Davis v. State

<p>1. Charles E. Davis and H. D. Leon were jointly indicted for the offense of forgery, it being alleged that the accused “did wrongfully, falsely, and fraudulently make, sign, and forge the name of L. E. Bleckley on and to a certain deed.” A copy of the deed — a warranty deed to land purporting to be from L. E. Bleckley as grantor—was incorporated in the indictment, and it was further alleged that “ said acts were done with intent to defraud Mrs. L. E. Bleckley.” In its formal parts the indictment followed the statute. The defendant Davis demurred to it, both generally and specially. Held:</p> <p>(а) The indictment was not subject to any of the demurrers. Penal Code (1910), §§ 231, 954.</p> <p>(б) The averment that the accused forged the name of the grantor to the deed is equivalent to an averment that they forged the deed. See 12 R. C. L. 139, sec. 2, and dictionary definitions of “forgery.”</p> <p>(c) The fact that one person’s name appears to have been forged with intent to defraud a different parson does not render the indictment defective. Barron v. State, 12 Ga. App. 342 (Id) (77 S. E. 214).</p> <p>(d) Where two or more persons are jointly indicted for forgery, it is not necessary that the indictment show how they could or did jointly take part in the manual act or acts charged against them. The particular part played by each is a matter to be shown by evidence, and not by pleading. Jackson v. State, 87 Ga. 432 (13 S. E. 689) ; Roane v. State, 97 Ga. 195 (22 S. E. 374); Mangham v. State, 9 Ga. App. 559 (2) (71 S. E. 922).</p> <p>(e) The part of the indictment set out above contains a sufficient averment of intent to defraud. The indictment need not on its face show in what manner or by what means it was intended to consummate the fraud. Travis v. State, 83 Ga. 372 (9 S. E. 1063) ; Shope v. State, 106 Ga. 226 (1) (32 S. E. 140); McLean v. State, 3 Ga. App. 660 (1) (60 S. E. 332. A further averment as to the ownership of the land at any time was wholly unnecessary, and the averment made as to its “present” ownership and the source of the owner’s title was mere surplusage, whether the pleader’s purpose therein was to show how the intended fraud might be consummated or not.</p> <p>2. While the testimony of an accomplice must be corroborated by other evidence, which directly connects the accused on trial with the perpetration of the crime,- before such testimony will authorize a conviction of a felony, yet the law does not require that the corroborating evidence shall in and of itself alone be sufficient to warrant a verdict of guilty, or that the testimony of the accomplice shall be corroborated in every material particular. On the contrary, slight evidence that the crime was committed by both defendants, and identifying them with it, will corroborate the testimony of the accomplice and warrant a conviction. Penal Code (1910) § 1017; Evans v. State, 78 Ga. 351; Pritchett v. State, 92 Ga. 33 (1) (18 S. E. 350); Boswell v. State, 92 Ga. 581 (17 S. E. 805); Chapman v. State, 112 Ga. 56 (2) (37 S. E, 102); Dixon v. State, 116 Ga. 186 (7) (42 S. E. 357); Nance v. State, 126 Ga. 95 (1) (54 S. E. 932).</p> <p>(a) In this ease the testimony of the accomplice tended to prove the case as laid, and it was sufficiently corroborated, by other evidence.</p> <p>3. A person may be principal in the first or the second degree in the offense of forgery as well as in any other offense. Renal Code (1910), § 42. And as principals in the first and second degrees are punished alike, no distinction between them need be made in the indictment. Bradley v. State, 128 Ga. 20 (2) (57 S. E. 237). Furthermore, where two persons are jointly indicted for forgery, each may be convicted upon evidence showing that he- was either the actual perpetrator of the crime or was present aiding and abetting the other in its commission. McLeod v. State, 128 Ga. 17 (3) (57 S. E. 83) ; Futch v. State, 137 Ga. 75 (3) (72 S. E. 911).</p> <p>4. Where in the trial of a criminal case a witness for the State testifies that he dealt with the accused as requested in a letter which he received by mail, purporting to be from a third person, of whom he professes to know nothing, and counsel for the State and for the accused thereupon elicit, without objection, so much of the contents of the letter as tend to explain the conduct of the witness, it affords no cause for a new .trial that the court refuses to admit in evidence the entire letter when subsequently tendered by counsel for the accused. Renal Code (1910), § 1023. Moreover, the ground of the motion for a new trial in which error is assigned as to that ruling is defective. It is not shown that the letter was received in due course of mail.</p> <p>5. The instructions given with reference to accomplices, venue, and the statute of limitations were sufficiently full and fair. The refusal to give the requested charges on the same subjects does not, therefore, afford cause for a new trial.</p> <p>6. Witnesses were examined with respect to numerous documents. While one witness was being interrogated by the State’s counsel with reference to a paper then in the hand of the witness the defendant’s counsel insisted that the witness should identify the paper with greater certainty. The judge thereupon questioned the witness as to the nature and the date of the paper, and, after the witness had answered, remarked: “Now there is no doubt about it.” It is contended that this remark by the court was an expression of opinion as to what had been proved, in violation of section 1058 of the Penal Code. Held: The complaint is without merit. The remark of the judge, when considered in connection with the attendant circumstances, is capable of but one construction, to wit, that the previous doubt, if there was any, as to the subject-matter of the testimony had been removed. Moreover, there was no request for. a mistrial on account of the statement complained of.