State v. Koontz
| Decision Date | 25 February 1888 |
| Citation | 5 S.E. 328,31 W.Va. 127 |
| Parties | STATE v. KOONTZ. |
| Court | West Virginia Supreme Court |
Submitted January 20, 1888.
Syllabus by the Court.
Upon the trial of an indictment for forgery, when it becomes necessary to prove the genuine signature of the party whose name is alleged to have been forged, it is inadmissible to give in evidence to the jury the genuine signature of such party, although written in the presence of the jury, that they may judge by comparing the same in whole or in part with any part of the alleged forged signature, whether the party who made the forged signature tried to imitate any part of the genuine signature of the party whose name is alleged to have been forged. [1]
Error to circuit court, Nicholas county; HENRY BRANNON, Judge.
At the November term, 1886, of the circuit court of Nicholas county Haymond Koontz was indicted for the crime of forgery. The indictment contained two counts, in the first of which he was charged with feloniously forging in said county on the ___ day of ___, 1886, a certain order on G. H. Alderson for the payment of three dollars, purporting to be made and signed by one M. H. Koontz, (setting out the order in h c verba,) with intent to defraud, to the prejudice of the rights of said M. H. Koontz, against the peace, etc. In the second count he was charged with feloniously uttering and attempting to employ as true the said forged order, (setting it out in hæc verba,) with intent to injure and defraud, then and there well knowing the said order to be forged against, etc. The indictment was found upon the information of Wallace Rader and M. H. Koontz, whose names appear at the foot thereof. The defendant moved to quash the indictment, which motion the court overruled. He then pleaded "not guilty," on which issue was joined, on which a trial, was had resulting in the following verdict: "We the jury, find the defendant, Haymond Koontz, guilty as charged in the indictment." The defendant moved to set aside the verdict and for a new trial, which motions were overruled, and the defendant excepted. He also excepted to certain rulings of the court during the trial which were saved by proper bills of exceptions. The court entered judgment on the verdict that the defendant be imprisoned in the penitentiary for two years. To this judgment the defendant has obtained a writ of error.
J. W St. Clair, for plaintiff in error.
Atty Gen. Caldwell, for defendant in error.
WOODS, J., (after stating the facts as above.)
Five grounds of error are assigned: First, in overruling the motion to quash the indictment; second, in permitting the jury to compare the signature of M. H. Koontz, written by him in the presence of the jury, with the signature to the forged instrument for the purpose of ascertaining whether or not the writer thereof attempted to imitate the letter "M," in the genuine signature, alleged to have been forged; third, in admitting certain testimony set forth in the bill of exceptions; fourth and fifth, in refusing to set aside the verdict and to grant him a new trial.
There is nothing in the first ground of error alleged. No error or defect in the indictment is pointed out or referred to, and we have been unable to discover any defect upon the face thereof, and we concur in the opinion announced in his brief by the attorney general that the indictment was not only accurately and skillfully drawn, but it reflects credit upon the representative of the state who prepared it. The motion to quash the indictment was properly overruled. Neither is there anything in the supposed error, admitting the evidence of the jailer, and the witness Rusk, set out in the bill of exceptions, that the accused, while in jail upon this charge, had concealed in a crack in his cell a saw for cutting iron, and that one of the bars of the cell window was half cut off by the use of some saw such as was discovered in the spot where the prisoner said the same was concealed. When asked by the jailer where the saw was the prisoner said he could not get it for him; that he told the jailer he would get it for him that evening if he could, but that he couldn't get it; but, upon the jailer threatening to take him up stairs and chain him to the floor, the prisoner told him he could not get the saw, but he would show him where it was. The prisoner then got up and pointed out a certain crack, and told the jailer. "There is where the saw is." A plank was raised and the saw was found where he said it was. This evidence, although exceedingly weak, was admissible under the well-established rule of evidence that where a party charged with or in custody for a crime which he is alleged to have committed, attempts to escape, or to evade the threatened prosecution, it becomes one of a series of circumstances from which guilt may be inferred, and the court did not err in allowing this evidence to be given to the jury. Whart. Crim. Ev. § 750. Neither did the court err in refusing to set the verdict aside for the reasons set forth in the prisoner's affidavit filed in support of the defendant's motion. The affidavit of the accused clearly admits "that the body of the order alleged to be forged is in his handwriting," and avers that since the trial he has discovered witnesses who, during the trial, saw the said writing, and will testify that the signature thereto is not in the handwriting of the accused, but that the signature is in the handwriting of one James Koontz; but he fails to give any sufficient reason why they were not summoned or examined as witnesses on the trial, or that he made any effort to discover evidence to prove the fact to which he states these newly-discovered witnesses will testify. Every material fact in his affidavit is denied by the affidavits filed on behalf of the state; which, in addition thereto, show that the accused never expressed a desire by himself or counsel to see the forged order, which would have been freely exhibited to him if he had done so. Neither did the court err in refusing to continue the cause on account of the absence of Mr. St. Clair, whom he claims to have retained as counsel. The affidavit on the part of the state shows that the only counsel who ever appeared for him was present in court on the trial, and had declined to serve him because he failed to carry out certain preliminary arrangements agreed upon. The court, therefore, did not err in overruling the defendant's motion to continue the cause.
The defendants second ground of error remains to be considered. At the trial, as appears by the bill of exceptions, an "expert" witness having stated among other things that whoever wrote the name of M. H. Koontz to the alleged forged order had, in making the letter "M," tried to imitate that letter in said Koontz' genuine signature," and, the prosecuting attorney stating that he would claim before the jury that such was the fact, the prosecution required the prosecuting witness, M. H. Koontz, whose name is charged to have been forged, to write his name, "M. H. Koontz," upon a piece of paper, and then offered the said piece of paper with said name so written upon it, to the jury for the purpose, and only for the purpose, of ascertaining from a comparison of the "M" in the signature charged to have been forged, and the "M" in the name upon said piece of paper; that the party writing the signature to the questionable paper attempted to imitate the handwriting of the witness as to the letter "M," "the judge saying that the paper goes to the jury for the sole purpose of ascertaining by a comparison of the two letter 'M's,' the one in the instrument, and the one in the name of M. H. Koontz written on the slip of paper, whether the party who signed said instrument attempted to imitate the signature of the witness as to the letter 'M,' and not for the purpose of comparing the genuine signature or any part of it with the one charged to be forged upon the question of its genuineness." We are thus brought face to face with the question whether, when the genuineness of the signature to a paper writing is denied, it is competent for either party to the controversy to give in evidence to the jury other signatures of the same party, which are admitted to be genuine, in order that the jury, by comparing the one with the other, may determine whether the disputed signature is genuine or not. The well-established rules of evidence recognize two modes of acquiring the knowledge of the handwriting of another, either of which is universally admitted to be sufficient to enable a witness to testify to its genuineness. The first is from having seen him write. The second mode is having seen letters, bills, or other documents purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them, or acted upon them as his, the party having known or acquiesced in such acts, founded upon their supposed genuineness; or by such adoption of them into the ordinary business of life as induces a reasonable presumption of their being his own writings; evidence of the identity of the party being of course added aliunde, if the witness is not personally acquainted with him. 1 Greenl. Ev. § 577; 2 Phil. Ev. 247-251. A third mode of obtaining this information has been proposed, which may be resolved into the question "whether documents irrelevant to the issues on the record may be received in evidence at the trial to enable the jury to institute a comparison of hands, or to enable a witness to do so." The modern English decisions are clearly opposed to admitting such evidence upon an examination in chief for the mere purpose of enabling the jury to judge of the handwriting. For this two good reasons have been assigned-- First, fraud in the...
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