Page images
PDF
EPUB
[blocks in formation]

The theory of the prosecution is, that Lindsey, in the State of Missouri, procured the deed to be there forged, and through Morris sent to T. and D. Hall at Steubenville by mail, to be there uttered and published, and that T. and D. Hall were the innocent agents of Lindsey or of Liudsey and Morris in defrauding Turnbull by a pretended sale of the land described.

There is evidence tending to show, that Morris was innocent, and also that he was a confederate of Lindsey in the transaction; but if he was, all his acts were done in Missouri, and consisted of sending the deed to T. and D. Hall at Steubenville, and of conducting the correspondence with them.

During the progress of the trial and for the purpose of proving guilty knowledge on the part of Lindsey, there were admitted, certain other forged deeds published by Lindsey and others found in his possession, purporting to convey other lands to other parties.

These deeds are either general warranty deeds like the one described in the indictment, or trust deeds, purporting to convey lands to secure certain notes and bonds.

The foregoing statement sufficiently presents the grounds for the legal questions saved for report.

JOHNSON, J.

Two questions are presented on the foregoing

statement.

1st. Had the court jurisdiction over the plaintiff in error? and:

2nd. Were the conveyances of other lands admissible for the purpose of showing guilty knowledge?

1st. As to the jurisdiction of the court.

Is the crime charged an extra-territorial crime? Was it committed in Missouri or Ohio?

If he were indicted for the forgery of this deed, he could not be punished in Ohio, as it is conceded that all his acts that constitute that crime, were committed in Missouri. When he procured the notary in St. Louis to forge the signatures and the acknowledgment of the grantors, with the criminal intent, the crime of forgery was consummated in the State of Missouri. this is not the charge in the case at bar. It is for knowingly uttering and publishing as true and genuine a false and forged deed. It is wholly immaterial where the forgery was committed.

But

The question therefore is: was this deed uttered and published in Jefferson County, Ohio, and was Lindsey guilty of this crime?

That this forged deed was uttered and published in Ohio, by T. and D. Hall who supposed it was genuine, is clear from the evidence. Now it is assumed that the jury had evidence

to warrant them in finding that T. and D. Hall did so utter and publish this deed by the procurement of Lindsey.

The crime was, therefore, completed or consummated in Ohio, through the instrumentality of an innocent agent.

It is wholly immaterial whether his co-defendant, Morris, was his confederate or his dupe, as in either case, the acts of Morris by correspondence mailed in St. Louis, to T. and D. Hall, were simply the means used to consummate a crime in Ohio. The crime had its inception in Missouri but it was committed in Ohio, by innocent agents. If a letter containing a forged instrnment is mailed at one place to be sent to another, the venue must be laid where the letter is received. 3 Greenl, Sec. 112.

The crime of uttering and publishing is not complete until the paper comes to the hands of some one other than the accused, and if it be sent by mail for the purpose of being there used, the crime is not consummated until it is received by the person to whom it is to be delivered.

It is a fundamental principle, that a person is responsible criminally for acts committed by his procurement, as well as for those done in person. The inherent power of the state to punish the uttering and publication of forged instruments, within its territorial limits, without regard to the place where the forgery was committed, or purpose was formed, is essential to the protection of her people. It is now a generally accepted principle, that one who in one county or state employs an innocent agent in another to commit a crime, is liable in the latter county

or state.

Robbins v. The State, 8 O. St. 131.
Norris v. The State, 25 O. St. 217.

Wharton on Criminal Law, 7th Edition, Vol. 1, Sec. 210.

Same, Section 278.

See also Commonwealth v. Macloon and others, 101 Mass., 1.

Com. v. Smith, 11 Allen (Mass.) 243.

Com. v. Blanding, 3 Pickering 304.

R. v. Johnson, 7 East 65.

Wh. Con. of L., Sec. 877-921.

People v. Adams, 3 Denio 190, affirmed 1 Comstock 173.

U. S. . Davies, 2 Sumner 482.

State v. Wychoff, 2 Vroom, N. J., 68.

Com. v. Gillespie, 7 Serg. & R. 469.

Stillman v. White Rock Co., 3 Wood & M., 538.
R. v. Garrett, 6 Cox, C. C., 260.
R. v. Jones, 4 Cox, C. C., 198.
State v. Grady. 34 Com. 118.

11. Were the deeds, and deeds of trust admissible for the purpose of showing guilty knowledge?

It is essential that the prosecution should, by competent evidence satisfy the jury that the accused had such knowledge.