</p> <p>7. - Where evidence is offered and objected to, and counsel for the party offering it states that he expects to offer further evidence removing the ground of objection, and the court thereupon admits the evidence temporarily, expressly or impliedly reserving to the objector the right to renew his objection unless the ground thereof is satisfactorily removed, a failure to renew such objection before verdict amounts to a waiver thereof. The 12th ground of the amendment to the motion for a new trial comes within this rule. Stone v. State, 118 Ga. 705 (9) (45 S. E. 630, 98 Am. St. Rep. 145) ; Quinn v. State, 22 Ga. App. 634 (2) (97 S. E. 84), and eases cited. Moreover this ground is defective, in that the evidence objected to is not set out in the ground.</p> <p>8. The deed alleged to have been forged bearing a date in 1852 and an imprint of the “Georgia Journal,” and there being evidence to show that its written portion was upon a photo-engraved form, and that photo-engraving was not in use in this country in 1852, and did not come into commercial use until two or three decades thereafter, and. a genuine deed dated in 1847 and written upon a substantially similar form having been admitted in evidence for the sole purpose of camparison with the forged deed, there was no error in admitting testimony to show that the genuine deed was written upon a type-printed form, or to show or explain any other point of similarity or difference between the two deeds. The 13th and 14th grounds of the motion for a new trial are therefore without merit.</p> <p>9. An illogical argument of counsel affords no ground for declaring a mistrial, even if it be conceded that the argument complained of was illogical. Holmes v. State, 7 Ga. App. 570 (2) (67 S. E. 693) ; Adkins v. Flagg, 147 Ga. 136 (2a) (93 S. E. 92), and cit. Especially is this true where, as in this case,, the court, in overruling the motion to declare a mistrial, added, in the hearing of the jury, that it was for them to determine “if the inferences the solicitor-general and other counsel draw are correct.” The 15th ground of the motion for a new tidal is therefore without merit.</p> <p>10. The defendant’s counsel having apparently sought, during the cross-examination of the witness Leon, to discredit the motive and the conduct of the solicitor-general, because of his several conferences with Leon in the preparation of the case for trial, the court did not err in permitting the solicitor-general, on redirect-examination of this witness, to ask liow many times he had been called from the jail for such conferences; nor was there error in permitting the answer of the witness to remain before the jury, the witness having replied: “Gentlemen, he (meaning the solicitor-general) has got a pile o'f papers there to fill up this desk two or three times, that he has gone over with me — papers that I have never seen before or gone over before.” Even if such a reply could have prejudiced the defendant’s cause, it was, by his own counsel, made proper matter for the jury, to prevent their being unjustly prejudiced against the State’s counsel. The 16th ground of the motion is therefore without merit. Stone v. State, 118 Ga. 705 (7) (45 S. E. 630, 98 Am. St. R. 145).</p> <p>11. Tlie court did not err in admitting in evidence a letter, purporting to be from Davis to Leon, saying, “ Herewith I send you a check for $20.00 on South Georgia matter,” Leon having previously testified that he received the letter by due course of mail, and that the remittance was a payment on his share of the proceeds of the alleged forgery, and there being other evidence to show that the letter (the body and signature to which were typewritten) disclosed the same peculiarities of the writing machine as numerous other letters written by Davis during the period in question, and it further appearing that the letter was discovered upon an official search of Leon’s room about the time of his arrest, and long before His confession of his own guilt or his agreement to testify as a witness for the State against Davis. Ragan v. Smith, 103 Ga. 556 (1) (29 S. E. 759); Lancaster v. Ames, 103 Me. 87 (68 Atl. 533, 17 L. R. A. (N. S.) 229) ; People v. Storrs, 207 N. Y. 147 (100 N. E. 730, 45 L. R. A. (N. S.) 860, Am. Cas. 1914 C, 196).</p> <p>(a) This ruling disposes of the 17th ground of the motion far a new trial; and, upon the same principles and authorities, the 19th, 20th, 25th, 26th, 27th, 28th, 29th, and 30th grounds of the motion are without merit.</p> <p>12. The accused being on trial for the alleged forgery of a warranty deed, the fact that the grantee named therein did not return for taxation the land therein described, during any one of the several years of his purported ownership under the deed, was a proper circumstance for the consideration of the jury, and the court did not err in admitting proof thereof. The 18th ground of the motion for a new trial is therefore without mei'it.</p> <p>13. The court’s instructions were not erroneous for any of the reasons assigned in the 21st and 22d grounds of the motion for a new trial.</p> <p>14. Where a telegraph company is shown to have destroyed all original messages deposited with it for transmission by wire during a certain period, and the proved agent of the defendant on trial in a criminal case is shown to have received during that period a number of telegrams purporting to be from the accused, the subject-matter of which relates to the offense or some feature thereof, and is necessary to complete, or is consistent with, other proved correspondence between the accused and his said agent, the messages so delivered to the agent are admissible in evidence. Civil Code (1910), §§ 5759, 5760; Western Twine Co. v. Wright, 11 S. D. 521 (78 N. W. 942, 44 L. R. A. 438). The 23d ground of the motion for a new trial is therefore without merit.</p> <p>15. The evidence complained of in the 24th ground of the motion for a new trial not being set out therein or annexed thereto as an exhibit, the complaint will not be considered by this court.</p> <p>16. The venue was sufficiently proved.</p> <p>17. The evidence authorized the verdict, and no error of law appears.</p>