Saucier v. State ( 1912 )

Reed, J.,

delivered tbe opinion of tbe court.

Appellant was indicted for the forgery of a county warrant. The indictment includes two counts, one charging forgery of the warrant, and the other the uttering of the forged paper. A demurrer was interposed to the indictment, and was overruled by the court. The court ordered the district attorney to elect upon which count appellant would be tried, and he selected the second count,, which charged the uttering of the forged paper.

A warrant on the treasurer of Jackson county was drawn through an order of the board of supervisors of that county by the clerk of the board for five dollars and fifty cents, payable to Charles Lee, or bearer, and payable out of the forest and game fund of that county. This order, with others, was in a warrant book, which was allowed to lie on the desk in the office of the chancery clerk. Appellant was an abstracter in Jackson county, and a daily and frequent visitor to the chancery clerk’s office. The warrant book disappeared, and has never been found. Among the warrants in the book at the time of its disappearance was the one payable to Charles Lee. Some time after the loss of the warrant book, and in September, 1910, appellant presented to the Pascagoula National Bank three county warrants, the one above mentioned in favor of Charles Lee for five dollars and fifty cents, one payable to John Parker for five dollars and one payable to C. R. Gibson for ten dollars. All were indorsed, apparently, by the parties to whom they were payable, and all were warrants to be paid out of the forest and game fund. Upon request of the bank, appellant indorsed his own name on the warrants, and the bank paid him the amount of the same. It appears that the warrants in favor of C. R. Gibson and John Parker were in the warrant book when it disappeared from the chancery clerk’s office. Later Charles Lee called at the clerk’s office for his warrant. Information had been received that the three warrants named had been paid by the treasurer of the county, and that the last indorser on the warrants was appellant. Upon Mr.’ Lee telling appellant that he had never disposed of the warrant in his favor, apellant refunded him the amount. Mr. Lee testifies that appellant stated that he would pay him the money if he would say nothing about it. Appellant explains his possession of the warrants by the statement that he purchased them from a colored man named Lee, who came to him on the streets after the hour when the banks had closed with the three county warrants named, and that he paid sixteen dollars therefor. He testifies that he has never seen the man who sold him the warrants since, and he does not know where he is. He understood that he lived somewhere in the country, and he also states that he kept the warrants some time, perhaps a couple of weeks, before he cashed them. It appears from the testimony that after the demurrer, which was filed to the indictment, was overruled, and the case was set to be tried the next day, appellant fled from the state, and was not apprehended until some time later, when he was arrested in San Antonio, Texas, and brought back to Jackson county.

It is contended that the warrant in this case was not valid, and therefore not the subject of forgery. The warrant is based upon a regular allowance of the board of supervisors, in accordance with a general statute. It is properly drawn, with all necessary information upon its face, and properly signed. It is an instrument apparently complete, and from its use-, as shown by the testimony, was negotiable, and a sufficient claim against Jackson county. It was surely an evidence of the right of Charles Lee, the payee ,to collect from Jackson county the sum of five dollars and fifty cents. It was not void on its face, nor meaningless, nor indefinite, because it contained all necessary information as to its purposes, and was properly drawn and signed. It surely possessed apparent legal efficacy. It was the subject of forgery. 19 Cyc. 1380. “Forgery may be committed of any writing which, if genuine, would operate as'the foundation of another man’s liability or the evidence of his right.” In re Tully (C. C.), 20 Fed. 812.

It is also contended that the writing of the name of Charles Lee, the payee, on the back of the warrant, was a harmless alteration, and is not, therefore, forgery. Under the law of negotiable instruments, when the payee’s name is indorsed on the back, he becomes liable to the holder for the payment of the paper he indorses. In the present case, after the indorsement of the payee’s name, the holder could look to both Jackson county and Charles Lee for the payment of the amount of the warrant. By reason of such indorsement the value of the warrant was increased to the extent of the solvency of Charles Lee, the payee. “It is well settled that making a false indorsement of the name of the payee of an instrument, or one of the payees, or of the maker, if payable to maker’s order, is forgery.” 19 Cyc. 1386.

It is claimed in the briefs of counsel for appellant that the court erred in refusing to give two instructions offered, whereby the jury were told that if there were two hypotheses of the case in the minds of the jury, one that the defendant is innocent, and the other of his guilt, the jury should adopt the one of innocence, even though the other is supported by greater evidence. Counsel cite the case of Thompson v. State, 83 Miss. 289, 35 South. 689, to sustain their contention. The court did not err in refusing to give these instructions. See Runnells v. State, 96 Miss. 92, 50 South. 499; Roux v. City of Gulfport, 97 Miss. 559, 52 South. 485.

Another assignment of error is based upon two questions asked the appellant by the district attorney on cross-examination: (1) The following question: “Isn’t it a face that you are also charged in ten indictments here of forgery and uttering forgery of deeds and other county warrants?” The district attorney justifies his asking' this question by the explanation that another witness had testified relative to the ten .indictments. The other question complained of is: “Isn’t it a fact that yon were-run out of the Louisiana parish where you were born and raised on account of transactions regarding land over there?” In view of the general fair trial of this case, and the full presentation of all the evidence to the jury,, and the clear instructions given for both the state and appellant, we do not consider this prejudicial to the interests of appellant, nor that it interfered with his having a fair and impartial trial, to the extent of it being reversible error. However, we deem it proper, and the duty of this court, to express with all seriousness and emphasis our disapproval of the practice of prosecuting attorneys in asking such incompetent questions as those stated above. It should be the duty of this officer of the state, wlu> exercises a most important function in the enforcement of the criminal laws, to see that every man who is brought to the bar of justice has a fair and impartial trial; and he should never do anything to bring a person charged with a crime, no matter how great may be his guilt, into disrepute by the asking of an incompetent question, or seeking to introduce before the jury incompetent evidence, which may tend to reflect upon his character. From the ability of the prosecuting attorney in this case, and his general fairness in the conduct of the case, we are led to believe that he forgot for a moment his important office, and the dignity and respofisibilities of his position as prosecuting attorney, when he asked the questions.

The evidence clearly establishes the forgery alleged in this case. The jury refused to accept the explanation of the appellant of his obtaining possession of the paper. In fact, the jury was convinced that the appellant was guilty of uttering the.forgery as .charged, and we, after .a careful consideration of all of the record, have reached the same conclusion. Therefore we cannot decide that .appellant has been deprived of a fair and impartial trial by the impropriety of the district attorney in asking the incompetent questions.

Affirmed.