State v. Mayle, 10415

• Decision Date: 26 February 1952
• Docket Number: No. 10415,10415
• Parties: STATE, v. MAYLE.
• Court: West Virginia Supreme Court

Page 212

69 S.E.2d 212

136 W.Va. 936

STATE, v. MAYLE.

No. 10415.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 1952.

Decided Feb. 26, 1952.

Syllabus by the Court.

1. When in a criminal case the question of guilt '* * * depends upon the weight of testimony, or inferences and deductions from facts proven, the jury and not the court, are exclusively and uncontrollably the judges.' Part Point 3, syllabus, State v. Cooper, 26 W.Va. 338.

2. Evidence of an escape from jail by a defendant charged with a crime, along with other facts and circumstances, may be considered by the jury as tending to establish guilty knowledge.

I. Raymond Murphy, Philippi, for plaintiff in error.

William C. Marland, Atty. Gen., T. D. Kauffelt, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

Defendant, Eulah Mayle, was indicted by a grand jury in the Circuit Court of Barbour County for forging and uttering a check in the amount of twenty-five dollars. The indictment contained two counts, the first charging the forging of the check and the second charging the uttering thereof. Defendant was found guilty by a jury on the charge contained in the second count and was sentenced to the penitentiary for a term of not less than two nor more than ten years.

The check, dated November 4, 1950, drawn on the First National Bank in Philippi, was purportedly signed by 'H. Poling', as maker and was payable to the order of 'Howard Ross'. On the face thereof it was indicated that the check was given for 'labor', and the name 'Howard Ross' was endorsed on the back thereof. Herman J. Poling, an attorney of Philippi, had an account at the First National Bank in Philippi. Howard Poling also had an account at that bank, but the purported maker of the check was described by defendant as an attorney and was the only person so identified in the evidence.

Contentions of defendant are: (1) The evidence was not sufficient to have warranted the jury finding, beyond a reasonable doubt, that the defendant, at the time of cashing the check, had knowledge that it was a forged instrument; (2) certain evidence relating to an escape from jail by defendant, after his arrest and incarceration upon the charge for which he was indicted, was inadmissible as tending to prove a different crime. To answer these contentions we must necessarily consider all the evidence relating thereto.

On November 4, 1950, a Saturday, at about seven or eight o'clock in the evening, the defendant and William Johnson, Jr., arrived at the front of Shaffer's store in Philippi, either together or about the same time. Johnson there handed the check in question to defendant and requested him to have it cashed, giving as his reason that 'he had to come to the court room over here'. The name 'Howard Ross' and previously been endorsed on the back of the check. Defendant immediately went into the Shaffer store, called for Henry Kelley, an employee of the store, and requested that Kelley cash the check. Kelley testified to the effect that the defendant stated that the check 'was Herman's name, Herman Poling'; that defendant stated 'he had been husking corn for Herman Poling on his farm and it was for labor'; and that 'it was the lawyer, and said 'you know Herman Poling, don't you?''. Kelley also testified that defendant said 'his name was Ross', and that he knew defendant's face but did not know his name. Kelley then cashed the check and defendant, according to his own testimony, waited near the front of the store until Johnson returned from the court house, whereupon defendant delivered to Johnson the twenty-five dollars received by him from Kelley for the check.

The check was presented to the bank upon which it was drawn and payment thereof refused, for the reason that the bank had no account in the name of 'H. Poling'. Herman J. Poling testified to the effect that his bank account was in the name of H. J. Poling; that he did not sign the check; that he authorized no person to sign his name to the check; that he never issued any check to Howard Ross, and that neither defendant nor Howard Ross did any work for him. William Johnson, Jr., who entered a plea of guilty to an indictment charging him with having forged the check, testified to the effect that he wrote the check; that he knew H. Poling; that he had no authority from H. Poling to write the check; that after he wrote the check he gave it to the defendant; that he, Johnson, signed the name 'Howard Ross' on the back of the check; that defendant was not present when he wrote the check, and that he did not tell defendant that the check was forged. Defendant denies that he made any representation to Kelley to the effect that his name was Ross, that he had personally worked for Herman J. Poling, or that H. Poling was an attorney, and denies any intention to obtain money on a forged check.

