State v. Fugate
| Decision Date | 17 May 1927 |
| Docket Number | 5852. |
| Citation | 138 S.E. 318,103 W.Va. 653 |
| Parties | STATE v. FUGATE. |
| Court | West Virginia Supreme Court |
Submitted May 10, 1927.
Syllabus by the Court.
An indictment charging, in effect, that the defendant did forge a certain paper writing, purporting to be a check, and which said forged check, set out in full therein, has all the essential elements of a bank check in common usage for the payment of money, with the usual averment that it was made with intent to defraud, is good on demurrer. Specific averments of the corporate existence of the bank on which the check is drawn and the character of the party (whether corporation, partnership, or individual) to be defrauded are not essential to its validity.
In this case the forged instrument described discloses upon its face that is capable of being used to defraud.
It was error to admit the notice of protest of the check in this case, since it stated on its face that the reason for the protest was that the check was forged.
When the question of mental capacity of one charged with crime to commit it is involved, a nonexpert witness may be allowed to express his opinion, where he has personal knowledge of the facts on which his opinion is based.
Point 1 in syllabus in case of State v Evans, 94 W.Va. 47, 117 S.E. 885, relating to mental incapacity to commit crime, applied.
Error to Circuit Court, Cabell County.
Banner Fugate was convicted of forgery, and he brings error. Judgment reversed verdict set aside, and new trial awarded.
Thomas West and T. W. Peyton, both of Huntington, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
Banner Fugate was indicted in the common pleas court of Cabell county charged in one count with forgery of a bank check and in another with uttering and an attempt to employ as true said forged check. He was tried, found guilty, and sentenced to a term of five years in the penitentiary. The case comes here from a judgment of the circuit court of said county affirming the action of the common pleas court.
According to the testimony of the state, on the day of the alleged forgery, the defendant, a youth, came from Ashland, Ky. where he had been working, to Huntington, and about 9 o'clock a. m. visited the office of Azel Meadows, a real estate dealer, and stated that he desired to buy a house. Mr. Wise, one of the salesmen, took him out in a car to see several houses, and after some time defendant decided on a house and lot, and for the cash payment had Mr. Meadows draw up a check on the Bank of Commerce of Williamson, which he, the defendant, signed, "Turner Coal Company, by W. R. Turner," having theretofore represented himself as being W. R. Turner. A receipt was given him, and a deed was to be delivered to "Turner" upon payment of deferred payments. Defendant claims that he had met Mr. Wise on a former visit to Huntington; that on this visit that he met Wise as he got off the car; that Wise gave him something to drink; that he doesn't remember of ever having reached Meadows' office, or having visited any property.
State's witnesses testify that defendant came to the office and inquired concerning a house and lot; that Mr. Wise took him out to view certain properties; that nothing was noticed in defendant's conduct to indicate that he was drunk, doped, or that he was of unsound mind. They state that defendant requested Mr. Meadows and Mr. Wise to call up the Bank of Commerce, of Williamson, and inquire if a check of the Turner Coal Company was good, stating at the time that he wanted to buy some furniture to place in the house just purchased, and wanted the real estate firm to find out from said bank if the check of the Turner Coal Company was good, and that he would have the furniture man call back to them to ascertain if his check was good. The bank stated that the company was good for the amount of the check. Shortly thereafter defendant was placed under arrest. Previous to his apprehension, however, he did call up Mr. Wise, of the real estate firm, and asked if he (Wise) had gotten in touch with the Bank of Commerce of Williamson. The check was put through regular channels, and four days later protested by National Bank of Commerce, Williamson.
The defendant moved to quash the indictment, assigning as error that it failed (1) to allege the corporate existence of the bank upon which the check claimed to have been forged was drawn; and (2) to allege the character of the party to be defrauded-i. e., whether it is a corporation, partnership, or an individual. In many cases, perhaps in most, the forged instrument, when described or set out in haec verba, will disclose on its face that it is capable of being used to defraud. Bonds, notes, checks, and other instruments for the payment of money or creation of other duties or obligations are of that character. State v. Meadows, 89 W.Va. 467, 109 S.E. 486; Goodman v. People, 228 Ill. 154, 81 N.E. 830. Such is the character of the instrument involved here. The indictment is drawn in the recognized and approved form, and has been held sufficient, where the forgery and uttering of a check is concerned. State v. Perry, 101 W.Va. 123, 132 S.E. 368. In that case, the indictment did not contain the allegations claimed here to be essential to its validity.
While various other errors are assigned in the petition counsel's chief reliance in his brief and argument before this court was confined to the following: (1) The introduction...
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State v. McCoy
...about the defendant's mental condition." State v. McWilliams, 177 W.Va. 369, 378, 352 S.E.2d 120, 129 (1986). See also State v. Fugate, 103 W.Va. 653, 138 S.E. 318 (1927) (reversing conviction after finding trial court committed error in excluding lay witness testimony regarding defendant's......
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State v. McCauley
...the consequences of his act in killing deceased. State v. Beckner, 118 W.Va. 430, 436 et seq., 190 S.E. 693. See State v. Fugate, 103 W.Va. 653, 138 S.E. 318; State v. Evans, 94 W.Va. 47, 117 S.E. 885. verdict is supported by the evidence. The facts of this case render applicable the well-k......
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State v. Files
... ... Richmond, ... W.Va., 22 S.E.2d 537, decided October 24, 1942, and ... State v. McGinnis, 116 W.Va. 473, 181 S.E. 820 ... involving, respectively, a void warrant and indictment; and ... State v. McCausland, Pt. 4, syl., 82 W.Va. 525, 96 ... S.E. 938, and State v. Fugate, 103 W.Va. 653, 138 ... S.E. 318, in which this Court held that the error was such ... that it could not be waived. Under these authorities it seems ... to us that we do not reach the merits of the question ... presented by the defendant's Bill of Exceptions No. 5; ... nevertheless, we have ... ...
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State v. Skidmore, 101581.
...defendant was so intoxicated that he could not form the specific intent to commit a felony after breaking and entering); State v. Fugate, 103 W.Va. 653, 138 S.E. 318 (1927) (In a forgery case, “the accused may show that he was incapable from intoxication of forming the intent necessary to c......