State v. Murphy

• Decision Date: 20 February 1908
• Citation: 115 N.W. 84,17 N.D. 48
• Parties: STATE v. MURPHY.
• Court: North Dakota Supreme Court

17 N.D. 48

115 N.W. 84

STATE

v.MURPHY.

Supreme Court of North Dakota.

Feb. 20, 1908.

Syllabus by the Court.

On a prosecution for the crime of uttering a forged instrument knowingly, with intent to defraud, proof of similar offenses of forgery is admissible only as bearing on the intent with which the act for which the accused is informed against was done.

Proof of similar offenses in such cases is admissible only as having a bearing on the intent, although the accused admits at the opening of the trial that he signed the name of the person to the instrument, whose name is claimed to have been forged, and knew when he uttered the instrument that he had signed the name of such person to such instrument.

Proof of similar offenses in such cases as bearing on the intent alone is admissible, although the jury would be justified in finding a fraudulent intent without such proof, if they found that the accused was not authorized to sign the name of the person whose name is claimed to have been forged.

Declarations of a party to a contract, as to the terms of the contract, are not admissible as evidence as a part of the res gestæ when made after the contract is completed, and not in the presence of the parties, although made very soon after the parties separated.

Such declarations in this case considered, and held not within the exception to the rule against hearsay evidence that such declarations are admissible as spontaneous expressions made in reference to the contract.

Entering the jury room by the trial judge in the absence of the attorneys, at the request of the jurors, after they have retired to deliberate on their verdict, and having any communication or conversation with the jury in reference to the case, requires the granting of a new trial, without consideration of the question whether such conversation was prejudicial or not.

Appeal from District Court, Cass County; Chas. A. Pollock, Judge.

John S. Murphy was convicted of forgery, and appeals. Reversed.Barnett & Richardson, John F. Callahan, and W. S. Lauder, for appellant. T. F. McCue, Atty. Gen., Geo. A. McGee, State's Atty. of Ward county, and B. D. Townsend, for the State.

MORGAN, C. J.

The defendant was convicted of the crime of forgery in the third degree, and sentenced to imprisonment in the penitentiary for the period of one year and six months. The offense is charged in the information to have consisted in fraudulently and feloniously uttering a certain road overseer's receipt, knowing that the same was a forgery, which said receipt is in the following words and figures: “Road Overseer's Receipt, North Dakota. $231.30. Minot, Sept. 8, 1904. Received of the Great Northern Railway Company, two hundred thirty one 30-100 dollars, in full payment of road taxes levied against its property for year 1904 in Road District No. 1 and 2, township of Ross, county of Ward, North Dakota. Paid in labor upon the public highways of said road district by ------ days work by man and team, and ------ days work by man. Wm. Crowden, Overseer of Highways in Road District No. 1 and 2, Ross Township, Ward County, North Dakota.” In the information it is further alleged that in the year 1904 the Great Northern Railway Company was indebted to Ross township in Ward county, N. D., in the sum of $231.30 for road taxes assessed against its property in said township for that year; that one Wm. Crowden was the road overseer of said township, and was authorized to collect said taxes from said company and to receipt for the same, and that the defendant was authorized by said Great Northern Railway Company to pay said road taxes by doing work upon the highways of said township pursuant to a contract between him and said railway company, under the terms of which the said company agreed to pay said defendant the amount of said taxes upon presentation to said company of the road overseer's receipt for the full amount of said taxes. Upon this appeal there are many assignments of error, as the trial was a protracted one. The appellant, however, has argued only five assignments of error, and we will only dispose of those that have been argued in the brief. Upon the trial the defendant admitted that the name of Wm. Crowden, or Wm. Crowder, as it is sometimes spoken of in the evidence, was not signed to said receipt by said Crowden or Crowder, but that the same was signed thereto by the defendant himself or by his office clerk under his instructions. On the trial the state, under objection, was permitted to show that numerous other receipts of a similar nature to the one set forth in the information had been uttered by the defendant. These receipts were for taxes in different road districts and for different amounts, and some of them purported to have been receipts for road taxes from the Great Northern Railway Company, and some of them purported to be receipts for road taxes from the Soo Railway Company. The introduction of these other receipts is strenuously claimed to have been erroneous and prejudicial; and the question presented on that assignment is one of the main questions argued on the appeal.

