Opinion
No. 35233.
June 7, 1943. Suggestion of Error Overruled June 25, 1943.
1. FORGERY.
Evidence supported conviction of uttering a forged instrument.
2. CRIMINAL LAW.
Where evidence was so overwhelming against defendant that a verdict of not guilty would have indicated bias on part of jury in favor of defendant, all errors would be harmless unless they went to extent of amounting to a denial of some constitutional right of defendant.
3. CRIMINAL LAW.
The violation of a constitutional right cannot be harmless error.
APPEAL from circuit court of Attala county, HON. JOHN F. ALLEN, Judge.
J.D. Guyton, of Kosciusko, for appellant.
The indictment charges that the defendant, F.T. McCulloch, obtained from lawful authority possession of a certain Confederate Pension warrant, dated Aug. 1, 1941, for the sum of $40, payable to J.W. Moore. This warrant is copied literally in the indictment. The indictment then charges that the defendant, having obtained possession of said warrant, did then and there unlawfully, willfully, feloniously, etc., forge and counterfeit the written signature of endorsement of the payee "J.W. Moore" on the back of said warrant. It then charges that the defendant having in his hands said warrant thus bearing the false, fraudulent, forged and counterfeited indorsement of J.W. Moore, well knowing the said indorsement thereof to be forged and counterfeited, willfully, unlawfully, feloniously, etc., with intent to cheat and defraud the State of Mississippi, did then and there utter and publish the same to the Merchants Farmers Bank of Kosciusko, Mississippi, as true, with the fraudulent intent that said warrant would be then and there paid to him in cash and transmitted to the Treasury of the State of Mississippi for payment, contrary to the statute and against the peace and dignity of the State of Mississippi.
The demurrer challenges the legal sufficiency of this indictment on the ground of duplicity, that is to say, that the indictment charges the defendant, (1) with forgery, and (2) with uttering a forgery; which crimes, under our statute, are two separate and distinct crimes and cannot be charged in one count in an indictment without violating the constitutional right of the defendant to know the nature and cause of the accusation made against him.
The order of the court overruling this demurrer recites that the District Attorney elected in open court to proceed only on the offense of uttering a forgery as charged in the indictment.
Regardless of the common law rule, and what Bishop says with regard to charging forgery and uttering a forgery in one and the same count where the same person in a continuous transaction both forged and uttered the same instrument, by virtue of our statutes "forging a writing" and "uttering a forged writing" are separate and distinct offenses. This is true even though the punishment may be the same, and both are felonies.
Burgess v. State, 81 Miss. 482, 33 So. 499; Hill v. State, 72 Miss. 527, 17 So. 375; Mississippi Constitution of 1890, Sec. 26; 31 C.J. 757, par. 320; 31 C.J. 758, par. 321.
Charging two offenses in the same count is bad practice, but the proper way to challenge this is by demurrer and not by motion to elect.
Clue v. State, 78 Miss. 661, 29 So. 516.
See also Cogsdell v. State, 183 Miss. 826, 185 So. 206.
Upon a charge of forgery of a check, before proof of other forgeries can be admitted to prove guilty knowledge, it must appear that the check described in the indictment was itself a forgery; and it must also appear that the other instruments were signed by the name of a real person, and without his authority.
Raines v. State, 81 Miss. 489, 33 So. 19; People v. Whiteman, 114 Cal. 338, 46 P. 99; People v. Bird, 124 Cal. 32, 56 P. 639; People v. Altman, 147 N.Y. 473, 42 N.E. 180; 26 C.J. 970, sec. 136; 5 Enc. of Evidence 868; Wharton's Criminal Evidence (10 Ed.), by Hilton, p. 135, sec. 35.
Previous criminal acts as part of the connected or continuous transaction on the part of the accused are admissible; but evidence of other criminal acts by accused, not immediately connected with the forgery, cannot be given.
26 C.J. 967; 62 L.R.A. 256.
See also Garner v. State, 132 Miss. 815, 96 So. 743; People v. Whiteman, supra; Costello v. Crowell, 139 Mass. 588; People v. Bird, supra; Anson v. People, 148 Ill. 494, 35 N.E. 145; 26 C.J. 967.
Circumstantial evidence is always insufficient where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth. Whenever, therefore, the evidence leaves it indifferent which of several hypothesis is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be.
Sorrells v. State, 130 Miss. 300, 94 So. 209; Hogan v. State, 127 Miss. 407, 90 So. 99; Brence v. State (Ala.), 186 So. 785.
All the evidence being circumstantial, with nothing direct, the law requires not only that the evidence cause the jury to believe him guilty beyond a reasonable doubt, but it must go further and exclude in the minds of the jury every other reasonable hypothesis than that of guilt.
Irving v. State, 100 Miss. 208, 56 So. 377; Smith v. State, 101 Miss. 283, 57 So. 913; Simmons v. State, 106 Miss. 732, 64 So. 721.
See Moore v. State, 107 Miss. 181, 65 So. 126; Griffin v. State, 96 Miss. 309, 51 So. 466; Cox v. State, 66 Miss. 14, 5 So. 618; Wilson v. State, 85 Miss. 687, 38 So. 46.
The trial court erred in giving the second instruction for the state. This instruction requires the jury to believe from the evidence beyond a reasonable doubt that the defendant is guilty, and if they so believe they should find him guilty. This is not enough in this case, because in this case the state has no direct evidence of either forgery or uttering a forgery, and its entire case is dependent entirely on circumstantial evidence. When circumstantial evidence is all the state has, as is true here, then the jury must be instructed not only to believe beyond a reasonable doubt, but must also be advised that the circumstantial proof must be so strong that every reasonable hypothesis other than guilty is excluded.
Hogan v. State, supra; Nalls v. State, 128 Miss. 277, 90 So. 892; Sorrells v. State, supra; Irving v. State, supra; Simmons v. State, supra.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, and J.P. Coleman, of Ackerman, for appellee.
We submit that the proof of the utterance of a forged instrument has been so clearly made that no impartial jury composed of men of sound judgment, duly mindful of the obligation of their oaths, would have reached any other verdict under the facts in this case.
Smith v. State (Miss.), 6 So.2d 134; Fugler v. State, 192 Miss. 775, 7 So.2d 873.
Argued orally by J.D. Guyton, for appellant, and by J.P. Coleman, for appellee.
Appellant was indicted and convicted in the circuit court of Attala County of the crime of uttering a forged instrument and sentenced to the penitentiary for a term of ten years. From that judgment he prosecutes this appeal.
The evidence in this case not only showed the guilt of the appellant beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, but went further and was so overwhelming against the appellant that a verdict of not guilty would have indicated bias on the part of the jury in favor of the appellant. In such cases all errors are harmless unless they go to the extent of amounting to a denial of some constitutional right of the defendant. There is no such contention in this case. The fundamentals of a criminal prosecution were complied with. The errors complained of, if well founded, were harmless. The violation of a constitutional right can not be harmless error. Jones v. State, 97 Miss. 269, 52 So. 791. But other errors, if harmless, are not ground for reversal. Wexler v. State, 167 Miss. 464, 142 So. 501; Calicoat v. State, 131 Miss. 169, 95 So. 318; Flowers v. State, 101 Miss. 108, 57 So. 226.
Affirmed.