Opinion
No. 31700.
April 8, 1935.
1. CRIMINAL LAW.
On motion for continuance on ground of absence of nonresident witness, accused had burden of showing that witness would probably be present at next term of court.
2. CRIMINAL LAW.
Refusal of continuance on ground of absence of nonresident witness held not error, where evidence did not show that witness would probably be present at next term of court.
3. CRIMINAL LAW.
Motion for continuance is addressed to court's discretion, and overruling of motion is not reversible unless showing is made that discretion was abused.
4. FORGERY.
Check, termed a due bill by prosecuting witness, held subject to forgery (Code 1930, section 944).
5. FORGERY.
Evidence held to sustain conviction for forgery of check (Code 1930, section 944).
APPEAL from the circuit court of Tishomingo county.
HON. THOS. H. JOHNSTON, Judge.
W.F. Hodgkin was convicted of forgery, and he appeals. Affirmed.
T.A. Clark and J.C. Jourdan, Jr., both of Iuka, for appellant.
We respectfully submit to the court that in sustaining and overruling applications for a continuance of a case that it is in the sound discretion of the court as to whether or not he shall grant a continuance but this discretion must not be abused by the court. To have continued this cause and granted the application for a continuance by appellant at the term of court at which he was indicted only four days from the time he was arraigned until he was tried would have done no harm to the State of Mississippi, but on the other hand it might or may have done a great injustice to the defendant in overruling his application for a continuance.
Cade v. State, 50 So. 554; 16 C.J. 471.
We insist that if a party signs a check in blank, leaves the amount to be filled in and a certain amount is agreed upon, but the party to whom the check is made payable should fill in a larger amount than agreed upon between the parties would not constitute forgery, but would only be a breach of trust.
12 R.C.L. 147.
Under the facts in this case the appellant could not be convicted under section 944 of the Code of 1930 under which he was tried and convicted.
Wm. H. Maynard, Assistant Attorney-General, for the state.
The court properly overruled appellant's motion for a continuance.
Applications for continuance are largely addressed to the discretion of the trial court and there is no showing in this case that there was any abuse of this discretion.
Cox v. State, 138 Miss. 370, 103 So. 129; Sanders v. State, 141 Miss. 289, 105 So. 523; Jones v. State, 152 So. 479, 168 Miss. 702; Wade v. State, 132 So. 560; Samuels v. State, 153 Miss. 381, 120 So. 920.
The appellant on his motion for a new trial did not allege that he had made any endeavors to secure the presence of the absent witness, nor did he introduce any affidavit from the witness as to what he would testify. This is fatal under the Mississippi authorities.
Coward v. State, 158 Miss. 707; Robertson v. State, 157 Miss. 642; Jordon v. State, 147 Miss. 24.
The court properly overruled appellant's motion for a peremptory instruction and the verdict of the jury was not contrary to the evidence.
Section 944, Code of 1930; Wilson v. State, 12 So. 332; 12 R.C.L., sec. 10, p. 147; 26 C.J., Forgery, sec. 14.
Argued orally by J.C. Jourdan, Jr., for appellant, and by Wm. H. Maynard, for the state.
W.F. Hodgkin was indicted for forging a check. The check was originally given for two dollars and forty cents, according to the state's witness, and the original check did not have the lines for writing filled in, but had figures, two hundred dollars and forty cents, in the margin, and the body had been subsequently filled in for two hundred forty dollars. This, the proof shows, had been changed from the original reading of two dollars and forty cents.
The instrument was set out at large in the indictment, and it was charged therein that: "He, the said W.F. Hodgkin, then and there well knowing the same to be false, forged, altered and counterfeit, with intent then and there feloniously to injure and defraud the said Jake Hodges and the Iuka Guaranty Bank and the said L.T. Gaines, contrary to the form of the statute," etc.
