Duffin v. People , 107 Ill. 113 ( 1883 )

Mr. Justice Scholpield

delivered the 'opinion of the Court:

The indictment under which plaintiff in error was convicted contains five counts, charging, in varying language, in some, the forging, and in the others, the uttering, and publishing as well, of an instrument, of which the following is a copy:

“$Í106tW. Belleville, Ill., April 12th, 1880.

“Four months (without grace) after date we, or either of us, promise to pay to the First National Bank of Belleville, or order, the sum of four thousand one hundred and six -$>s dollars, for value received, with eight per cent interest per annum from maturity, at the office of the First National Bank of Belleville.

gatoh 0c£|tntbt,

Julius Winkles,

Wm. B. Padeield.”

A general motion to quash the several counts was made hy plaintiff in error, and overruled by the court, and this is the first error alleged in the ruling to w.hich our attention is invited' by the printed argument in behalf of plaintiff in error. The contention is, that the indictment .charges, in each count, the forging of the name of Jacob Schmidt, and the copy of the note set out in each count shows the name to have been written in German; but since there is no allegation that the name of Jacob Schmidt was signed in German, each count is, upon its face, defective. In support of this, reference is made to Wharton on Crim, Pleading and Practice, (8th ed.) sec. 181, and Wharton on Crim. Law, (8th ed.) see. 729. The references are hardly pertinent. They show that an instrument in a foreign language must be translated and explained by averments in the indictment. But there is no pretense that the instrument here charged to have been forged is in the'German language. The name of Jacob Schmidt is simply written, in Gothic instead of Roman characters, and when written in the one it is not made to appear it is in anywise different from what it is when written in the other.

A special objection to the third count is urged, in that it charges that plaintiff in error did “forge and counterfeit a certain forged and counterfeited paper writing, ” whereas it ought to have charged the forging and counterfeiting of a paper writing, etc., merely. We perceive no inaccuracy in the language of the count. The result of forging and counterfeiting is, certainly, a forged and counterfeited paper writing. The words “forged” and “counterfeited,” as used, are simply equivalent to saying plaintiff in error made,or fabricated a false and counterfeited paper writing, by the process of forging and counterfeiting. The count is in the language of the old precedents. (1 Wharton on Precedents and Pleas, (4th ed.) No. 293. See, also, the form of indictment in The People v. Kingsley, 2 Cowen, 522.) But even if the count were bad, since the verdict is general, and the other 'counts are good, the objection would be unavailing. Townsend v. The People, 3 Scam. 326; Holliday v. The People, 4 Gilm. Ill; Sahlinger et al. v. The People, 102 Ill. 241; Murphy v. The People, 104 id. 528.

On the trial, the prosecution offered in evidence the promissory note alleged to have been forged, and a photographed copy thereof. Plaintiff in error objected, first, that the name of Jacob Schmidt was in a foreign language; and second, that the process of taking the photographed copy had not been proved by an artist in that line. Both objections were overruled by the court, and the offered evidence was given to the jury. This ruling constitutes the second error claimed, in the argument on behalf of plaintiff in error, to have occurred to his prejudice.

If what has been said in regard to the name of Jacob Schmidt, in discussing the motion to quash the indictment, is correct, it must follow the objection that his name was written in a foreign language is untenable. The name is simply “Jacob Schmidt,” written in characters that are understood as representing J-a-k-o-b S-c-h-m-i-d-t,

If the purpose of introducing the photographed copy in evidence had been to have proven the forgery by a comparison of handwritings, there would have been much more force than there is in the objection in that regard; but there was no such purpose or' use. The officers of the bank, observing that the ink in which the note was written was rapidly fading, had the note photographed, and this copy was offered in evidence simply to .prove the words of the original, and not the peculiarity of handwriting. Since the taking of that photograph the original has faded so that it has become illegible, or practically so. Under these circumstances we think there can be no doubt parol evidence of what the original note was would have been competent evidence, and most certainly a compared copy would, though there had been no attempt, in making it, to imitate the handwriting of the original. An artist may be required to determine whether the letters of a professed copy are an exact similitude as to form, shading and coloring of those of the original, where that is material; but inasmuch as the words may be the same, though the form, shading and coloring of the letters are different, it can not be indispensable to have a photographic artist where the sameness of the words in a copy with those in the original is alone to be proved. We think the proof of the copy here was clearly competent. The cashier of the bank ought to have been, and we presume was, able to tell just as well as the best photographer whether the toords in the copy were the same as the icords in the original.

