State v. Lowe

• Decision Date: 01 December 1930
• Docket Number: 5580
• Parties: STATE, Respondent, v. VIOLA LOWE, Appellant
• Court: Idaho Supreme Court

294 P. 339

50 Idaho 96

STATE, Respondent, v. VIOLA LOWE, Appellant

No. 5580

Supreme Court of Idaho

December 1, 1930

CRIMINAL LAW-FORGERY-EVIDENCE OF OTHER OFFENSES-STATEMENT OF PROSECUTING ATTORNEY - MOTIVE-PROOF-EVIDENCE-EXPERT WITNESS-QUALIFICATION OF-EXAMINATION OF.

1. Prosecuting attorney's general reference in opening statement to other forged instruments, though somewhat broader than proof, was not error, in absence of bad faith.

2. Motive may be shown by proof of other acts showing general scheme, even though similar transactions proved may constitute independent crimes.

3. Proof of defendant's participation in other forgeries of orders similar to that involved in prosecution was admissible as showing motive.

4. Refusal in prosecution for forgery to admit large number of orders claimed to have been forged by different scheme by others held not erroneous.

5. Proof in prosecution for forgery held sufficient to establish corpus delicti.

6. Examination testing knowledge or experience of expert witness to qualify him is for court.

7. Result of cases in which expert witness had theretofore testified was not material in determining his qualifications.

8. Defendant in prosecution for forgery using same exemplars as state in connection with testimony of handwriting experts could not complain as to genuineness thereof.

9. Permitting use of blackboard in explaining testimony of expert witness was not erroneous.

10. Evidence respecting passing and cashing of order for school warrant held sufficient to sustain conviction for forgery.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Hugh A. Baker, Judge.

Appeal from a judgment on conviction for forgery. Affirmed.

Judgment affirmed. Petition for rehearing denied.

J. W Porter and J. W. Taylor, for Appellant.

Before a legal conviction can be had, the burden is upon the state throughout the trial to establish not only the corpus delicti but also the accused person's guilt of every element of the crime charged, by legal evidence and beyond a reasonable doubt. (Stockslager v. United States, 116 F. 590, 54 C. C. A. 46; 26 C. J. 897, 898; sec. 470, Kerr's Pen Code (before 1905 amendment); People v. Lundin, 117 Cal. 124, 48 P. 1024; People v. Whiteman, 114 Cal. 338, 46 P. 99; State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647; Rickman v. State, 135 Ark. 298, 205 S.W. 711; 26 C. J. 899; People v. Bendit, 111 Cal. 274, 52 Am. St. 186, 43 P. 901, 31 L. R. A. 831; Bane v. Gwinn, 7 Idaho 439, 63 P. 634; C. S., secs. 7964, 7971, 8408; State v. Brassfield, 33 Idaho 660, 197 P. 559; In re Mara, 137 N.Y.S. 151.)

It is error for a prosecuting attorney in his opening statement to attack the character or reputation of a defendant by stating that a defendant has committed other crimes than the one of which she is accused. (State v. Clark, 160 Iowa 138, 140 N.W. 821 (823); Jones v. State, 88 Ark. 579, 115 S.W. 166; Marshall v. State, 71 Ark. 415, 75 S.W. 584; State v. Stubblefield, 157 Mo. 360, 58 S.W. 337; People v. Smith, 162 N.Y. 520, 56 N.E. 1001; People v. Milks, 55 A.D. 372, 66 N.Y.S. 889.)

W. D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.

In a prosecution for forgery, evidence of other forgeries of similar instruments is admissible to show intent. (C. S., sec. 7971; Bane v. Gwinn, 7 Idaho 439, 63 P. 634.)

The qualification of a witness as an expert in handwriting is a question for the trial judge. (3 Nichols, Applied Evidence, p. 2423, and cases cited.)

An expert may explain his testimony to the jury by illustrations on a blackboard. (3 Nichols, Applied Evidence, p. 2424; State v. Ryno, 68 Kan. 348, 74 P. 1114, 64 L. R. A. 303.)

It is proper for a prosecuting attorney in his opening statement to the jury to state what he expects to prove, provided the same is directly connected with the crime for which the defendant is tried. (State v. Boone, 65 Wash. 331, 118 P. 46; Jeffries v. State, 82 Tex. Crim. 42, 198 S.W. 778; State v. Edelstein, 146 Wash. 221, 262 P. 622; People v. Bibby, 91 Cal. 470, 27 P. 781.)