Upon the trial the State introduced evidence showing the arrest of defendant under a warrant issued by a justice of the peace, in connection with the offense charged in the indictment; that at the preliminary hearing defendant was held to answer an indictment and, in failure of bail, was placed in jail on November 16, 1950; and that on November 30, 1950, he escaped jail. There was an objection and exception to the introduction of the warrant. The admission thereof, however, was not prejudicial error. See State v. Wright, 130 W.Va. 336, 43 S.E.2d 295. No objection was made to the introduction of the other evidence given by different witnesses relating to the escape. Neither was there any motion made by the defendant to limit consideration of such evidence to any specific purpose.

We think the evidence detailed clearly establishes that the check was a forged instrument. Johnson testified that he forged it and plead guilty to the charge of having forged it. Herman J. Poling, upon whom the check was supposedly drawn, testified that he did not sign the check and that he authorized no person to sign his name thereto. Payment thereof was refused by the bank upon which it was drawn, and that bank had no account in the name of H. Poling. Even though the name of the maker is fictitious, the check is nonetheless a forgery. 37 C.J.S., Forgery, § 10.

It is, of course, not sufficient to sustain the conviction of defendant of having uttered the check, to establish that the check was a forged instrument. To be guilty of the crime of uttering he must have had knowledge of the fact that it was a forged instrument, at the time of utterance. State v. Perry, 101 W.Va. 123, 132 S.E. 368; State v. Viquesney, 103 W.Va. 392, 137 S.E. 538; State v. Campbell, 112 W.Va. 355, 164 S.E. 301. As has often been pointed out, however, intention or knowledge must be determined from actions or statements of the defendant, or be inferred from facts shown to be within his knowledge. 'The intent to commit crime may be implied from established facts.' 22 C.J.S., Criminal Law, § 33; State v. Sotak, 100 W.Va. 652, 131 S.E. 706, 46 A.L.R. 1523; State v. Walker, 109 W.Va. 351, 154 S.E. 866; 6 M.J., Criminal Procedure, Section 6.

Upon what testimony which the jury had the right to believe to be true, beyond any reasonable doubt, could the jury have determined that the defendant had knowledge of the forged character of the check at the time he obtained cash therefor? He represented to Kelley that he was 'Howard Ross'. Kelley knew defendant's face but not his name. Was not the jury fully justified in believing, in fact, required to believe, that defendant would have known his own name? Herman J. Poling testified that defendant did no work for him, although defendant represented to Kelley that he had husked corn for Herman Poling and that the check was for that work. Would not the jury have had to believe that if the defendant had performed any labor for Herman J. Poling on his farm, he would have known it? Defendant also falsely represented unto Kelley that the check was given by Herman Poling, an attorney. Within a short time after defendant was placed in jail upon a warrant charging him with having uttered the check, he escaped from jail. It is well established in this jurisdiction that an escape from custody, in cases of like circumstances, may be considered as showing guilty conscience. See cases cited infra.

The jury could also consider the proved circumstances in connection with the cashing of the check. Defendant and Johnson appeared, either together or about the same time, in front of Shaffer's store, wherein the check was cashed. The only attempted explanation as to why defendant, instead of Johnson, undertook to obtain cash for the check, was that Johnson, the forger of the check, had to go to the court room at about seven or eight o'clock on a Saturday evening. Defendant and Johnson were long time acquaintances, and defendant was aware that Kelley, who cashed the check, was only slightly acquainted with him. We have not overlooked certain evidence tending to show that defendant had no knowledge of the forged character of the check. We have only attempted to point out the particular facts testified to which the jury could have believed, beyond reasonable doubt, from which knowledge of the defendant of the forged character of the check could be inferred. We conclude that the jury had before it sufficient facts from which it could...