The next contention of plaintiff in error is, that the evidence does not sustain the verdict. Each of the three purported makers of this promissory note swears, positively and unqualifiedly, that he did not sign it. Plaintiff in error admits they' did not sign it knowing what it was, but insists, nevertheless, their signatures are genuine, and that they do not explicitly deny that they are genuine. He admits, and testifies, that he presented this promissory note to the bank and obtained $4000 thereon, which he appropriated to his own use, and that neither of the purported makers of the note signed it knowingly or intentionally, but, he says, by artifice and deception he obtained each of their genuine signatures thereto; that he obtained Winkler’s under pretext of haying him sign a duplicate release of a mortgage; that he obtained Schmidt’s by pretending to have him sign an attachment bond, and that he obtained Padfield’s by having him sign what Padfield supposed to be a receipt; that in each case he artfully substituted the note for that which they were requested to sign and supposed they were signing when they wrote their names, without attracting their attention. He says he made an ink that he knew would rapidly fade, with which he wrote or rather filled up the note, and in which each of the parties wrote his name; that he did this in order that the note might become illegible before maturity, and the loss, therefore, fall on the bank rather than on the purported makers of the note. We think the purported makers of the note do each deny, in their evidence, the genuineness of their signatures, as well as the fact that they ever signed such a note. Schmidt, in answer to the question, “Did you sign this note?” answered, “No sir, I never did. I never signed any such note as that, for Felton or any body else. I never put my name there. ” And he positively denied the occurrence of the circumstances under which plaintiff in error testified he obtained his signature. He testified that he had never in his life signed more than one paper at the request or in the presence of plaintiff in error, and that was a contract between himself and James M. Padfield. Winkler testified : “I never signed any note payable to the First National Bank. I never signed this note.” And he also positively denied the occurrences detailed by plaintiff in error as those under which he obtained Winkler’s signature. He testified that he never signed any paper at the request or in the presence of the plaintiff in error, which went into the custody of plaintiff in error. Padfield testified: “The signature on that note is not mine. It is a pretty good imitation. ”

There were other circumstances before the jury strongly tending to prove the guilt of the plaintiff in error,—such as, when first arrested, denying his name, and afterwards admitting his guilt. Undoubtedly some circumstances were proved, tending, though, as we think, but slightly, to corroborate the testimony of plaintiff in error; but the weight and effect of these were, properly, questions peculiarly for the jury,—and we can not say they clearly erred in their duty in this respect. The shameless defence interposed, indicates, in itself, a mind deliberately trained in wrong, and a conscience oblivious of a sense of justice. One who can, with exultation, as plaintiff in error seems to, 'tell such a story as he does, would not likely hesitate to screen himself, to the extent he could, behind false statements, and a jury can not be censured for disbelieving such an one when contradicted by other witnesses of unsuspected veracity.

The next point contended for by counsel for plaintiff in error is, the court erred in refusing certain instructions asked on his behalf. One of these reads thus:

“The defendant in this case has testified. If the jury, having heard this testimony, and weighing it with the other evidence in the case, has a reasonable doubt that the statement of the defendant in regard to the making and signing of the. note in controversy is or is not true, they must acquit him. ”

This was very properly refused. At" best it could only have confused the minds of the jurors, and misled them from the,true point of inquiry. In other instructions .asked by plaintiff in error, and given by the court, the jury were fully instructed as to the doctrine of reasonable doubt, and nothing more on that subject was necessary.

