{ "id": 1536276, "name": "Quertermous v. State", "name_abbreviation": "Quertermous v. State", "decision_date": "1914-09-28", "docket_number": "", "first_page": "452", "last_page": "464", "citations": [ { "type": "official", "cite": "114 Ark. 452" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "88 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "100 Ark. 199", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312254 ], "weight": 2, "pin_cites": [ { "page": "321" } ], "opinion_index": -1, "case_paths": [ "/ark/100/0199-01" ] }, { "cite": "36 Ark. 141", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "68 Mich. 454", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1323962 ], "opinion_index": -1, "case_paths": [ "/mich/68/0454-01" ] }, { "cite": "29 Mich. 31", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1936707 ], "opinion_index": -1, "case_paths": [ "/mich/29/0031-01" ] }, { "cite": "11 S. W. 575", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "108 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342278 ], "weight": 2, "pin_cites": [ { "page": "601" } ], "opinion_index": -1, "case_paths": [ "/ark/108/0594-01" ] }, { "cite": "109 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341213 ], "weight": 2, "pin_cites": [ { "page": "135" } ], "opinion_index": -1, "case_paths": [ "/ark/109/0130-01" ] }, { "cite": "109 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341201 ], "opinion_index": -1, "case_paths": [ "/ark/109/0193-01" ] }, { "cite": "40 Ark. 454", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897105 ], "opinion_index": -1, "case_paths": [ "/ark/40/0454-01" ] }, { "cite": "44 Ark. 115", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893427 ], "opinion_index": -1, "case_paths": [ "/ark/44/0115-01" ] }, { "cite": "76 Ark. 487", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1500964 ], "opinion_index": -1, "case_paths": [ "/ark/76/0487-01" ] }, { "cite": "57 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1324615 ], "opinion_index": -1, "case_paths": [ "/ark/57/0001-01" ] }, { "cite": "59 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327706 ], "opinion_index": -1, "case_paths": [ "/ark/59/0050-01" ] }, { "cite": "53 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911678 ], "opinion_index": -1, "case_paths": [ "/ark/53/0387-01" ] }, { "cite": "100 Ark. 321", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312211 ], "opinion_index": -1, "case_paths": [ "/ark/100/0321-01" ] }, { "cite": "76 Ark. 110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501056 ], "opinion_index": -1, "case_paths": [ "/ark/76/0110-01" ] }, { "cite": "107 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344042 ], "opinion_index": -1, "case_paths": [ "/ark/107/0469-01" ] }, { "cite": "58 S. E. 621", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "29 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882891 ], "opinion_index": -1, "case_paths": [ "/ark/29/0238-01" ] }, { "cite": "96 Ark. 101", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541937 ], "opinion_index": -1, "case_paths": [ "/ark/96/0101-01" ] }, { "cite": "77 Ark. 537", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1499191 ], "opinion_index": -1, "case_paths": [ "/ark/77/0537-01" ] }, { "cite": "103 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351975 ], "opinion_index": 0, "case_paths": [ "/ark/103/0201-01" ] }, { "cite": "101 Ark. 555", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1310996 ], "opinion_index": 0, "case_paths": [ "/ark/101/0555-01" ] }, { "cite": "7 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727301 ], "opinion_index": 0, "case_paths": [ "/ark/7/0256-01" ] }, { "cite": "128 U. S. 383", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3533507 ], "opinion_index": 0, "case_paths": [ "/us/128/0383-01" ] }, { "cite": "76 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1500992 ], "opinion_index": 0, "case_paths": [ "/ark/76/0400-01" ] }, { "cite": "43 Ark. 391", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894549 ], "opinion_index": 0, "case_paths": [ "/ark/43/0391-01" ] }, { "cite": "95 Ark. 428", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543460 ], "opinion_index": 0, "case_paths": [ "/ark/95/0428-01" ] }, { "cite": "45 Ark. 165", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892059 ], "opinion_index": 0, "case_paths": [ "/ark/45/0165-01" ] }, { "cite": "38 Ark. 231", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "57 Mo. 205", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8851725 ], "opinion_index": 0, "case_paths": [ "/mo/57/0205-01" ] }, { "cite": "77 Ark. 537", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1499191 ], "opinion_index": 0, "case_paths": [ "/ark/77/0537-01" ] } ], "analysis": { "cardinality": 901, "char_count": 26014, "ocr_confidence": 0.481, "pagerank": { "raw": 9.417264699577801e-08, "percentile": 0.5163748928991613 }, "sha256": "0ca620245a17fe9da5c36fbc52312cd9154463d29076b78a5fecdd272e9e941b", "simhash": "1:b6a1ab2127545922", "word_count": 4514 }, "last_updated": "2023-07-14T15:18:07.178961+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Quertermous v. State." ], "opinions": [ { "text": "McCulloch, C. J.