State v. Murphy
| Decision Date | 20 February 1908 |
| Citation | 115 N.W. 84,17 N.D. 48 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
John S Murphy was convicted of forgery, and appeals.
Reversed.
Judgment reversed, a new trial granted, and cause remanded.
Barnett & Richardson, John F. Callahan and W. S. Lauder, for appellant.
Proof of one crime has no tendency to prove another unless they are so connected or related, that proof of one has a direct bearing upon another. Coleman v. People, 55 N.Y. 81; People v. Chea, 41 N.E. 505; Shaffner v Com., 72 Penn. St. 60; Com. v. Jackson, 132 Mass. 16; People v. Molineaux, 61 N.E. 286; 1 Bishop's New Crim. Proc., section 1120.
If the intent is fairly deduced from the act itself, proof of other offenses is not admissible. People v. Molineaux, supra; People v. Lonsdale, 81 N.W. 277; People v Dolan, 78 N.E. 569; State v. Vance, 94 N.W. 204; Bink v. State, 89 S.W. 1075.
Before proof of other offenses is admissible there must be dispute as to the identity of the appellant, the system, or as to his intent. Davenport v. State, 89 S.W. 1077; Bink v. State, supra; Coleman v. People, supra; People v. Corwin, 56 N.Y. 365; People v. Peck, 103 N.W. 178.
Declarations admissible as res gestae must be uttered contemporaneously with, and grow out of the act, and so connected with it, as to form one transaction. Wharton's Criminal Evidence, section 262 (8th Ed.); Underhill on Criminal Evidence, section 93; 1 Greenleaf on Evidence (16th Ed.) 192; 1 Rice on Evidence, section 212; Gillett on Indirect and Collateral Evidence, 290; 2 Am. & Eng. Enc. Law, 523; Lund v. Inhabitants of Tynsborough, 9 Cush. 36; People v. Lane, 34 P. 856; People v. Tucker, 38 P. 195; Cole v. State, 53 S.E. 958; Warwick v. State, 53 S.E. 1027; Johnson v. State, 108 N.W. 55; State v. Mickler, 64 A. 148; Stevison v. State, 89 S.W. 1072; Tillson v. Terwilliger, 56 N.Y. 273; 2 Jones on Evidence, section 347.
The visit of a trial judge to the jury room after the case is submitted is fatal to the verdict. State v. Wroth, 47 P. 106; 1 Spelling on New Trial and Appellate Practice, 75; Danes v. Pierson, 33 N.E. 976.
Judge can only communicate with jurors in open court, in presence of counsel upon both sides. Read v. Cambridge, 124 Mass. 567; Crabtree v. Hagenbaugh, 23 Ill. 289; Fisher v. People, 23 Ill. 218; Bank v. Mix, 51 N.Y. 558; Snyder v. Wilson, 32 N.W. 642; O'Brien v. Insurance Co., 38 N.Y.S. 483; Gibbons v. Van Alstyne, 29 N.Y.S. 463; Plunket v. Appleton, 51 How. Pr. 469; State v. Alexander, 66 Mass. 148; Fish v. Smith, 12 Ind. 563; Valentine v. Kelley, 54 Hun. 79; Havenor v. State, 104 N.W. 116; Hearst v. Webster Mfg. Co., 107 N.W. 666; Sommer v. Huber, 183 Pa. 162; Hopkins v. Bishop, N.W. 902; Quinn v. State, 30 N.E. 300; High v. Chick, 81 Hun. 100; Blashfield Inst. to Juries, Vol. 1, section 179; Moody v. Pomeroy, 4 Denio 115; Seely v. Bisgrove, 83 Hun. 293.
T. F. McCue, Attorney General, R. N. Stevens, Assistant Attorney General, Geo. A. McGee, State's Attorney of Ward county, and B. D. Townsend, for respondent.
In prosecution for forgery guilty knowledge must be shown. Montgomery v. State, 12 Tex.App. 325; Clark v. Commonwealth, Ky. L. Rep. 1029, 63 S.W. 740; Krum v. State, 148 Ind. 401; Higgins v. States, 157 Ind. 573; 3 Greenleaf on Evidence, page 111.
If the act of the trial judge in entering the jury room, and communicating with the juror was without prejudice, it was not error. Kerr v. Hammer, 15 N.Y.S. 605; Helmbrecht v. Helmbrecht, 31 Minn. 505; Hart v. Lindley, 50 Mich. 20; Oswold v. Railway Co., 29 Minn. 5; Priest v. State, 34 S.W. 611; People v. Kelley, 94 N.Y. 526; Allen v. Aldrick, 29 N.H. 63; Goldsmith v. Solomens, 2 Strob. 296; People v. Carnal, 1 Park. Cr. Rep. 256.
Where the evidence shows defendant's guilt, the showing of error must indicate that if a new trial were granted, a like conviction could not be had. Leyson v. Davis, 34 L. R. A. 453; People v. Fernandez, 35 N.Y. 49; State v. Nelson, 91 Minn. 143; State v. LaGrande, 99 Iowa 10; State v. DeBord, 88 Iowa 103; State v. Thompson, 95 Iowa 464; Rev. Codes N.D., 1905, section 10157.
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: 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 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...
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