State v. Lowry

• Citation: 24 S.E. 561,42 W.Va. 205
• Parties: STATE v. LOWRY.
• Decision Date: 11 April 1896
• Court: Supreme Court of West Virginia

24 S.E. 561

42 W.Va. 205

STATE v. LOWRY.

Supreme Court of Appeals of West Virginia.

April 11, 1896

Submitted January 31, 1896

Syllabus by the Court.

1. On the trial of a person accused of forgery the alleged forged paper must be produced, or its nonproduction satisfactorily accounted for, by showing it to be lost, destroyed, or in the hands of the accused or his friends; and, in the latter case notice to produce it must be given to the accused or his counsel before evidence of its existence, character, and contents is admissible.

2. The statements of the prosecuting attorney are not evidence against the accused, unless he is sworn, examined, and submits himself to cross-examination as any other witness.

3. In criminal prosecutions, while the burden of proving an alibi is on the accused, on account of its affirmative nature, yet this does not dispense with the necessity of the state's proving the actual presence of the accused at the place where, at the time when, the crime was committed, when personal presence is essential to the commission of the crime; and if, from the evidence, the jury have a reasonable doubt of the presence of the accused at the place where, at the time when, the offense was committed, they should acquit him.

4. In criminal cases it is improper to permit the jury to take depositions in behalf of the accused to its room, on retiring; but the court should, on its request, have any portion of such depositions re-read to it.

5. It is error to allow one accused of forgery, on trial therefor to be interrogated as to other similar papers, unless it is first shown that such papers were forged, and the accused had culpable connection therewith.

Error to circuit court, Ohio county.

R. L Lowry was convicted of forgery, and brings error. Reversed.

M. F Dryden, for plaintiff in error.

T. S. Riley, Atty. Gen., for the State.

DENT J.

R. L. Lowry was on the 30th day of March, 1895, in the criminal court of Ohio county, convicted of forgery, and sentenced to the penitentiary for five years. The circuit court of said county having refused him any relief, he applied for and obtained a writ of error to this court. Numerous errors are assigned, but they are too cumbersome to be given at length. The first five assignments relate to the refusal of the court to give five several instructions. The sixth is to the arbitrary closing of the case by the court before the prisoner had concluded his evidence. The seventh is to the refusal of the court to allow certain depositions to be taken to the jury room by the jury. The ninth is to the refusal of the court to set aside the verdict and grant a new trial. The tenth is to the failure of the prosecution to produce the alleged forged instrument, and to the proving the contents thereof without laying a proper foundation for the admission of such proof. The eleventh is to the variance between the instrument as proved and as alleged in the indictments. The twelfth is to the introduction of improper testimony highly prejudicial to the prisoner. Without considering these various errors in rotation, it is sufficient that several of them are well founded, and none of them but what are calculated to raise a question of doubt as to whether the prisoner has had that fair and impartial trial that the law accords to every one accused of a heinous crime.

The prisoner was indicted for forging, and uttering, knowing the same to be forged, the following paper, to wit: "No. 67. Wheeling, W. Va., July 12, 1893. The National Bank of West Virginia, at Wheeling, pay to the order of R. L. Lowry & Bro. forty-two 65/100 dollars ($42 65/100). Goodhue & Thomas." And indorsed on the back thereof: "R. L. Lowry Bro., for R. L. Lowry. Received on same six dollars." The state proceeded to prove the contents of this paper without producing it, or accounting for its nonproduction. To this the prisoner objected. The state then introduced one M. D. Post, whose testimony is as follows, to wit: "Question. Mr. Post, what is that you have in your hand? Answer. This is an indictment. Question. Well; an indictment in this case? Answer. Yes, sir; against R. L. Lowry. Question. You see in the first count, and, as well, in the second, the description of the paper alleged to have been forged? Answer. Yes, sir. Question. Have you seen the paper that is described there? Answer. I have. Question. Have you compared it carefully with the description in the indictments,--as to face as well as indorsements? Answer. Yes, sir. Question. Say whether or not both is a true and accurate description. Answer. They are both accurate descriptions, and I compared them myself carefully at the time this indictment was made. I wrote the indictment myself, and compared the original paper with the description set up in this indictment in the first count and in the second count, and they are both accurate descriptions. Question. Can you say where the paper is now? Answer. No, sir." It does not appear who the witness is; in what capacity he acted in preparing the indictment; how he came to have the paper in his possession; what he did with it; whether he was the legal custodian of it, and, if so, whether he made diligent search for it where it should have been found; and that it was lost and could not be produced. For, if it could be produced, it must be, as it is the very gist of the prosecution, and it was improper to give evidence of its contents until its absence was satisfactorily accounted for, as the text writers declare. "The forged instrument must be produced, or its nonproduction justified from necessity, as by showing that it is lost or destroyed." 2 Bish. Cr. Proc. § 433. This witness simply testifies that he cannot say where the paper now is, although he had it on one occasion. Several other witnesses might have testified the same thing, yet such testimony is not sufficient to show that it was lost or destroyed, or might not be suppressed by some one connected with the prosecution, or that the failure to produce it was not the fault of the prosecutor. The instrument itself is the best evidence of itself and its contents, and therefore its production can never be dispensed with, unless unavoidable. Pendleton v. Com., 4 Leigh, 694; Manaway v. State, 44 Ala. 375; Com. v. Snell, 3 Mass. 82; 8 Am. & Eng. Enc. Law, 534, 535, note.

It is true, after the state had introduced all its evidence touching the character, contents, and purport of the paper in question, the witness Post is recalled, and testifies that he received the check from Squire Gillespy, drew the indictment from the warrant and check, and then either put the check in the indictment and filed them away, or gave it to the prosecuting attorney. The prosecuting attorney then makes the following statement, which appears to have been addressed to the court, and is copied into the record: "By Mr Howard: I want to testify: That the check of which Mr. Post has spoken in his testimony I received with the indictment, and exhibited both to the grand jury, in the grand jury room, on the day they met, and took the check from the grand jury room to put in a pigeon hole in which papers of that kind are kept. That it remained there until some few days afterwards, when Mr. Caldwell came into court and said, 'If your honor please, we crave over of this paper in this case.' I immediately sent and got the paper, and just handed it to either Mr. Dryden or Mr. Caldwell, and since that time I have not seen the check. That I have carefully, thoroughly, and exhaustively examined every place in my office that it is the least bit probable it could be. I have gone to the extent of going through receipt files and letter files, and every place, without reference to places in which it is usually kept; have opened envelopes of other cases, Mr. Handlan and I searching together, and devoted at least three hours to careful and systematic search for it. And I can say, after a thorough search, that it is not there, and that I have not seen it since." It is not shown that he was sworn, or that he was introduced as a witness, or that the prisoner admitted such statement to be used as evidence against him without cross-examination, or that he was cross-examined. The unsworn statements of the prosecuting attorney are not evidence against a prisoner. It is true, he says. "I want to testify." It does not appear that he did so, but that he merely made a statement of what he was willing to do, if required. He should have been sworn, as any other witness, and subjected himself to cross-examination, unless the prisoner waived the right to do so. The preliminary evidence as to the loss of a paper, before proving its contents, is addressed to the court, and not to the jury, and yet it is proper evidence for the consideration of the latter when the question is as to whether such a paper as that described was ever in existence. If it is not produced, and it is not shown to have been destroyed or lost, and thus rendered incapable of production, then the just inference is that such paper never had an existence. So that the evidence of the existence and loss is proper for the consideration of the jury. The clerk of the court, and not the prosecuting attorney, is the custodian of indictments; and, if the check was...