\nThe charge in this case against appellant is forgery, in altering the indorsement of an administrator on a claim presented against the estate so as to show an allowance of the claim 'by the administrator, whereas the indorsement signed by the administrator was a disallowance of the claim. The indictment sets forth in hec verba the true indorsement signed by the administrator showing that the claim was \u201cnot allowed,\u201d and also the altered indorsement showing that the word \u201cnot\u201d had been erased. The claim itself is not set forth in the indictment, but is described as \u201cClaim No. 5, A. B. Quertermous v. The Estate of G. W. Fraser, deceased, Arthur Fowler, Administrator, said claim being for $299.25.\u201d\nThe evidence adduced by the State was sufficient to prove that the administrator refused to allow the claim and. made his indorsement thereon accordingly, showing that is was \u201cnot allowed;\u201d that the claim as thus indorsed was delivered by the administrator to appellant, who carried it to the office of the probate court clerk and filed it, and that when filed by appellant the word \u201cnot\u201d was erased so as to show the allowance of the claim.\nThere was a demurrer to the indictment, and it is now insisted that the indictment was insufficient because the claim, which bore the indorsement of the administrator, was not set out in the indictment.\nThe law is well settled that the instrument alleged to have been forged must be set out in the indictment; the object of the rule being not only to put the defendant upon notice as to the nature of the instrument he is charged with forging, but also that the court may be able to determine upon the face of the indictment whether the instrument is a writing that can be forged. Cross-land v. State, 77 Ark. 537. Now, the indictment in this case sets forth fully the indorsement which is alleged to have been altered. Even if the indorsement be treated as a part of the claim, yet the material part of the instrument, so far as concerns the forgery, is the indorsement ; and it is sufficient if that be set forth in the indictment, together with such a description of the claim as is sufficient to show its materiality and to apprise the accused of the nature of the charge against him. The indictment in this case describes the claim with sufficient particularity to put the accused on notice and to show the nature of the claim. The particular form of the claim is immaterial for the reason that the accused is not charged with altering it in any manner.\nIn the case of State v. Maupin, 57 Mo. 205, the charge in the indictment was that the defendant had forged a judge\u2019s certificate to a fee bill, and the indictment set forth, in extenso, the certificate, but not the fee bill. On demurrer the indictment was held to be sufficient.\nIt is also urged that the indictment in this case charges that appellant forged the claim, but we are of the opinion that when the whole instrument is read togetlier it is made very clear that the charge only involved the forgery, by alteration, of the indorsement.\nThe statute under which the indictment was preferred reads as follows: \u201cIf any person shall forge or counterfeit any writing whatever, whereby fraudulently to -obtain the possession or to deprive another of any money or property, or cause him to be injured in his estate or lawful rights, or if he shall utter and publish such instrument, knowing it to be forged and counterfeited, he shall, on conviction, be confined in the penitentiary not less than two nor more than ten years.\u201d Kirby\u2019s Dig., \u00a7 1714.\nIt will be seen that the statute is very broad and makes it an offense to forge any writing whatever to \u00a1deprive another of money or property \u201cor to cause him to be injured in his estate or lawful rights.\u201d The statute governing the duties of administrators and executors, and of probate courts, with respect to claims against estates, provides that the executor or administrator, if satisfied that an exhibited claim is just, shall indorse thereon his approval and allowance of the same and shall 'keep a list of the demands and make return thereof to the probate court at least once every year. The statute also makes it the duty of the court to examine the claim, whether allowed by the administrator or not, to determine its validity.