These instruments were either general warranty deeds, like the one described in the indictment, or deeds of trust to secure notes and bonds for the payment of money.

It is conceded they were all forgeries. Some of them were found in Lindsey's possession, and some of them had been uttered by him.

They were all deeds of land, some conveying the title absolutely to the grantee, and others to vest such title in the grantee in trust, to secure the payment of money.

Under the Statute of Ohio, (R. S. 7091), it was an indictable offense to forge such instruments, or to utter and publish them with intent to defraud.

The crime here charged is, that of uttering and publishing a forged deed of general warranty. The claim is: 1st, That none of these instruments were admissible, because of the general rule, that another and distinct crime, in no way connected with the one charged, can be given in evidence on the trial of the crime charged; and 2nd, That even if the warranty deeds were admissible, the deeds of trust were not, as not being of the same description with the deed described in the charge.

That the warranty deeds were admissible is well settled.

"In proof of the criminal uttering of a forged instrument it is essential to prove guilty knowledge on the part of the utterer. And to show this fact evidence is admissible that he had about the same time uttered, or attempted to utter other forged instruments of the same description; or, that he had such others, or instruments for manufacturing them in his possession." Greenleaf on Evidence, (8th Ed.) Vol. 3, Sec.

111.

Hess v. The State 5 Ohio 9.

Reed v. The State 15 Ohio 217.
Shridley v. The State 23 O. St. 130.
Bainbridge v. The State 30 O. St. 264.

But it is claimed that these deeds of trust, were not, "of the same description" as the warranty deed, described in the indictment. The words "of the same description," are taken from the above citation from 3rd Greenleaf's Ev. but in 1st Greenl. Ev. sec. 53, the text reads: "So an indictment for knowingly uttering a forged document, or a counterfeit bank note, proof of the possession, or the prior or subsequent utterance of other false documents or notes, though of a different description, is admitted as material to the question of guilty knowledge or intent." The rule as stated by Phillips is: "Thus in a prosecution for uttering a bank note, bill or promissory note, with knowledge of its being forged, proof that the prisoner had uttered other forged notes or bills, whether of the same kind or a different kind, or that he had other forged notes or bills in his possession is clearly admissible, as showing that he knew the note or bill in question to be forged."

1 Phillips on Ev. 768-9.

In a note by Cowen & Hill, which discusses the cases on this rule, the conclusion reached is that, "on the whole, the decided weight of authority would seem to be in favor of receiving the evidence, whether the other bills, &c., be ejusdem generis or not."

This conclusion, when applied to trials for uttering forged and counterfeited instruments is abundantly supported by the authority of cases cited in notes to the foregoing citations. Also. The King vs. Whitley & Hames, 2 Leach, C. C., 983.

Rex v. Ball, Russ & R'y. C. C., 132.
Sunderland's Case 1 Lewin C. C., 102.
2 Russell on Crimes, 404 et seq.
Cook v. More, 11 Cush. 216.
Note 3, to sec. 53-1 Greenleaf.

As guilty knowledge is an essential ingredient of this class of crimes, and as the burden is on the prosecution to prove such knowledge, the reason of the rule is apparent. Without the aid of other acts and conduct of the accused, than the one charged, it would be impossible to prove this allegation. Proof of the single act, charged will not of itself warrant the inference of guilty knowledge. Hence this exception to the general rule, that other acts of the accused, calculated to raise a presumption of such knowledge are admissible. Other acts, which in their nature, do not aid the jury in determining this question, are not competent, but when such acts or conduct tend to raise a presumption of such knowledge they are admissible.

In the case at bar, the charge is for knowingly uttering a forged deed with intend to defraud that is, by this pretended conveyance of the title, to obtain money fraudulently. The forged deeds of trust, were in the nature of mortgages to secure notes and bonds for money. They conveyed the title to a trustee, to secure those who advanced money on the faith of this conveyance.

Although these instruments are not identical in tenor or effect with an absolute deed, yet the fact, if it be one, that the accused was engaged in obtaining money by this class of forged instruments, is calculated to raise a strong presumption, that he knew that a deed of warranty used to accomplish the same purpose, that is to obtain money, was also forged.

The general conduct of the accused in uttering forged deeds of trust, to raise money about the same time, tends to show he was engaged in that business, and the inference is natural and cogent, that he knew, the warranty deed he uttered in the case at bar was of the same character.

Judgment affirmed.

SALE OF REAL ESTATE-SPECIFIC PER

FORMANCE.

