State v. Cotts.
| Decision Date | 07 September 1901 |
| Citation | 49 W.Va. 615 |
| Parties | State v. Cotts. |
| Court | West Virginia Supreme Court |
A mere business or other conversation by a juror with another person, entirely foreign to the case on trial, in the presence and hearing of the sheriff and other jurors, although reprehensible because it shows a lack of respect for the law on the part of both officer and juror participating in it and is unseeming and reproachful in the administration of justice, will not render a verdict void. (p. 617).
Points 3, 4, 5 and 6 of the syllabus in the case of the State v. Cartright, 20 W. Va. 32, points 15, 16 and 17 of the syllabus in the case of State v. Robinson, 20 W. Va. 713, points 1, 2, 3 and 4 of the syllabus in State v. Harrison, 36 W. Va. 729, and point 5 of the syllabus in State v. Belknap, 39 W. Va. 427, examined and approved, as correctly stating the law relating to the effect of the improper separation or misconduct of jurors upon their verdict, (p. 623).
"While all the jurors in a felony case are attended by proper officers, there can be no such separation as will raise a presumption of impurity in their verdict and throw upon the State the burden of showing, beyond a reasonable doubt, that the prisoner has suffered no injury by reason thereof, the verdict being against him; but, under such circumstances, there may be such misbehavior on the part of the jurors as will raise such presumption, (p. 628).
Error to Circuit Court, Marshall County. W. J. Cotts was convicted of forgery, and brings error.
Affirmed.
W. W. Arnett and J. Howard Holt, for plaintiff in error. R. H. Freer, Atty. Gen., Alex. DitlIN, W. C. Meyers and S. O. Boyce, for the State.
poffenbarger, judge:
In the circuit court of Marshall County, on the 4th day of August, 1900, the defendant herein, W. J. Cotts, was sentenced to three years' imprisonment in the penitentiary of this State, upon a verdict of guilty, found by a jury on the 5th day of July, 1900, upon an indictment, charging him, in the first count thereof, with having unlawfully and feloniously forged the endorsement of J. G. Haberfield on the back of a promissory note for two hundred dollars, signed by said defendant, dated Wheeling, West Virginia, July 27, 1899, and payable four months after date to the order of said Haberfield at the Bank of Wheeling, and, in the second count, with having unlawfully and feloniously uttered and attempted to employ as true said forged endorsement, with intent to defraud, he knowing the endorsement to be forged.
Before judgment was entered on the verdict, the defendant moved to arrest the judgment and to set aside the verdict and grant him a new trial, and, in support of the motion, filed a number of affidavits to show that there had been such misconduct on the part of some of the jurors as to vitiate the verdict. Counter affidavits of jurors, officers, and others were filed on behalf of the State. The memorandum at the foot of the order recites that the defendant took twelve bills of exceptions, but, as only bill of exception No. 1, containing the affidavits, is found in the record, no notice can be taken of the others. The court overruled the motion and the defendant excepted..
The defendant assigns as grounds of error, first, the overruling of the demurrer to the indictment, second, the overruling of the.motion to set aside the verdict, and, third, the overruling of the motion to set aside the verdict on the ground of the separation or misconduct of the jury. As the evidence does not appear, the second assignment cannot be considered, and as to the first, nothing is presented in the brief of the plaintiff in error, the argument of his counsel being confined solely to the question of misconduct on the part of the jury. In substance and all material respects, the indictment follows the form found in Mayo's Guide, which has for many years been used both in this State and Virginia, and was approved by this Court in State v. Tingler, 32 W. Va. 546.
It is based upon section 5 of chapter 146 of the Code, which reads as follows: "If a person forge any writing, other than such as is mentioned in the first and third sections of this chapter, to the prejudice of another's right, or utter or attempt to employ as true, such forged writing, knowing it to be forged, he shall be confined in the penitentiary not less than two nor more than ten years."
