State v. Jesse Conley

• Decision Date: 02 January 1935
• Citation: 176 A. 300,107 Vt. 72
• Parties: STATE v. JESSE CONLEY
• Court: Vermont Supreme Court

176 A. 300

107 Vt. 72

STATE v. JESSE CONLEY

Supreme Court of Vermont

January 2, 1935

November Term, 1934.

Criminal Law---False Pretences---Forgery---No Necessity of Showing Corporate Existence of Banks on Which Instruments Drawn Where Third Persons Were Persons Alleged To Have Been Defrauded---Standing of Exception To Question Not Taken Until Answer Has Been Given---Prompt Striking Out of Immaterial and Incompetent Testimony and Directing Jury To Disregard It as Curing Error in Admission under Circumstances of Case---Offering Incompetent, Immaterial, and Scandalous Evidence To Prejudice Jury as Error---Insufficient Exception To Point Out Error in Instruction---Claimed Alibi, Found To Be False or Fictitious, as Evidence of Respondent's Guilt.

1. In prosecution for obtaining money and other property from several companies by false tokens, consisting of checks drawn on banks, well knowing that drawer was not then entitled to draw thereon for amount of respective checks, with intent to defraud such companies, and for uttering and publishing forged instruments, consisting of such checks, for same fraudulent purpose, held that it was unnecessary to show corporate existence of banks mentioned in information on which checks were drawn such institutions not being parties alleged to have been defrauded, and matter in issue being guilt of respondent in attempting to perpetuate this species of fraud rather than corporate existence of drawees.

2. Where no objection was made or exception taken until question was answered by responsive answer, exception held too late to be availing, it not appearing that objection could not have been seasonably interposed.

3. Where court, after admission of evidence, treated objection then made that evidence was incompetent and immaterial, as timely, and immediately struck out such evidence and directed jury to pay no attention to it, and thereafter no exception was allowed or claimed, held that court had right to understand that incident had been satisfactorily dealt with and did all that was necessary under circumstances to rectify any mistake made, so that prejudicial error does not appear.

4. When incompetent, immaterial, and scandalous evidence is offered for purpose of prejudicing jury, it is error to permit it to stand unrebuked.

5. In prosecution for obtaining money and other property by false tokens, and for uttering and publishing forged instruments for same fraudulent purpose, where only defense was alibi exception to instruction, that if alibi fails it was direct evidence of guilt of respondent, on ground that fact respondent is unable to sustain his alibi by proper witnesses cannot be taken against him, held not to raise only fault of charge, if any, as applied to evidence in case, in use of language "direct" evidence.

6. If it is found that claimed alibi is false or fictitious attempt to establish it is evidence of guilt.

INFORMATION for obtaining money and other property from several companies by false tokens, consisting of checks drawn on banks, well knowing that drawer was not then entitled to draw thereon for amount of respective checks, and for uttering and publishing forged instruments, consisting of such checks, for same fraudulent purpose. Plea, not guilty. Trial by jury at the April Term, 1934, Franklin County, Sherman, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted. The opinion states the case. Exceptions overruled.

Exceptions overruled.

P. C. Warner for the respondent.

John H. Webster, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SLACK

The information contains four counts. The first charges, in substance, that at Enosburg, in the county of Franklin, on November 24, 1933, the respondent, with intent to defraud, did designedly, by the use of a false token namely, an instrument in writing commonly called a check, drawn on the Island Pond National Bank, to the order of Roy Bailey, and purporting to be signed by B. G. Bailey, obtain money and other property from the St. Albans Grain Company, well knowing that said drawer was not then entitled to draw upon the drawee for the amount of said check, etc. The second count is of like tenor and effect, except the offense is alleged to have been committed at Swanton in the county of Franklin, the check therein described is drawn upon the Welden National Bank of St. Albans, Vermont, to the order of George Lawrence, purports to be signed by B. G. Bailey, and the money and property received thereon was obtained from the Hall Hardware Company. The third count is for uttering and publishing a forged instrument (the check first above described), knowing the same to be forged, with intent to injure and defraud the St. Albans Grain Company. The fourth count is for uttering and publishing a forged instrument (the check described in the second count), knowing the same to be forged, with intent to injure and defraud the Hall Hardware Company.

The only defense was an alibi. There was a verdict and judgment of guilty. Sentence was imposed, and the respondent is now in execution thereof.

The first question raised is that the corporate existence of the banking institutions mentioned in the information was not shown. This was not necessary since they are not the parties alleged to have been defrauded. Watson v State, 82 Tex. Crim. 462, 199 S.W. 1098; Davis v. State, 70 Tex. Crim. 253, 156 S.W. 1171. See, too, Lucas v. State, 39 Tex. Crim. 48, 44 S.W. 825; State v. McKiernan, 17 Nev. 224, 30 P. 831; State v. Van Hart, 17 N.J.L. 327. There is no logical reason for holding otherwise, since the existence of the corporation is not in issue, but rather the guilt of the respondent in attempting to perpetrate this species of fraud. Moreover, it appeared from the testimony of the cashier of one of the banks and a pay teller of the other, received without objection, that their respective institutions were banking corporations under the laws of the United States, and although in the hands of conservators at the times material, were carrying trust deposits and...