SUPREME COURT OF APPEALS OF VIRGINIA.

AVERETT. TRUSTEE &c., v. LIPSCOMB.

1. A testator devised certain real estate to his granddaughter, and directed that it should be held by a guardian or trustee appointed by the court until she arrived at age or married, and should be so held to her separate use, that neither said property, its proceeds or profits

should be liable for the contracts or debts of her husband. The daughter married, and she, her husband and the trustee, attempted to sell and convey the property.

HELD: They have the full power to sell the property, and make a good title thereto.

2. Whilst negative words are not indispensable to restrain the alien ition of property devised or conveyed to the separato use of a wife, and such restraint may be implied, yet the circumstances which will warrant such implication must be plain.

A

3. Property is sold at public auction, and the auctioneer announces that the purchaser will have the right to examine the title, and if he is not satisfied with it, he will not be required to comply with the terms of sale. purchaser is advised by his counsel that the vendors cannot make him a good title, and he therefore refuses to take the property. In a bill filed by the vendors against the purchaser to enforce specific performance of the contract of sale

HELD: Although the Court of Appeals is of opinion that the vendors can make a good title, yet the purchaser is not obliged to take the property, and specific performance will not be decreed.

4. As soon as the property was knocked out to the purchaser, the auctioneer made a memorandum of the sale in writing, and signed it, but failed to state that the purchaser had the right to refuse to comply with terms if he was not satisfied with the title.

HELD: Purol testimony was admissible on the part of the purchaser to show what his whole contract was, and the announcement of the auctioneer that he had the right to be first satisfied with the title, was an important part of the contract.

This was an appeal from the decree pronounced by the Hustings Court of the town of Danville in a suit brought by Lelia W. Gray, Robert F. Gray, her husband, and W. P. Averett, her trustec, against John P. Lipscomb, defendant, to enforce specific performance of an alleged contract of sale. The facts are sufficiently stated in the opinion of the court for a proper understanding of the points decided.

BURKS J.

tate according to the new trust which is created by such direction. This is sufficient to convey the feme covert's equitable interest. When the trust thus created is clothed with the legal estate, the alienation is complete, both at law and in equity."

The fourteenth paragraph of the will under which Mrs. Gray derives title directs the property given and devised to her to be held by a guardian or trustee to be appointed by the court until she arrives at the age of twenty-one years or marries, and upon her marriage to be settled to her separate use, and that the trustee named in the will shall execute and declare for record such trust in reference to the property given as may be necessary to carry out the wishes of the testator in the premises. The directions as to the appointment of the trustee by the court, and the declaration of trust, on record, were duly complied with.

Now, this paragraph is the only part of the will relating to the trust, and it very plainly gives a separate estate without restriction on the power of alienation. It is conceded that negative words are not indispensable to impose restraint on the power. The intention to limit it may be implied, but, as has been often said, it must be clear. There is absolutely nothing in the paragraph referred to, or in the context, or, indeed, in any part of the will, from which such intention can be deduced. In the creation of the use, the operative words are, "shall be settled to the separate use of said girl so marrying, so that neither said property, or its proceeds, nor profits, shall be liable for the contracts or debts of her husband." The first branch of the sentence alone was sufficient to make a separate alienable estate. In Tullett v. Armstrong, 1 Beavan, 1, so often cited with approbation by this court, Lord Langdale lays down the following as one of the rules deduced from the authorities: "If the gift be made for her [the wife's] sole and separate use, without more, she has, during the coverture, an alienable estate independent of her husband." It is very common, however, to add some such words as are found in the latter branch of the sentence-"so that neither said property or its proceeds nor profits shall be liable for the contracts or debts of the husband." They are added ex abundanti cautela to exclude in terms the rights of the husband, not to limit the powers of the wife. As said by Lord Eldon in Parkes v. White, 11 Ves., pow-222, in reference to other words relied on in ar

This is the case of a bill filed by a married woman, in conjunction with her husband and trustee, to enforce specific performance of a contract for the sale of her separate real estate. One of the grounds on which the purchaser resisted the execution of the contract was, that neither the wife, nor husband, nor trustee, nor any nor all of them combined, could make a good title to the property contracted to be sold; in other words, that the property was settled to the separate use of the wife without the power of alienation. The court below sustained that view, and upon that ground, and that only, as shown by the recitals of the decree and the opinion filed with it, dismissed the bill.