When the indictment was returned, and the case called for trial, the appellant filed a motion for a continuance on the ground that one James Philbon, a witness, was absent. In the affidavit it was alleged that Philbon was in Texas, having left Mississippi on July 30, 1934, before the appellant was charged with said crime, and that the absence of said witness was not caused by procurement of the appellant, and that he had used diligence to obtain the presence of said witness. That he expected to prove by said witness, if he were present in court, that he was present, at least, some of the time while the transaction was going on between appellant and Jake Hodges, the prosecutor, and saw the check in controversy, which showed that the same was a check for the amount named therein, that there were other people around there during this time when Philbon was in the office, etc. There was nothing to show that said absent witness, Philbon, would ever return to live in Mississippi, but it was shown that his family expected him home about Christmas, but there was no certainty as to this.
It was also shown that Philbon was in Texas for the purpose of working and would probably stay if the work held out.
The trial judge overruled the motion for a continuance.
There was also evidence on the motion that Philbon was not actually present when the check was signed, but was at another point at a singing on that day, it being Sunday.
The prosecuting witness showed by his testimony that he had a truck which was difficult for him to start, and the appellant proposed to secure some gas and go to the house of said witness and start the truck for him. Appellant did some little work on the mechanism of the truck, and charged the prosecuting witness seven dollars and fifty cents therefor. The prosecuting witness only had the difference between seven dollars and fifty cents and two dollars and forty cents in change, and gave the appellant that, and signed an instrument showing two dollars and forty cents due.
Hodgkin's version was that he had sold a car to Jake Hodges who was to assume two hundred eighty-five dollars due thereon to the Finance Company, and that Jake Hodges gave appellant a check for two hundred forty dollars, the balance of the purchase money.
When the check was presented to the bank for payment, the person in charge had some doubt about its being for the amount shown to be due on it, and had the appellant to receipt to the bank for the two hundred forty dollars on the back of the check. Some inquiry was made about the matter, and the appellant stated to the cashier of the bank that the check was for two hundred forty dollars, and that he had traded the prosecuting witness, Hodges, a truck shortly before that, for which he had been given a check which the cashier had paid, and stated that he had traded a car for a truck, and two hundred forty dollars was the difference between the car and the truck.
We think the motion for a continuance was insufficient to show, taken in connection with the testimony, that there was any probability that the absent witness would return to Mississippi and be present at the next term of court. It devolved upon the movant, where the witness was shown to be a nonresident, to show, by evidence, that he would probably be present at the next term of court, and the testimony here is insufficient to show such probability. Motions for continuances are addressed to the sound discretion of the court, and, unless there is a showing that this discretion has been abused, this court will not reverse for the overruling of a motion for continuance. Cox v. State, 138 Miss. 370, 103 So. 129; Sanders v. State, 141 Miss. 289, 105 So. 523, and Jones v. State, 168 Miss. 702, 152 So. 479.
There was also a question raised as to whether a peremptory instruction should not have been given, based on the theory that the instrument delivered by the prosecuting witness, which he termed a due bill, was not subject to forgery.
We think this case falls within section 944, Code 1930, reading as follows: "Every person who, with the intent to injure or defraud, shall falsely make, alter, forge, or counterfeit any instrument or writing being or purporting to be any process issued by any competent court, magistrate, or officer, or being or purporting to be any pleading or proceeding filed or entered in any court of law or equity, or being or purporting to be any certificate, order, or allowance, by any competent court, board, or officer, or being or purporting to be any license or authority authorized by any statute, or any instrument or writing being or purporting to be the act of another, by which any pecuniary demand or obligation shall be or purport to be created, increased, discharged, or diminished, or by which any right or property whatever shall be or purport to be transferred, conveyed, discharged, diminished, or in any manner affected, by which false making, forging, altering or counterfeiting any person may be affected, bound, or in any way injured in his person or property, shall be guilty of forgery."
On the record in this case, there was ample testimony to sustain the conviction, and we find no reversible error in the record. The judgment of the court below will, therefore, be affirmed.
Affirmed.