Davis v. State

Luke, J.

Only the second headnote needs elaboration. It appears, from the evidence, that the purported grantor and the two attesting witnesses whose names were signed to. the deed in question were all three dead; and no eye-witness to the making of the deed, or to its attestation, was offered, either by the State or by the accused. To prove that, the deed was a forgery, the State relied upon witnesses who testified' to their knowledge of the handwriting of the purported grantor and of the attesting witnesses, and who further testified that, in their opinion, the signatures were all false, though good imitations of the genuine. The defendant, on the other hand, offered like evidence to the effect that the purported signature of the grantor was genuine, and offered other evidence to the same effect by expert comparison of that signature with another signature, which was proved to be the genuine signature of the purported grantor. To prove the defendant’s guilty knowledge and fraudulent intent, the State relied upon evidence tending to show that the grantee in the alleged deed was a corporation, that the defendant was president of that corporation, that the deed was first found in his possession and was filed for record by him, that he had made various conflicting statements as to the source from which he had received it, that he had once refused to surrender it on demand by counsel of the purported grantor or his estate, and that later, when arrested and charged with the forgery of the deed, he ljtad offered to surrender it upon condition that he be discharged from custody. The defendant, in his statement to the court and jury, denied any guilty knowledge or fraudulent intent on his part, and introduced in evidence, as correspondence between the grant- or and the grantee, letters purporting to. have been written several years before the origin -of this prosecution, during the year following the date of the deed in question, and tending to show an effort on the part of the grantor to repossess the deed in question, because, as he contended, his signature thereto had been obtained by fraud on the part of the grantee. The deed itself is dated May 12, 1910; the purported grantor appears to have died in 1915; the deed was filed for record in February, 1918, and the indictment was returned in July, 1920. The allegation that the defendant filed the deed for record was established by positive and direct evidence, and was admitted by him in his statement.

Under that evidence, it was for the jury to say whether or not the accused was guilty of the charge laid’ in the bill of indictment. In such a case, however, the trial judge must, whether so requested or not, instruct the jury that, to warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis than that of the guilt of the accused. In this case the learned trial judge failed, perhaps by mere. oversight, so to charge the jury; but that failure being assigned as one of the grounds of the motion for a new trial, both the lower court and this court are bound, as matter of law, to sustain the motion.

For the reason hereinbefore given, it was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Bloodworih, J., concur.