We have no doubt whatever that Mrs. Gray, in conjunction with her husband, had full er to sell and convey the property to the purchaser. A conveyance from them would transfer a good, equitable title, and operate as an imperative direction to the trustee to hold the estate to the use of the purchaser, and convey it as such purchaser might direct and appoint. "The true theory of her [the wife's] alienation," says Lord Chancellor Westbury, in the leading case of Taylor v. Meads, 34 Law Journal (N. S.) 203, "is, that any instrument, be it deed or writing, when signed by her, operates as a direction to the trustees to convey or hold the es

gument as restrictive, they are "only the unfolding of all that is implied in a gift 'to the separate use.""

The cases decided by this court bearing on this question are too familiar to require citation or comment from the bench. For the distinction to be taken between a case like the present and Bank of Greensboro v. Chambers and others, 30 Gratt., 202, and Ropp v. Minor and others, 33 Gratt., 97, we refer to what is said in the opinion delivered a few days ago in Bain & Brother v. Buff's adm'r and others.

If, therefore, the alleged inability of the vendors to make good title had been the only objection to a decree for specific performance, we should have been of opinion that the court erred in dismissing the bill. But there was another ground of defence relied on by the purchaser. The sale was by public auction, after advertisement, written or printed, signed by the wife, her husband, and her trustee. As soon as the property was knocked down to the purchaser, the auctioneer made a memorandum in writing of the contract and signed it. Lipscomb (the purchaser) in his answer to the bill, avers that at the time of the sale, and before the auction commenced, it was announced by the auctioneer "that if any person should purchase any one of the lots [offered] he should have the right to examine the title to the same, and if he was not satisfied with the title he would not be required to take said lot and comply with the terms of the sale; that relying upon this public announcement" he made the purchase; that soon after the sale he employed counsel to examine the title; that the counsel made the examination and reported to him tha. he could not recommend to him to take the lot; and because of this advice of counsel he was unwilling and refused to complete the purchase, and insists that he cannot be compelled to do so.

These averments of the answer are clearly established by the proof. The uncontradicted testimony of the witnesses is full, distinct, and directly to the point. Assuming that the oral evidence by which these facts were established was admissible, we are of opinion that Lipscomb cannot be required against his will to complete the purchase. The public announcement by the auctioneer, the agent of the vendors, was an essential term in the offer to sell, and it was accepted as such by the purchaser. It is immaterial that this court now considers, that the vendors were and are able to make good title. This was not the question. The contract left it to the purchaser to determine for himself the matter of title. If, on examination, he was not, in good faith, satisfied with the title, he was not to be bound. The bargain was at an end. His counsel made the examination and advised against the title, and acting on that advice he declined the purchase, and the court below, in the reasons given for its decree, in effect sanctions the advice given.

In Williams v. Edwards, 2 Sim., 78, one of the terms of the agreement was that the contract should be void if the purchaser's counsel should be of opinion that a marketable title could not be made by a certain time. The counsel being of that opinion, a bill by the purchaser for a specific performance, with a compensation, was dismissed with costs. Speaking of this term of the agreement, the Vice Chancellor said: "There appears to be nothing unreasonable in that. There might be circumstances which might make it very proper for both parties to insert that term, and as it was the contract of both parties, this court cannot make a new contract

for them. The parties themselves have stipulated that, in a given event, the agreement should be void."

The written memorandum of the contract, signed by the auctioneer, does not contain the stipulation relied on as a condition, and the oral evidence adduced to establish it is excepted to on the ground that it varies the writing. We think such evidence is competent, when offered, as in the present case, by the defendant in a suit for specific performance, to show that the writing fails to express the real agreement.

The application for relief in such a suit is always addressed to the sound discretion of the court, and the contract as written will not be enforced against the will of the defendant, where he can make it appear that from accident, mistake, inadvertence, fraud, or like circumstance, it does not fairly and truly express the agreement of the parties in an essential particular; and he is allowed to show this by parol evidence. This principle would seem to apply with peculiar force, where the only written evidence of the contract is a brief memorandum made out and signed by the auctioneer in the absence of the purchaser. The omission by him to add the condition, which is an essential term of the agreement, whether such omission be attributable to design, mistake, ignorance or inadvertence on his part, should not be permitted to prejudice the rights of an innocent purchaser, especially when the discretionary power of the court is invoked by the vendor to carry the contract into execution.

Though the reasons assigned by the Hustings. Court for its decree are not approved, yet the bill for the reasons given by us, was properly dismissed, and the decree will be affirmed.

