State v. Moore

• Decision Date: 12 March 1897
• Citation: 69 N.H. 102,40 A. 702
• Parties: STATE v. MOORE.
• Court: New Hampshire Supreme Court

40 A. 702

69 N.H. 102

STATE

v. MOORE.

Supreme Court of New Hampshire. Hillsboro.

March 12, 1897.

Exceptions from Hillsboro county.

Joseph C. Moore was convicted for making a false record of a certificate of stock of a corporation with intent to defraud, and he excepts. Exceptions overruled.

Indictment for fraudulently making a false record of a certain certificate numbered 108 of stock of the Union Publishing Company, which he, as treasurer, issued to one J. C. Moore, of Laconia, N. H, on the 5th day of November, 1894, with an intent to defraud. The respondent seasonably filed a motion for a change of venue, alleging that he could not have a fair and impartial trial in this county. The court reported as follows: "Upon considering all the evidence, the court does not find that there is probable ground to believe that the respondent cannot have a fair and impartial trial in this county, and the motion is denied. The evidence tended to show that there was prejudice against the respondent in the city of Manchester, although reputable witnesses testified that he could have a fair trial in Manchester from Jurors drawn in part from its citizens. The court ordered that no jurors be drawn from Manchester, and certain towns adjacent thereto, and was of the opinion that the public good would be promoted by having trial at Nashua, and the court adjourned thereto." To the order that the trial be had at Nashua, the respondent excepted. Before the jury was drawn for this case, and while the entire array was present in court at Manchester, the respondent made and filed the following motion: "And the said respondent comes and moves that the entire array of jurors now in attendance on said court from whom it is proposed to select a panel to try the above-entitled action be discharged and dismissed on the ground and for the reason that said jurors have been irregularly and illegally selected and summoned to attend at this time; that said jurors have been selected from only twenty of the towns of said county and from a small section of the county, and not from the body of the county at large; and that no jurors are returned from the nine wards in the city of Manchester, and the nine wards in the city of Nashua, and from the towns of Bedford, New Boston, Merrimack, Sharon, Windsor, Litchfield, Hudson, and Goffstown, so that each town and ward does not furnish its proportion of jurors, as required by the statute. The said respondent objects and protests for the reasons aforesaid to the entire array of jurors now in attendance from which it is proposed to draw a panel to try said case, and also for the reason that all of said jurors are prejudiced against the said respondent, and an impartial panel cannot be selected therefrom. He therefore moves that the case may be continued, and for a change of venue." After issuing the venires as above described, and before the return day thereof, the court ordered the trial to be had at Nashua on May 28th, against the objection of the respondent, and subject to his exception. On that date, both at Manchester and at Nashua, after a jury had been impaneled, he renewed his objection to being ordered to a trial at Nashua. At this latter time and place he assigned as a reason for his protest that the provisions of the statute with regard to adjournments had not been complied with, and that the court had no jurisdiction at Nashua; citing Pub. St. c. 207, §§ 3-5; Laws 1895, c. 56. No order for adjournments had been published as therein provided, but the court ordered the trial to proceed, and the respondent excepted.

The state was allowed in its opening, subject to the defendant's exception, to refer to an overissue of stock of said corporation by the defendant as treasurer, and also to introduce evidence as to said overissue, for the purpose of showing that the defendant made the false record set forth in the indictment fraudulently. The articles of association of the Onion Publishing Company were dated July 27, 1880, were recorded with the secretary of state November 5, 1880, and with the city clerk of the city of Manchester, November 8, 1880. Prior to the recording of the said articles of association, the company adopted by-laws. Subject to the defendant's exception, the state was allowed to put in evidence said by-laws, and to show by a subsequent witness that they had been recognized by amending them on several occasions after they had been recorded as aforesaid. The by-laws were put in evidence by John Riedell, the first clerk of the association. Subject to the defendant's exception, the state was allowed to show by said Riedell that it was his recollection that the bylaws were adopted after the articles of agreement had been signed. Subject to the defendant's exception, the state was allowed to show by the record of said Union Publishing Company that Joseph W. Fellows was elected clerk thereof December 5, 1882, at a meeting adjourned from the annual meeting held on the 21st day of November, 1882, and that he held this office down to the annual meeting of 1896. As to the admission of evidence as to said elections, the defendant's counsel said: "To this record we object for two reasons: It appears affirmatively from an examination of the book itself that no notice was given to the stockholders of this meeting, and it is apparently a record of a meeting held without any notice; second, because, so far as it appears, this meeting was held without any time or place having been fixed by the board of directors, as provided for in the only suggestion of by-laws that has been presented." He further stated that, "We do not assent in this case to the use of any alleged de facto organization." Subject to the defendant's exceptions, the state was allowed to show that at the annual meeting in 1885, held on the third Tuesday of November of said year, certain amendments to the by-laws were passed, and that the defendant was elected treasurer of the corporation. Subject to the defendant's exception, the state was allowed to show that at a meeting held on the 9th day of February, 1894, adjourned from the 6th day of February, 1894, the by-laws were amended. Subject to the defendant's exception, the state was allowed to show from the records that the capital stock of said corporation was increased and limited to $150,000, represented by 1,500 shares.

Among other things, the court instructed the jury as follows: "Now, Mr. Foreman and gentlemen, if the state is to maintain its charge,—if the respondent is to be adjudged guilty of this crime for which he is indicted, —it must satisfy you: First. Of the organization and existence of this corporation. Second. It must satisfy you that the respondent was the treasurer of this corporation at the time said record was made. Third. It must appear that as such treasurer it was his duty to keep a record of the stock issued by the corporation. Fourth. That he fraudulently made a false record of said certificate No. 108, with intent to defraud. As bearing upon the organization and existence of this corporation, there has been Introduced in evidence what is claimed to be the original agreement of organization of the Union Publishing Company; also what is claimed to be portions of the record from the secretary of state's office and from the city clerk's office in Manchester, wherein these articles of agreement were recorded, and what is claimed to be portions of the records of this company. There has also been presented to you what is claimed to be a certificate of the secretary of state of an act of the legislature in regard to this company. The effect of this agreement and of these records and of these certified copies—if you find them to be the papers that they are claimed to be—is that this company was organized and is in existence, and was in existence at that time when the offense charged is alleged to have been committed, and that the respondent, Joseph O. Moore, was elected treasurer in 1890, and at the annual meeting, February 9,...