\nIt is argued that 'the alleged alteration is immaterial for the reason that is did not -affect the force or validity of the claim inasmuch as it had to be allowed by the court. We think that contention is unsound for the reason that the procedure is different where the claim is allowed by the administrator from what it is in case the claim is disallowed. The proceedings cease to be adversary when the administrator or executor allows the claim, though it is the duty of the court to examine the same before allowing and. classifying it. The statute does not contemplate a regular trial on a claim which has been allowed by the administrator, but a mere examination by the court to such an extent as to enable the court to determine whether the claim appears to be a just one. Therefore an alteration of the indorsement of disallowance changes the status of the claim and thus deprives the estate of -a lawful right within the meaning of the statute. The indorsement of an executor or administrator, showing his allowance, has at least persuasive force with the court in passing upon its validity, and a change in the indorsement necessarily affects the rights of the estate, which, under the statute, are to be safeguarded both by the executor or administrator and by the probate court. Our conclusion, therefore, is that the writing alleged to have been forged was of such a character as falls within the terms of the statute.\nAppellant moved for a continuance of the case on account of the absence of an important witness, one W. H. Bradford, who was out of the jurisdiction of the court. Appellant\u2019s counsel caused a subpoena to be issued directed to the sheriff of Arkansas County, commanding Mm to summons Bradford and numerous other witnesses. The sheriff\u2019s return indorsed upon the writ showed the service on all the witnesses, but it was .shown by the deputy sheriff who served the writ that Bradford was not in fact served, and that the return indorsed on the writ by the sheriff was erroneous in that respect. It was also shown that Bradford had moved away from Arkansas County about two years before the trial and had been in Mississippi with Ms family for a considerable length of time. Appellant made no showing that he was misled by the return of the sheriff or that he was not advised that the witness Bradford was absent from the State. Under the circumstances, we are of the opinion that the court did not abuse its discretion in refusing to postpone the trial.\nThe bill of exceptions recites that the testimony of the deputy sheriff was introduced before 'the jury at the commencement of the trial, and not before the court on the hearing of the motion for continuance. It is evident, however, that the testimony was introduced merely for the purpose of showing that the absent witness had not been served and was beyond the jurisdiction of the court and that bis absence afforded no grounds for postponing the trial. It had no bearing whatever on the issues involved in the trial and should not have been admitted before the jury. Appellant insists that this constituted error which calls for a reversal of the judgment, but we are unable to discover possibility of a prejudicial effect from that testimony. The motion for continuance was not read nor referred to in the presence of the jury, and the testimony of the officer had no tendency to contradict .appellant nor to discredit him in any way, so it is difficult to see how his rights were prejudiced by the jury being permitted to hear it. The court held in Burris v. State, 38 Ark. 231, and Polk v. State, 45 Ark. 165, that it constituted error to permit the State, in a criminal prosecution, to read to the jury the defendant\u2019s affidavit for a continuance and then prove that the statements in it were false. That was not done, however, in the present case.\nError is also assigned on account of the court\u2019s refusal to postpone the trial long enough to enable appellant to procure witnesses to rebut the testimony adduced by the State attacking his character for truth and morality. There is nothing in the bill of exceptions to support this assignment but an affidavit of by-standers was filed showing that at the close of the trial the attorney asked the court to adjourn the case over and give him an opportunity to procure witnesses. It is well settled, by repeated decisions of this court, that before the certificate of by-standers can avail, it must appear that the exception has been presented to the trial judge in the bill of exceptions and refused. There appears in the bill of exceptions in this case, an erased statement to the effect that \u201cthe court inquired if there were any more witnesses to be introduced and defendant asked for more time in--which to procure witnesses to bolster his character, which was denied by the court, and defendant asked that his exceptions be noted of record, which was done.\u2019,\u2019 There are lines drawn through -this statement showing that it was excluded, but it does not appear who did this, whether the judge or some one else before the bill of exceptions was presented for signature. The certificate of the judge is to the effect that the bill of exceptions signed and filed is the one presented by the appellant, and we must assume from this certificate that the judge made no corrections in it. The proper practice is to show .by indorsement of the trial judge that the exception was presented to him and refused, and this admits the certificate .of the by-standers. It may be added, however, that the exception, even if shown as certified by the by-standers, is not sufficient to show that there was an abuse of the court\u2019s discretion in refusing to postpone the trial for the further introduction of evidence; for it does not appear that the circumstances were such that appellant could not have anticipated that the State would attack his character for truth or morality when he took the witness stand in, his own behalf.