Bank," payable to A. M. Bartholdi, whose name was forged on the back thereof, which instrument the defendant, with knowledge of the forged indorsement, presented to the bank at Salt Lake City for payment.

The proof showed that the corporate name of the bank was the "Commercial National Bank of Salt Lake City." This, it is urged, constituted a fatal variance. I think not. Upon the record it is very clearly made to appear that the defendant well knew that the corporation to which the proof related was that to which the information referred. The alleged variance in no manner affected the identity of the bank. Neither the court nor the jury, nor the defendant, could have been at any loss, because of the alleged variance, to understand or determine what bank or corporation was referred to. Proof was also made that the bank was generally known by the name of the "Commercial National Bank," and that the defendant, at the time of the offense, was, and prior thereto had been, one of its employees. We have a statute (Comp. Laws 1907, section 4738) which provides that "when an offense shall involve the commission of, or an attempt to commit, a private injury, and shall have been described with sufficient certainty in other respects to identity the act, an erroneous allegation as to the person injured, or intended to be injured, shall not be material." Because of this statute, and under the circumstances disclosed, the mistake in the name of the bank cannot be deemed material. (People v. Potter, 35 Cal. 110; People v. Hughes, 29 Cal. 257.) I think the bank was so described in the information as to admit of no mistake on the trial, or in the future, as to its identity. (Commonwealth v. Jacobs, 152 Mass. 276, 25 N.E. 463; Davis v. State, 105 Ga. 808, 32 S.E. 158.)

The defendant placed his previous good character in evidence. Considerable testimony was given tending to support it. No evidence was given to dispute it. The defendant requested the court to charge as follows: "The jury are instructed that the law in a criminal case clothes the defendant with the presumption of innocence; and, when the proof tends to overthrow this presumption and to fix upon such defendant the presumption of guilt, the latter is permitted to support the original presumption of innocence by proof of good character. Such good character, when proven, is a circumstance tending, in a greater or lesser degree, to establish his innocence. It is of value not only in doubtful cases, but also when the testimony tends very strongly to establish the guilt of the accused. When proven it is a fact in the case, and it is not to be put aside by the jury in order to ascertain if the other facts and circumstances considered in themselves do not establish the defendant's guilt beyond a reasonable doubt; but such good character, if proven, should be considered by the jury in connection with all the other testimony in the case and not independently thereof, and the guilt or innocence of the defendant determined from all the testimony in the case. And when so considered, no matter how conclusively the other evidence in the case considered by itself may point to the guilt of the defendant, such good character, if proven, may be sufficient to create a reasonable doubt of defendant's guilt, and, too, where such doubt would not otherwise exist but for such good character, and it may lead the jury to believe, in view of the probabilities, that a person of such good character would not be guilty of the offense charged, and that the other evidence in the case is not true, or that the witnesses in some way may be mistaken therein." The court gave the request, except the portion italicized.

The defendant also requested the court to charge that: "Your are further instructed that good character is an important fact with every man, and never more so than when he is on trial charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly in consistent with any such crime. There are cases--and it is for you to say what weight it shall have in this case--where it becomes a man's sole dependence, and yet may prove sufficient to outweigh testimony of the most positive character. The most clear and convincing cases are sometimes satisfactorily rebutted by it and a life of unblemished integrity becomes a complete shield of protection against what otherwise may appear to be a proof of guilt. Good character may not only raise a doubt of guilt which could not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence, and, being in, the jury have the right to give it such weight as they think it entitled to." This request the court refused.

The portion of the first request given by the court was the only charge given on the question of good character. The refusal of the court to charge as requested is assigned as error. The questions presented by this assignment are: (1) When evidence of previous good character is adduced, is it the duty of the court, when requested, to charge on the subject or question of good character? (2) If so, what is meant by that? (3) Was that duty properly discharged? (4) If not, was the defendant harmed?

A few courts have held that it is not proper to charge at all on the question or subject of good character on the theory that to do so is singling out and charging on the weight and effect of evidence, and is invading the province of the jury. Were it not that jurors can hardly be expected to properly apply evidence of good character, understand the purpose for which it may be considered and the legal effect which they may give to it, and of the dangers of incorrect inferences and illogical conclusions from jurors, if not aided by the court, there would be much force to this theory. But for the reasons suggested, courts, with substantial unanimity, have held that it is the duty of the court when requested, to charge on the subject or question of good character. The first question may, therefore, readily be answered in the affirmative.

Now what is meant by it? The undoubted meaning is to state to the jury the rules applicable to that kind of evidence, the purpose for which it may be considered by them, and the legal effect which they in their judgment may give to it.

Proof of good character, in the particular that it is indirect, as distinguished from direct or positive evidence, is not unlike other evidence which is merely circumstantial. In criminal cases the rule in this, as in most jurisdictions, is that where an essential fact is claimed to be established by circumstances, it is the duty of the court, if requested, to state to the jury the legal principles or rules applicable to that kind of evidence. As the courts say, this is for the reason that a jury of inexperienced laymen, without assistance from the court, could hardly be expected to apply the rules applicable to that kind of evidence, and, if not so instructed and warned, there is danger of incorrect inferences and illogical conclusions from jurors. ( People v. Scott, 10 Utah 217, 37 P. 335; 2 Colby, Crim. L. 175.) So, too, a jury of inexperienced laymen can hardly be expected to apply the rules applicable to evidence of good character, or to know the purpose or object for which it may properly be considered by them, or the effect which they, in their judgment, may give to it, without assistance from the court. Unless properly instructed and warned, there is danger of incorrect inferences or illogical conclusions from jurors, either for or against the accused. When positive or direct evidence is adduced tending to show that the accused did or did not commit the alleged criminating acts, jurors can, without the aid of the court, readily apply it. When evidence of good character is adduced, the inquiry may very naturally arise to the inexperienced layman sitting as a juror: In what way does that tend to disprove, or controvert, or weigh against positive and direct testimony of the state, or tend to show that it is improbable, or untruthful, or for what purpose may it be considered and what effect given it? Or, after a submission of the case to the jury, and after considering and deliberating upon all of the evidence, certain jurors might entertain a reasonable doubt, as to the defendant's guilt, created by and based upon proof alone of good character, yet might be persuaded to a conviction of the defendant's guilt upon the fallacious conclusion, or erroneous assumption of the law, that a juror, against positive and direct evidence of guilt, is not justified, in any case, to entertain a reasonable doubt so created and supported by good character alone. But the law, as repeatedly declared by the courts, is that good character, which, as expressed by the Georgia court (Shropshire v. State, 81 Ga. 589, 8 S.E. 450), "in this day of large fortunes on the one...