Williams v. State
| Citation | 90 So. 886,128 Miss. 271 |
| Decision Date | 13 March 1922 |
| Docket Number | 22364 |
| Court | United States State Supreme Court of Mississippi |
| Parties | WILLIAMS v. STATE |
CRIMINAL LAW. Forgery. Defendant not present could only be convicted as accessory before the fact; instruction should define accessory before the fact.
Where a person is indicted for a forgery, and the evidence shows he was not present aiding, assisting and encouraging the commission of the offense, and did not personally commit the alleged forgery, he can only be convicted of the offense charged on the theory that he was an accessory before the fact, under section 1026, Code of 1906 (Hemingway's Code section 751), and in such case an instruction for the state which tells the jury that it is their duty to convict if he knew that another did the crime of forging the signature and that he was a party to the forgery is erroneous. The instruction should define what constitutes an accessory before the fact or charge the elements necessary to make out the crime charged.
APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.
Charley Williams was convicted of forgery, and he appeals. Reversed and remanded.
Judgment reversed and cause remanded.
B. F Carter, for appellant.
We insist that instruction No. 1 given for the state was erroneously given. It certainly is not the law, does not follow the law, is evasive and ambiguous, and very misleading, and not warranted by the testimony. By it the jury were told that if they believed that Charles Williams the defendant (appellant here) came into possession of the check and carried it and gave it to his wife and she carried it and forged the name Mrs. Mattie Butler, on it, and that the defendant had knowledge of this and was a party to the forgery, etc., and does not even attempt to state how he was a party to the forgery in any manner. The instruction is erroneous also because there is absolutely no testimony to warrant the giving of any such instruction. Not even a shadow of testimony that he ever carried the check and gave it to his wife or that he had any knowledge that his wife had forged the name of Mrs. Mattie Butler, on the check, or that he ever knew that there was any such endorsement placed or to be placed on the said check, nor is there any testimony that he was ever in possession of this check. And so we say the instruction is all wrong because not based on the law and the evidence. Instructions should be based on the evidence in the case, and not on suppositions, or prejudicial presumptions, and certainly there was no evidence to warrant the giving of this instruction, and it simply opened up the flood gates of suspicion, prejudice, and presumption, without which we say appellant would never have been convicted in this case.
D. C. Enochs, assistant attorney-general for the state.
The appellant complains that the lower court erred in granting the instruction for the state set out on page 6 of the record. The instruction, to my mind, is so accurately drawn under the law and facts of the case that it is not debatable. I think the main objection to this instruction is that opposing counsel believes the appellant should have been granted a peremptory instruction, and that there is no evidence to support this instruction in behalf of the state.
Ordinarily, when an instruction is alleged to be erroneous, there is something about it that may be debatable; but this instruction is so perfect to me, that I see no toehold for an argument. I submit that the instruction is valid and especially applicable to the facts in this case.
The appellant was indicted for forgery, tried and convicted, and sentenced to the penitentiary. The indictment charges the forgery of an indorsement upon a government check payable to Mrs. Mattie Butler for war risk insurance in favor of Mrs Butler for the loss of her son in the World War. The facts disclosed in the trial were that the appellant and the minor son of Mrs. Butler met the mail carrier, and the appellant asked for his own mail and was told that he had none. He then asked for Mrs. Butler's mail and was given the envelope or letter containing the pay check. He tore the letter open in the presence of the mail carrier and called out the amount of money called for by the check. He then carried the letter to his home and turned it over to his wife, who carried it to a bank at Laurel, Miss., and presented it to be cashed. At the time of presentation it was not indorsed by the payee, and the paying teller instructed Mrs. Williams, the wife of the appellant, who presented the check that it would have to be indorsed, and it was then signed by Mrs. Williams as follows: "Mrs. Mattie [her mark X] Butler"--and witnessed by G. W. Hosey and D. U. Maddox, and presented to the bank and cashed. A few days thereafter Mrs. Mattie Butler, the payee, called at the bank to know whether the check had been cashed and was informed that it had. The federal government sent its inspector to investigate, and he learned from the mail carrier that the letter had been delivered to the appellant. He then called upon the appellant, and the appellant denied that he had received such a letter, but claimed that he had received a pay check from the government for himself on some account. Thereafter the appellant and his wife were separately indicted for the forgery of the check. When the appellant was indicted the deputy sheriff went to arrest appe...
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