As this statute makes it an offense to forge any writing to the prejudice of another's right, or, knowing the writing to be forged, utter or attempt to employ it as true, it seems to be clear that such writing may be an endorsement in blank on the back of a promissory note as well as any other, although the name thus forged, without the writing on the face of the note, could not prejudice any one. But the indictment fully describes the instrument upon which the defendant is alleged to have feloniously written the name of Haberneld, and thus the allegations of the indictment clearly and fully set forth an offense under this statute. All of the note, except that, might lawfully, and without any criminal intent, have been written by the defendant, for it purports to be the note, of Cotts himself payable to Haberneld. His writing Haberfleld's name on the back of it gave it the false and fraudulent appearance of having been negotiated by Haberfield.
It is not necessary to set out in what particular acts the forgery consisted, but all the ingredients of the offense must be set out with certainty and precision; and, at common law, the elements of it are writing, an evil intent, and a false making of such writing. 8 Am. & Eng. Ency. Law 500, 501. To this the statute adds uttering, or attempting to employ as true a forged writing, knowing it to be forged. All these requirements are met by the indictment, and the demurrer was properly overruled.
The alleged misconduct of the jury consists of a number of incidents or transactions, the most of which occurred on the 4th day of July, 1900, after the completion of the argument and retirement of the jury. Prior to that time, there were some acts on the part of the jurors about which complaint is made. W. O. Ewing says that on or about June 30th, he saw two or three of the jurors leave the others and pass into a cigar store or confectionary, owned by S. P. Hubbs, where they remained for a short time out of the custody and hearing of the officer in charge. Hubbs says two of them came into his store and one purchased cigars and the other chewing gum, that no other persons were in there at the time, that no conversation occurred between him and them except what was necessary to effect the sale of the articles mentioned, that the other jurors and the deputy sheriff in charge were outside immediately in front of the store door and not more than three or four feet distant therefrom, that he and the jurors were in plain view of the remainder of the jurors and the deputy and that, on other occasions, he made sales of tobacco to one or more of the jurors under the same circumstances. Charles C. Newman states that on a day, prior to July 4th, and during the trial, he saw two of the jurors about 75 feet from the others on the street, and, in passing, one of them asked him if he was the person who was going to take them to dinner, to which he replied no and directed them to cross the street to where the others were standing. Juror Fox says he was one of the men referred to by Newman and that the jury were passing up the street, he and his comrade being the last two in the column, and that as the jury crossed a certain avenue, he and the juror with whom he was walking, passed Mr. Newman, and said other juror said to him, "Hello, are you going to take us to dinner?" to which Newman replied, "Oh, I guess not." This affiant says he and the other juror were in the rear but not apart from the main body of jurors. He does not remember the name of the other juror. Deputy Sheriff Kidder, who was then in charge of the jury, says that, as they came out of the court house yard, two of the jurors were slightly in advance of the others and started quartering across toward Tomlinson avenue, possibly twenty-five feet, when he called to them that they were getting on the wrong side of the street, and they at once joined the main body. He admits the passing of remarks between one of them and Mr. Newman.
It appears that during the afternoon of July 4th, deputy Kidder had six of the jurors at the Camp Ground until 5 o'clock, while the others were with deputy sheriff Bowman, who had them in the court house yard from about 4 o'clock until 4:30, and, after 7 o'clock, all of the jurors were in the court house yard in charge of four deputies. Mrs. C. C. Bur ley says the jurors in the court house yard on. that afternoon were commingling indiscriminately with, and talking to, persons not jurors, in such manner that the officers could not have heard what was said, and, on one occasion or more, some of them walked to the fence and talked to persons several minutes in the absence of the officers and out of their keeping. Jurors Lowery and Britt say that they and Jurors Buzzard, Koontz, Culley, and Lyons were the only jurors in the court house yard on that occasion. All of these except Koontz state, in their affidavits, that while they were there no person approached any juror, that the six jurors were not separated from each other, that they were not without the hearing or beyond the control and custody of the officer and that none of them walked to the fence and held conversation with any one. Bowunan and Koontz say nothing about what occurred there. On the evening of July 4th, while all the jurors were in the court house yard, except Fox, whom one of the deputies took to the barber shop, it is said by Gr. C. Knight that Koontz and one other juror to him unknown, separated themselves...
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