\nThe bill of exceptions \u201eis also insufficient to bring up for review the assignment with respect to alleged exposure of the jury to improper influences. There are two affidavits certified by the clerk as being filed with the motion for new trial, showing that certain jurors, during the progress of the trial, were exposed to influences of citizens who were antagonistic to the defendant and expressed desire for his conviction. The bill of exceptions is entirely silent about there being any affidavits or proof concerning the alleged misconduct. \u2019 In fact, the bill of exceptions contains no reference to the motion for new trial or the affidavits in support thereof. The court held, in Ferguson v. State, 95 Ark. 428, that it is the duty of the trial judge to examine and consider affidavits filed with the motion for new trial, showing misconduct of the jury, whether the same be actually read to him or not. But in that case the affidavits were identified in the bill of exceptions. Here there is nothing in the bill of exceptions to identify the affidavits, or any other proof in support of the allegations in the motion for new trial. Therefore, we have nothing to guide us in determining what was before the-court when that assignment was considered. The jurors were, by an order of the court, allowed to separate, and the burden was therefore upon appellant to show that they.were subjected to improper influences. In order to impeach the verdict, therefore, the appellant must support his attack by affidavits properly certified in the bill of exceptions. We can not permit the judgment to be overturned merely by an affidavit in the record which is not certified in the bill of exceptions as having been brought before the court and containing all the evidence adduced on that subject.\nThe statute provides that motion for new trial on grounds of misconduct of the jury \u201cmust be sustained by affidavits showing their truth, and may be controverted by affidavits.\u201d Kirby\u2019s Digest, section 6219. The rule of practice established by decisions of this court is that neither motions for new trial nor exceptions to the order of the court overruling them need be set forth in the bill of exceptions if they otherwise constitute a part of the record. Johnson v. State, 43 Ark. 391; Carpenter v. Dressier, 76 Ark. 400. But it does hot follow that affidavits or other evidence adduced in support of the motion for new trial become a part of the record merely by exhibiting same with the motion. They must be incorporated in the bill of exceptions. Mr. Elliott, in his Treatise on Appellate Procedure ('Section 815), lays down the proper rule as follows: \u201cRecitals of fact in direct motions or appended exhibits do not go into the record as part of the motion. Such recitals and exhibits can only be brought into the record by a bill of exceptions. The* motion itself may be in the record without a bill, and yet its statements of fact or exhibits would not be a part of the record. Thus matters of evidence, affidavits, or instructions can not be made part of the record by embody-* ing them in the motion.\u201d And the same rule is stated, with numerous authorities in support of it, in an encyclopedia, as follows: \u201cAs a general rule, affidavits are not part of the record proper, whether such affidavits are used in support of a motion for new trial, for a continuance, for a change of venue, to set aside or vacate a default, to 'Sustain or dissolve an injunction, to -set aside or open a judgment, or whether they are used on the hearing of an application for an injunction.\u201d 2 Encyc. of Law, p. 1064.\nThe precise point was decided by the Supreme Court of the United States in the case of Stewart v. Wyoming Ranch Co., 128 U. S. 383, where the statement was made in the opinion that \u201caffidavits filed in support of a motion for new trial are no part of the record on error unless made so by bill of exceptions.\u201d This court at an early date held that an affidavit for continuance formed no part of the record unless brought up by bill of exceptions. Phillips v. Reardon, 7 Ark. 256. And the same doctrine has been announced by this court in more recent cases. In several cases we have held that while pleadings and exhibits thereto constitute parts of the record for the purpose of deciding upon the question of their sufficiency as pleadings without being incorporated in the bill of exceptions, it is necessary to incorporate such exhibits in the bill of exceptions before they can be considered, as evidence in the case. International Order of Twelve v. Jackson, 101 Ark. 555; National Annuity Association v. McCall, 103 Ark. 201. The assignment is therfore unavailing.\nAppellant assigns error in a remark made by the court in passing upon !an objection in the eross-examination of the administrator, who testified positively that he refused to allow the claim and his indorsement stated that the claim was not allowed, but that the same had been changed by erasure of the word \u201cnot.