State v. Williams

• Decision Date: 19 December 1922
• Docket Number: 2545. [a1]
• Citation: 210 P. 995,46 Nev. 263
• Parties: STATE v. WILLIAMS.
• Court: Nevada Supreme Court

210 P. 995

46 Nev. 263

STATE v. WILLIAMS.

No. 2545. ^[a1]

Supreme Court of Nevada

December 19, 1922

Appeal from District Court, Washoe County; Geo. A. Bartlett, Judge.

Elmer Williams, alias James P. Doyle, was convicted of forgery, and he appeals. Affirmed.

Frame & Raffetto, of Reno, and T. J. D. Salter, of Winnemucca, for appellant.

L. D Summerfield, Dist. Atty., and Harlan L. Heward, Asst. Dist Atty., both of Reno, Leonard B. Fowler, Atty. Gen., and Robert Richards, Deputy Atty. Gen., for the State.

SANDERS C.J.

An information was filed in the court below against the defendant, charging him with the crime of forgery, alleged to have been committed as follows:

"* * * That said defendant on the 4th day of November A. D. 1921, or thereabouts, and before the filing of this information, at and within the county of Washoe, state of Nevada, did then and there willfully, unlawfully fraudulently, and feloniously, with the intent to defraud one Edward Herzog, complainant herein, make, pass, utter, and publish a certain fictitious check and instrument in writing for the payment of money, purporting to be the check and instrument of one R. J. Dawson, when in fact there was no such individual as said R. J. Dawson in existence, the said fictitious check and instrument being directed to and drawn upon the California National Bank, of Sacramento, Cal., and being in words and figures as follows, to wit:

'Sacramento, Nov. 3d, 1921. No. 104.

The California National Bank 90-33

of Sacramento

Pay to the order of James P. Doyle $41.50, forty-one and 50/100 dollars.

R. J. Dawson.'

--when in truth and in fact the said defendant, Elmer Williams, alias James P. Doyle, knew that said check and instrument was fictitious at the time of his making, passing, uttering, and publishing the same as aforesaid. * * *"

The defendant was convicted and sentenced to the state prison for a term of not less than one or more than 14 years.

Upon the trial the state introduced as a witness R. S. Smith, who testified, in substance, that he was and had been assistant auditor of the California National Bank, of Sacramento, Cal.; that as such he had access to the records and books of said bank; that it was his duty, as assistant auditor, to ascertain who were the customers and depositors at the bank and who had funds or credits therein on which to draw checks; that its books were in daily use of the bank at Sacramento, Cal.; that he had had occasion recently to examine said books to ascertain if R. J. Dawson, the purported drawer of the alleged check, had an account at said bank; and that the books did not show that said Dawson had an account at the bank. The defendant objected to the evidence, upon the ground that it was not the best evidence of the fact sought to be established, namely, that the purported drawer of the check had no account at the bank.

Counsel seem to concede that a bookkeeper or teller of a bank is qualified to testify that a certain drawer of a check thereon had no account therein, but insist that an assistant auditor of a bank is not so qualified. We are not concerned with the force of the testimony, but in this instance we are satisfied that in consideration of his duties as detailed by the witness he was qualified to testify that the books of the bank did not show that the purported drawer of the check had an account at the bank. This, we are of the opinion, may be done by a witness who is familiar with the books, and has examined the same with the view of ascertaining the fact. Strong v. State, 18 Tex.App. 19.

We conclude that there was no reversible error in the court's ruling on the assignment based on Smith's evidence.

Upon the conclusion of the testimony, the court instructed the jury, in writing, as follows:

"You are instructed that, before you can find the defendant guilty, it is incumbent upon the prosecution to establish by evidence beyond a reasonable doubt each of the following facts, which are essential elements of the offense charged:

First. That there was not in fact any such a person as R. J Dawson.

Second. That at the time of uttering the check in question the defendant knew that there was no such person as R. J. Dawson.

Third. That said check was passed by the defendant with the intent to defraud.

It is essential that the state establish each of the above elements by evidence establishing beyond a reasonable doubt that each of the said elements in fact existed, and the proof of any one of the same, in the absence of proof of the others, is insufficient. However, when a check or other instrument in writing is drawn upon any bank, proof that the purported drawer of the same had no account at said bank shall be considered material evidence tending to sustain the allegation of the nonexistence of the drawer of such instrument.

In the event that you entertain a reasonable doubt as to the existence of any of the above-enumerated facts, it is your duty to find the defendant not guilty."

"The court instructs the jury that, whenever a check or other instrument in writing is drawn upon any bank, proof that the purported drawer of the same had no

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