In the view taken by us, the case might have been disposed of here without considering the question raised as to the power of Mrs. Gray over her separate estate. Counsel, however, desired the opinion of the court on that question, and it seemed to us proper that it should be given. Decree affirmed.

CRIMINAL LAW-INSTRUCTIONS TO

JURY.

KENTUCKY COURT OF APPEALS.

COMMONWEAlth v. Neal and Craft.

Sept. 12, 1882.

THE horrible tragedy at Ashland, last December, which sent a shudder wherever it was known, its details and the history of the trial and conviction of the alleged perpetrators are so fresh in the public mind that a mere allusion will again bring them up in all their vividness. The murder, and the nameless crime which

Ellis, Neal and Craft are alleged to have been guilty of, was one of the most heinous and diabolical that have been committed in this state for many years. They, Neal and Craft, were both convicted upon the evidence of Neal, and the latter was then also found guilty. The counsel of the two former have, since that time been untiring in an effort to save the necks of the condemned men. The day of their execution was set, and all the preparations were made for the hanging, but at the last minute an appeal was taken and they were respited until the court of appeals could decide a point raised by the defense. What this was will be readily seen from the abstract of the opinion delivered by Judge Hines.-Kentucky Law Journal.

HINES, J.

Appellant was indicted on the charge of murder,tried,convicted and sentenced to death. The conviction appears to have been had principally upon the evidence of an accomplice and the only question we need consider,precluding no other, is whether the Court properly instructed the jury: Sections 241 and 242, of the Criminal Code, are as follows:

"A conviction can not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.

"In all cases where by law two witnesses, or one witness with corroborating circumstances, are requisite to warrant a conviction, if the requisition be not fulfilled, the Court shall instruct the jury to render a verdict of acquittal, by which instruction they are bound.

The Court properly instructed the jury as to the law of homicide in ordinary cases, but failed to instruct as to the weight that should be given to the evidence of the accomplice.

In general, where evidence is competent to go to the jury, it is their exclusive province to determine what consideration it is entitled, to

be permitted to go to the jury for their consideration as in ordinary cases, but the permission that such evidence may go to the jury is not a determination by the Court that it is credible, or that it in fact establishes the existence of corroborating circumstances, and the fact of the admission of such evidence does not add to, nor detract from, the positive declaration of our code, that no conviction shall be had upon the uncorroborated testimony of an accomplice. Before the jury can consider the evidence of an accomplice as a factor in the problem of guilt or innocence, they must first determine that the other evidence heard proves the existence of corroborative facts, for, without their existence, a conviction might be had upon the evidence of the accomplice alone. If the evidence claimed to be corroborative,does not tend, when this truth is admitted, to this end, it is the duty of the Court to exclude it and direct an acquittal; but the Court, by the admission of such evidence, does not pass upon the question as to whether it is in fact true, and does establish the existence of corroborating circumstances. ces. That would be a clear infringement of the rights of the jury, which the Court has as effectually done in its failure to instruct the jury as to the law of corroboration, for, by the failure, the jury are permitted to consider the evidence of the accomplice as they would any other evidence, and are authorized to convict on such evidence, although they may not believe the evidence offered to establish corroborating circumstances. The failure to instruct as indicated, was clearly error and an error which, under the circumstances of this case, was necessarily prejudicial to appellant. The jury should have been instructed in the language, substantially, of section 241, already quoted, and, in effect, as asked by counsel for appellant.

Judgment reversed, and cause remanded, with directions for a new trial.

EXEMPTION LAWS.

KNOLL'S APPEAL. HOLTZMAN'S APPEAL.

the extent even of disregarding it entirely. SUPREME COURT OF PENNSYLVANIA. But the sections of the criminal code quoted, appear to make an exception in the case of the testimony of an accomplice. Where there are no corroborating circumstances it is the duty of the Court to instruct the jury to acquit, thereby determining, as a matter of law, that, standing alone, the evidence given by an accomplice not entitled to any weight and shall not be considered by the jury.

If there is evidence tending to support the statements made by the accomplice, Buch evidence is competent and should

March 13, 1882.

A defendant cannot waive the benefit of the exemption law, if the result be to give a junior execution creditor a preference over a prior levy on the same property. A. issued execution and levied on defendant's personal property. Defendant claimed the benefit of the exemption law and $300 worth of property was set apart to him. B. and C. afterwards issued execution on judg ments, both containing waivers of exemption, and levied on the goods exempted from A's levy. The goods were all sold by the sheriff under the three executions the

« EelmineJätka »