The contention of the state is that such evidence was proper as bearing upon the intent with which the defendant uttered the receipt in question. The statute which it is claimed was violated in this case provides that the uttering of the forged instrument or receipt must have been done with intent to defraud. It therefore follows that, if Crowder authorized the defendant to sign his name to said receipt upon receipt of the money, no offense would be committed in uttering it by presenting it to the railway company in order that he might be reimbursed, as provided for by his contract with the railway company. As has been seen, this contract provided that the defendant was to be paid by the company a certain proportion of the amount assessed against it in any township upon presenting and turning over to it a valid receipt from the proper township officer that the road taxes assessed against said railway company had been fully paid by work upon the highways of said township in compliance with the statute permitting such taxes to be liquidated in such manner. The contention of the state is that the Crowder receipt was forged and presented to the railway company, and the money drawn thereon with intent to defraud the company. The defendant's contention is, as stated before, that Crowder authorized him to sign the receipt, and that he drew the money thereon in good faith, and without any fraudulent intent whatever. The trial court admitted evidence that the defendant had drawn money from the Great Northern Railway Company upon presentation of receipts purporting to have been signed by the road overseers of other townships in Ward county. These other receipts were in like terms with the receipt described in the information, excepting as to the date, the name of the township, the amounts, and the names of the persons purporting to have signed the same as road overseers, and some of the receipts were for the taxes assessed against the Soo Railway Company. The contention of the state as to some of the receipts not described in the information is that they were signed by the road overseers, but the amounts were changed and raised after they were signed. From these facts, it is manifest that the question of the defendant's intent in uttering the receipt set forth in the information became an important one at the trial. As the signing of Crowder's name to the receipt and the uttering of it knowing that it had not been signed by Crowder, but by the defendant himself, were admitted by the defendant at the trial, the question whether Crowder had authorized the defendant to sign his name to the receipt and the defendant's intent were the only questions that were in issue before the jury.

By admitting the signing and uttering of the receipt, the defendant did not, of course, admit as a fact that the uttering of the receipt was with a fraudulent intent. Whether this was done fraudulently or in good faith was not and is not ordinarily in such cases capable of proof by direct evidence, nor would it necessarily follow that the defendant uttered the receipt fraudulently, although the jury may have been justified by the evidence in finding that the defendant was not authorized as a matter of fact to sign Crowder's name to the receipt. The legal inference that a person is presumed to intend the natural consequences of his acts, which is sometimes conclusive, is not necessarily of itself of much force in cases of uttering forged paper. For this reason, it is generally held that proof of similar acts of forgeries, or of uttering of forged paper, is admissible as bearing alone on the question of the intent with which the forgery or uttering of forged paper for which the defendant has been informed against was forged or uttered. Such collateral proof must be limited within such a period that it may naturally be seen to throw light as to the intent with which the act under investigation was committed. The question of time during which other acts may be proven seems to be largely within the trial court's discretion. Such collateral proof is never admitted as proof of the commission of the criminal act for which the defendant is on trial. Such evidence of collateral facts is irrelevant and inadmissible as proof of the commission of the crime in question, on the theory that the person on trial is a hardened criminal and has committed other crimes. The law takes cognizance of the fact that criminals may not be guilty of all the crimes with which they may be charged, and excludes proof that the commission of one crime is proof of the commission of another crime. For the single purpose of showing what a person's intent was in uttering a forged paper, proof of a similar act is, however, admissible, although the proof may show the commission of a distinct offense. This is a general principle well fortified by...