\u201d He was cross-examined at length'by appellant\u2019\u00a9 counsel, and was finally asked to state what else was on the page besides the word \u201cnot;\u201d and the prosecuting attorney objected to the line of examination on the ground, as he stated, \u201cit is not expected for a man to remember every word that is on a page.\u201d Counsel for appellant insisted on an answer to the question, and the court permitted him to ask the question, with this remark: \u201cHe.may answer the question if he can, but a man would have a remarkable memory to remember every word on a page.\u201d It is insisted that this was improper expression of the court\u2019s opinion as to the credibility of the witness. We do not, however, think so, for the remark was made merely in the court\u2019s ruling, without any intention, manifestly, to express an opinion to the jury. It shows that the court, with some reluctance, allowed the question to be asked. The matter of cross-examination is to some extent within the discretion of the court, as to how far it may proceed, and it certainly would not be an abuse of discretion to refuse to permit a witness to be interrogated concerning his recollection of every word on a written or typewritten page. It is a matter of common knowledge that few persons have memories sufficiently cultivated to remember every word on a page unless he had carefully committed it to memory for some purpose. We understand this remark of the court merely to indicate his reluctance to allow such .a cross-examination to proceed any further on account of the improbability of the witness remembering every word on the page. At any rate, we do not think there is anything in the remark that was probably prejudicial to appellant\u2019s rights.\nThere are several other assignments of error, which are not, we think, of sufficient importance to call for a discussion. Upon consideration of the whole record, we are convinced that there was no prejudicial error committed in the trial of this case.\nThe evidence adduced by appellant tended to show that his claim was a just one, and that he did not alter the indorsement, but that the claim was allowed by the administrator and promptly paid by the latter as soon as it was allowed and classified by the court. There are circumstances which tend to corroborate the appellant, but the testimony adduced by the State was sufficient to warrant a finding that appellant altered the indorsement for the purpose of influencing the court in passing upon the validity of the claim. The fact that it was a just claim, or, rather, that the invalidity of it had not been established by evidence, does not affect the question of appellant\u2019s guilt of the crime of forgery. Nor is the case affected by the fact that the administrator paid the claim without appealing to the circuit court, except that it might have affected the credibility of the administrator\u2019s testimony before the jury.\nJudgment affirmed.", "type": "majority", "author": "McCulloch, C. J." } ], "attorneys": [ "J. M. Brice, for appellant.", "Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee." ], "corrections": "", "head_matter": "Quertermous v. State.\nOpinion delivered September 28, 1914.\n1. Forgery \u2014 indictment-\u2014allegations.\u2014In. a prosecution for forgery, the instrument alleged to have been forged must be set out in the indictment.\n\u00a12. Forgery \u2014 indictment\u2014allegations.\u2014W h e r\u00a1 e defendant was charged with forgery by altering the writing made by an administrator, on a claim presented to him, the indictment will be held sufficient, when it sets out the material parts of the instrument, so far as it concerns the forgery.\n3. Forgery \u2014 alteration of claim on administrator. \u2014 Defendant presented for allowance to the administrator of an estate, a claim. The administrator wrote -thereon \u201cnot allowed.\u201d Defendant erased the word \u201cnot\u201d and filed the claim. Held, the evidence was sufficient to support an indictment charging forgery.\n4. Forgery \u2014 administration\u2014altering indorsement of disallowance. \u2014 The alteration of the indorsement of disallowance on a claim filed with an administrator, is sufficient to support a charge of forgery.\n5. Continuances \u2014 showing\u2014discretion of the court.- \u2014 A trial court will not be held to have abused its discretion in refusing to grant a continuance on account of the absence of a witness, .where the sheriff\u2019s return showed the witness to have been served with notice, . which had not in fact been done; when the appellant made no showing that he was mislead by the return of the sheriff, or that he was not advised that -the witness was absent from the State.\n6. Continuances \u2014 taking testimony before the jury. \u2014 In a criminal trial where defendant\u2019s motion for a- continuance was not read .to the jury, the introduction of testimony on the point before the jury, having no bearing on the issues in the case, while erroneous, held not prejudicial.