Bell v. State

Grason, J., delivered the opinion of the Court. The appellant was indicted in the Criminal Court of Baltimore, and the case was removed to the Circuit Court for Howard County, for trial. The indictment contains four counts ; the first charging the appellant with forging a check with intent to defraud ; the second with uttering it with intent to defraud; the third with forging it with intent to defraud the Merchants’ National Bank, and the fourth with uttering it with intent to defraud the Merchants’ National Bank. The appellant pleaded not guilty, and the jury having found a verdict of guilty, he took this appeal for tlie purpose of having the rulings of ¹¹³ tlio Court below, set out in the two exceptions taken by him, reviewed by this Court.

The State proved by Thomas H. Morris, the paying teller of the bank, that, shortly after three o’clock on the 16th day of July, 1880, a man, who the witness testified was the appellant, entered the bank and presented at the desk of the paying teller, where witness was standing, the check described in the indictment, and said, “ I am a little late;” to which witness replied “yes, you are late;” and the person then said, “I have sold some bonds to Mr. Fisher, and I would be obliged if you would accommodate me by giving me large money for the check as 1 have some money to pay up street; ” that witness replied that he had no large money, and then paid him the amount of the check from money in the drawer, consisting principally of ten dollar notes. The State then offered to prove by the same witness, that, on the following day, the 17th day of July, the same party came to the hank in the morning, during banking hours, and presented another check, similar, except in its amount, to that which had been presented by him and paid the previous day, and remarked, “I am not late to-day;” to which witness replied, “ no, you are.not late to-day.” The party then stated that ho had sold some more bonds to Mr. Fisher, and again made the request that he might be paid in large money ; £,nd the witness went to the vault, obtained large notes and paid the amount of the check. The State then offered to prove that this second check, as also that which was presented and paid the day previously, was a forgery. The appellant, by his counsel, objected to the admissibility of the conversation, and everything connected with the presentation and payment of the second check and the proof that it was forged, because the appellant had been indicted and tried before a jury and acquitted in the Criminal Court of Baltimore, for forging and Tittering said check; contending, in support of ¹¹⁴ said objection, that his acquittal was conclusive of the fact either that the check was not forged, or that' the appellant was not the party who presented it for payment and obtained the money thereon, and that the State wasestopped by that acquittal from showing the facts then offered to be proved in this case; and, in support of his-objection, he offered to prove to the Court, by oral evidence, that upon the said trial in the Criminal Court, the witness, Morris, testified that the appellant was the person who presented the second check for payment, and had identified him as such person, and that the whole case was tried and argued to the jury upon the question of identification as then proved by this witness, and that upon such trial and argument the jury in that case rendered a verdict of acquittal.

But the Court refused to hear the oral evidence thus tendered by the appellant, overruled his objection to the evidence offered by the State, and permitted it to be given to the jury, and this ruling, is the ground of the first exception. The proof, as offered by the State was clearly admissible. If it can be shown that a party indicted for uttering forged paper upon a bank, has, within a short period of time passed other forged paper on the same bank, it is plain that such repeated utterings show a plan to defraud the bank, and in such case each uttering is admissible, in evidence, as tending to prove the intent with which each uttering is committed. Whart.

Cr. Ev., see. 43 ; Queen vs. Francis, 12 Cox’s C. C., 612. It is not often possible to prove by positive and direct evidence that a party who utters a forged paper, has a knowledge that it is forged. When it has been proved that the party charged has done the act for which he is indicted, the question still remains, whether he committed' it with guilty knowledge or whether he acted under a mistake; and evidence which tends to prove that he was pursuing a course of similar acts, raises a presumption that he was not acting under ¹¹⁵ a mistake, but witli a guilty knowledge and intent, and is admissible for that purpose.

Roscoe’s Cr. Ev., 7th Amer. Ed., 93; Queen vs. Francis, 2 Cox’s Cr. Reps., 131, 132; Whileys and Haines’ Case, 2 Leach, 985 ; Bishop and Helm vs. State, 55 Md.; Bloomer vs. State, 48 Md., 529 .

Innumerable cases might be cited to the same point but those to which we have referred are sufficient. Such evidence is admissible notwithstanding the party may have been indicted for such other acts. 1 Whart. Cr. Law, (8th Ed.,) sec. 715 ; State vs. Williams, 2 Richardson, 418 ; State vs. McAllister, 24 Maine, 139; Commonwealth vs. Perceval, Thacher’s Cr.

Cases, 293; Commonwealth vs. Price, 10 Gray, 476 ; Hendrick vs. Commonwealth, 5 Leigh., 707 ; Rex vs. Smith, 4 Car. & Payne, 411. The record does not show that any record of the case was offered by the appellant for the purpose of proving that he had been tried and acquitted of the charge of having passed the check on the 17th July, 1880. The only legal proof of his acquittal would have been a record of the proceedings in the case from the Criminal Court of Baltimore. This bill of exception does not disclose the fact that any record from the Criminal Court of such acquittal had been offered in evidence at the time this exception was taken.

The objection to the proof offered by the State was therefore properly overruled. Mackey vs. Easton, 19 Wollace, 632 ; Davisson vs. Gardiner, 10 N. J. Law, 289 ”, Thelluson vs. Sheeden, 5 Bos. & Pul., 228 ; Lessee of James vs. Stocky, 1 Wash. C. C. R., 332. The question of the admissibility of this evidence arises upon the first exception, which cannot refer to or make any subsequent bill of exceptions a part of it, and, therefore the Court cannot look at any other bill of exceptions for the purpose of supplying facts not contained in the first.

Walsh vs. Gilmor, 3 H. & J., 409, 410 . On the state of the case as contained in the first exception, the Court below was clearly right in overruling the appellant’s objection to the evidence offered by ¹¹⁶ the State. The only ruling made by the Court below in this exception, within the meaning, of the Act of 1872, ch. 316, sec. 2, was the overruling of the objection which was made by the appellant to the proof offered by the State. What are termed in the exception as the “ other rulings,” are nothing more than a statement of the reasons of the Court for mating the ruling it did make, and an intimation of what its ruling would be with respect to the effect and bearing of the record of the appellant’s trial and acquittal in the Criminal Court when it should be thereafter offered in evidence.

Such reasons and intimations formed no part of the ruling of the Court, and cannot be made the subject of exception, and are not the subject of review in this Court. But even if the appellant .had, in fact, offered in evidence the record of the appellant’s acquittal, and had proved that the appellant was the same party who had been so acquitted, we cannot perceive that the Court below committed any error in overruling the objection," and admitting the evidence offered by the State. An acquittal of a party does not ascertain or determine any precise facts. It may have resulted from an insufficiency of evidence as to some particular fact, where several facts are necessary ingredients of the crime. 2 Coweris Fhill.Ev., (4th Amer.

Ed.,) 55, 56; Foscoe’s Or. Ev., 14ih Ed., ,194. Such an acquittal upon an indictment for uttering a forged check, would not necessarily . negative the fact that the check was forged, if in fact it.;was forged; nor the possession by the party of the forged paper, for the uttering of which he was indicted; nor that be. uttered the forged paper for value. All these facts may have been found to he true, and yet the pariy may have been acquitted because of the absence of proof of such facts and circumstances, as were necessary to show that the accused uttered the forged paper with intent to defraud.

The verdict of acquittal may have resulted from the