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

This is a prosecution for forgery. The defendant had for a number of years been employed in the office of the county superintendent of schools of Twin Falls county. Her duties were to keep the records and books and perform any of the duties pertaining to the office of county superintendent. Records of the orders drawn by the various school districts were kept by her. When an expenditure of funds was to be made by a common school district, an order for a warrant was issued by the district, signed by the chairman and clerk of the board. This order had to be countersigned by the county superintendent and presented to the auditor who then drew a warrant against that particular fund in payment of the claim, which warrant could be cashed at a bank in the same manner as a check. The custom had prevailed in Twin Falls county of accepting these orders for warrants by the banks upon being indorsed by the payee, and then one or more orders would be presented to the auditor who would then draw a warrant for the total and deliver the same to the bank.

Defendant is charged with forgery in making and passing, with fraudulent intent, a false and forged order for a school warrant, by which School District No. 39, Twin Falls county, was defrauded and damaged. The instrument which it is charged was fraudulently made, forged and passed by the defendant, follows:

"No. :

$ :

Leave this

space blank

ORDER FOR SCHOOL WARRANT No. 74.

Twin Falls County, Idaho, Aug. 29, 1929.

The Auditor will draw a Warrant on the School Fund (General, Special or Library) of District No. 39 in favor of M. P. Smith $ 480.00/100 for the sum of Four hundred eighty & 00/100 dollars.

P. C. MILLS, MRS. J. M. PIERCE,

Chairman. Clerk.

Countersigned by ROSE J. WILSON,

County Superintendent."

On the back of the instrument is indorsed the name, "M. P. Smith," which it is charged defendant forged, and also is the indorsement, "Rose J. Wilson VL," which it is charged was indorsed thereon by the defendant. The defendant was found guilty and the case is here for review on several specifications of error.

Appellant claims there was error in permitting the prosecuting attorney in his opening statement to refer generally to other forged orders for warrants on other school districts of the county, claimed to have been prepared by the defendant, in which the signatures of the officers of such districts were simulated. The prosecuting attorney offered evidence of four other similar orders upon which the signatures of the school district officials were forged, wherein it appeared such forged signatures simulated the genuine signatures of the officials, and proof was offered to show such orders and such simulated signatures were made by the defendant. And it was further shown that at least two of these orders were cashed by the defendant in a manner very similar to the manner in which it is claimed the order in question was cashed, except that it was at another bank. The prosecuting attorney's statement was somewhat broader than his proof, but in the absence of bad faith this was not error. (People v. Arnold, 199 Cal. 471, 250 P. 168; Mayfield v. State, 17 Okla. Crim. 503, 190 P. 276; State v. Boone, 65 Wash. 331, 118 P. 46.)

It is claimed there was error in receiving proof of defendant's participation in these other forgeries of similar orders. We think motive may be shown by proof of other acts by a defendant, showing a general scheme in the carrying out of which the crime charged is a distinct crime, even though other similar transactions proved, in showing such general scheme, may constitute independent crimes of a similar nature. (State v. Montgomery, 48 Idaho 760, 285 P. 467; State v. O'Neil, 24 Idaho 582, 135 P. 60; People v. Arnold, supra; People v. King, 23 Cal.App. 259, 137 P. 1076; People v. Bibby, 91 Cal. 470, 27 P. 781.)

The defendant claims error in the rejection of a large number of orders claimed by the witness Davis, who had been engaged by the school districts to make an audit, to be spurious, and in which the handwriting of the various district officials had been simulated.

When these exhibits were offered and objection made, the jury was excused in order that the court might hear the offer of proof. The offer was as follows:

"Mr Porter: Our purpose is that the state has offered a number of spurious warrants to prove plan and design, and having made partial proof of plan, we are entitled, under our theory of the matter, to show the entire plan, which, of course, would include these additional items. It has been testified here by witnesses for the state that the bank paid these warrants to the last indorser--I should have said the bank paid these orders to the last indorser, and from that the witness testified that the one in question was paid to Viola Lowe. We ask to show by these that the bank, if they paid to the last indorser, did not pay the orders for warrants to Viola Lowe, her name not appearing by imitation or otherwise on these orders. In addition to that we ask to show that some of these orders on which her name does not appear were cashed by banks outside the city of Twin Falls where she is a comparative stranger. That is our purpose for which we ask to have them introduced. It is our purpose to show that there was a person engaged in the forgery of school warrants and that on the back of some of these orders erasures were made after they were cashed at the bank. It is our position that the instruments were cashed and nothing returned to the districts on which they were...