State v. Thomas , 29 Del. 195 ( 1916 )

Rice, J.:

The question before the court is the admission of the record of the former trial of, and acquittal of, the accused in the present prosecution, on a charge for forgery at the last term of this court.

[1, 2] We do not think the record is admissible to show former jeopardy in bar of the present prosecution in the absence of a special plea setting up such a defense, as the record does not disclose on its face that the former acquittal relied upon was in the same prosecution now before the court. Nor do we think the record is admissible in support of the motion to strike out the evidence respecting Exhibit No. 2, introduced by the state against the objection of counsel for the accused.

Rice, J.,

charging the jury:

In this indictment Frank H. Thomas, the accused, is charged with the offenses of feloniously and fraudulently maldng, forging and counterfeiting. a check, and of publishing and uttering the same knowing it to be forged.

[3] Forgery is defined to be the fraudulent making or altering of a writing to the prejudice of another man’s rights.

[4] In this case the claim of the state briefly is that Frank H. Thomas, the accused, without authority, did fraudulently make out a check payable to the order of Frank George, for the amount of one hundred and eight dollars and thirteen cents, the same having been signed in blank, by Pennell Emerson, treasurer. The state does not claim, and it is not necessary for it to prove that Frank H. Thomas, the accused, signed Pennell Emerson’s name to the check. The state also claims that Frank H. Thomas, the accused, aid utter and publish a forged check, knowing it to be forged.

The accused admits that he filled out the check in question but denies that he acted fraudulently in doing so and contends that he had full and proper authority of Pennell Emerson, the treasurer of the Wyoming Fruit Growers’ Association, to make out the check payable to the person and for the amount it was made out. He does not dispute the fact that he gave the check as made out to the payee named therein.

[5] One of the questions necessary for you to determine in considering the present case is whether or not Frank H. Thomas, the accused, had or honestly and in good faith believed he had authority to make the check payable to the person and for the amount it was made out. For if he did have such authority, or honestly and in good faith believed that he had such authority, his intent would not have been a fraudulent one and he could not be found guilty of the crime with which he is charged.

[6] The fraudulent intent inspiring or accompanying the act is one of the essential elements of the crime of forgery, and it must be both alleged and proved by the state.

[7, 8] The intent with which an act is done may be proved by indirect as well as by direct evidence. Indirect evidence is the proof of acts or conduct of the accused as well as other circumstances incident to the transaction, from which the intent can reasonably and naturally be inferred.

'If you should believe that at the time Frank H. Thomas, the accused, was employed by the Wyoming Fruit Growers’ Association, it was agreed by him that he should not handle any of the funds of the association, yet if you should believe that Pennell Emerson, the treasurer of the association, did afterwards direct or authorize the accused to fill in the check in question and deliver it to Frank George, and if you should believe that the accused did in good faith believe that he had authority to fill in the check, your verdict should be not guilty.

[9] If on, the other hand you should believe that Frank H. Thomas, the accused, had no authority to fill in the check in question and that he did so fraudulently with the intent to defraud, either Pennell Emerson, treasurer, or the Wyoming Fruit Growers’ Association as charged in the indictment, your verdict should be guilty, or if you should find that the accused uttered and published a forged check with knowledge that it was forged, as alleged in the indictment, your verdict should be guilty; but if you should believe in the first place that the check was not forged, you cannot find the accused guilty of uttering and publishing a forged check as charged in the indictment.

Verdict, not guilty.