Another instruction was neither marked “given” or “refused,” but was not permitted to be read to the jury. This was, in effect, its refusal. (Cook v. Hunt, 24 Ill. 535; McKenzie v. Remington, 79 id. 388.) The instruction was artfully framed to mislead the jury, and was properly refused. It reads thus:

“The court instructs the jury, that if the jury, taking the evidence for the prosecution, which they believe to be true beyond all reasonable doubt, and that for the defendant, which is not false beyond all reasonable doubt, can reconcile the same with any theory of innocence of the crime charged in the indictment, it is their duty to acquit the prisoner. ”

No rule of law requires the jury, in considering of their verdict, to take up and consider the evidence in this order. All the evidence is to be fully and fairly considered, and when thus considered the jury are to determine, is the defendant proved, beyond a reasonable, doubt, to be guilty as charged in the indictment. But often evidence which, in and of itself, when considered alone, is inconclusive or but probable evidence, when considered in connection with other evidence becomes of'great probative force. The effect of every part of the evidence upon and in connection with every other part is to be considered, for, in this way, not infrequently the correctness of the different parts, or the reverse, is demonstrated, and the combined result of all can in no other way be ascertained.

In two other instructions refused the court were asked to instruct the jury that they should acquit if the jury had a reasonable doubt whether either one of the purported makers signed the note. This is not the law. If either signature was proved to have been forged, the offence charged was made out. 1 Wharton on Crim. Law, (8th ed.) secs. 677, 678.

The other instructions refused were properly refused, because the principle attempted to be asserted was embraced by instructions previously given.

Some point is made in argument on the alleged insufficiency of the proof to show that the intention was to injure ' the bank, as charged in the indictment. Plaintiff in error testified the intent was to injure the bank, and he also testified that he obtained the money from the bank on the note.

This was ample evidence of an intent to injure the bank. See Wharton on Crim. Law, (8th ed.) sec. 713.

The last objection that we deem it important to notice is, it is claimed plaintiff in error was seriously prejudiced before the jury by certain language and conduct of one of his own attorneys, (detailed at length in an affidavit filed in support of his motion for a new trial,) who became intoxicated, and withdrew from the defence while the case was being finally argued, and also by the allusion to that attorney’s withdrawal from the defence by the attorney making the closing speech, on behalf of the prosecution. If the guilt of the plaintiff in error were doubtful, or if the punishment imposed might be regarded as excessive, we are not prepared to say that we would not hold the case should be reversed for the language and conduct of the attorney as recited, (its truth being shown by the bill of exceptions,) in connection with this improper allusion of the attorney for the prosecution ; but in our opinion, under the proofs preserved in the record, the guilt of the plaintiff in error is not doubtful, and the punishment imposed upon him is not excessive, and so it must result that the language and conduct of the defendant’s attorney, and the allusion of the attorney for the prosecution complained of, produced no improper result. It would, indeed, have been matter of astonishment, if, under all. the proofs recited in this record, the jury had found plaintiff in error not guilty, and there are no circumstances of extenuation or mitigation in proof. By his own showing he was possessed of a liberal education, and was licensed to practice the law. No impediment to a successful, honorable career, save his dishonesty, barred his way. It does not even appear that he was impelled by any present need of money. With more than ordinary deliberation, as is apparent from his own testimony, he abandoned a career of honesty for one of crime. His education and his professional connection made him much more dangerous to society than he would have been if he had not enjoyed those advantages. It is, under all the circumstances proved, eminently proper that a punishment should be imposed that may make his ease an example to deter others, in like situation, who-may be tempted to sin as he did. If the language and conduct of defendant’s attorney was as disclosed in the affidavit of plaintiff in error, it was a gross breach of professional duty, and a serious contempt of court, and the attorney should have been promptly and severely punished; but it rested with.the trial judge to inflict that punishment, or mercifully to pass it by without notice, and that he did the latter is no ground of error here. It is enough for the present that the conduct of .that attorney, however censurable, did not, in our opinion, improperly affect the action of the jury.

The judgment is affirmed.

Judgment affirmed!.