\n7. Trial \u2014 exceptions\u2014certificate of by-standers. \u2014 Before a certificate of by-standers can avail, it must appear from the record that the exception had been presented to the trial judge in the bill of exceptions, and refused.\n8. Continuances \u2014 discretion of court. \u2014 Appellant in a criminal trial asked a postponement to enable him to procure witnesses to rebut testimony of his bad character, offered by the State; held, where it does not appear that the circumstances were such that appellant could not have anticipated that the State would attack his character for truth and morality, 'the court will not be held to have abused its discretion in refusing a postponement.\n9. Appeal and 'error \u2014 bill of exceptions \u2014 affidavits\u2014motion for new trial. \u2014 A cause will not be reversed on the ground that the jury was subjected to improper influences, upon affidavits wbicb appear in tbe record, but which are not properly certified in tbe bill of exceptions.\n10. Motion fob new trial \u2014 affidavits\u2014bill of exceptions. \u2014 Affidavits or other evidence adduced in support of a motion for a new trial become a part of tbe record only by being incorporated in the bill of exceptions.\n11. Appeal and error \u2014 affidavits\u2014bill of exceptions. \u2014 Affidavits filed in support of motion for new trial are no part of tbe record on error, unless made so by bill of exceptions.\n12. Evidence \u2014 cross-examination\u2014discretion of court \u2014 remarks of court. \u2014 -The court may to some extent limit tbe cross-examination, and when a witness was asked to state all that was on a certain page of a document, and over objection tbe court permitted the question to be asked, with tbe remark witness would have a remarkable memory to remember every word on a page, tbe remark of the court will not be held prejudicial as being an expression of tbe court\u2019s opinion as to the credibility of tbe witness.\n13. Forgery \u2014 character of document forged. \u2014 Defendant was charged with the crime of forgery by altering tbe notation in a claim presented to an administrator by erasing tbe word \u201cnot\u201d in tbe phrase \u201cnot allowed.\u201d Held, a verdict of guilty will be sustained when it appears that defendant did make tbe alteration, although tbe administrator later paid tbe claim, without an appeal to tbe court.\nAppeal from. Arkansas Circuit Court, Northern District; Eugene Lanlcford, Judge;\naffirmed.\nJ. M. Brice, for appellant.\n1. Appellant had the right to rely upon the sheriff\u2019s return as true, and since he did not discover the error until immediately before the trial, too late to procure either the attendance or the deposition of the absent witness, and since the testimony of Bradford was of the utmost importance to appellant, it was a manifest abuse of discretion to deny appellant\u2019s motion for a continuance.\n2. The indictment is fatally defective in that it does not set out the claim. 77 Ark. 537; 96 Ark. 101; 17 Am. & Eng. Ann. Cases, 496.\n. 3. A probate court is presumed to pass upon claims against estates of deceased persons upon their merits. The forgery of an endorsement to a claim does not constitute forgery within the meaning of the criminal statute. Kirby\u2019s Dig., \u00a7 \u00a7 125,130; 19 Cyc. 1380,1381.\nWhen the administrator signed the indorsement alleged to have been forged, he waived service of notice of the filing of the claim, and such waiver was tantamount to a rejection of the claim and referred it to the probate court for action. 29 Ark. 238; Kirby\u2019s Dig., \u00a7 123. See also, 9 Am. & Eng. Ann. Cases, 1110; 58 S. E. 621.\n1. When appellant\u2019s counsel on examination of the administrator, Fowler, sought to test his memory and credibility after he had stated that he had read and remembered all on the page of the claim where his indorsement appears, it was error on the part of the court, in response to the State\u2019s objection, to remark, \u201che may answer that question, but a man would have a remarkable memory to remember every word on a page.\u201d This was an expression of opinion on the part of the court unfavorable to appellant and necessarily prejudicial. 107 Ark. 469; 76 Ark. 110.\n5. The State, in seeking to impeach appellant, was permitted to ask various witnesses if they were acquainted with his reputation \u201cfor truth and honesty\u201d and \u201cfor truth and veracity.\u201d This was error. The statute must be strictly followed in impeaching a witness. Kirby\u2019s Dig., \u00a7 3138; 100 Ark. 321; 53 Ark. 387; 59 Ark. 50.\n6. Where the proof shows that the jiiry were permitted to separate without the defendant\u2019s consent, and that they were exposed to improper influences, the burden is on the State to prove that they were not so exposed, or if so that they were not influenced thereby. 57 Ark. 1; 76 Ark. 487; 44 Ark. 115; 40 Ark. 454; 109 Ark. 193.\nWm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.\n1. On the facts the evidence is sufficient to sustain the verdict. 109 Ark. 130; Id. 135.\n2. It is not error to overrule a motion for continuance where the absent witness is not within the jurisdiction of the court. 108 Ark. 594.\n3. The indictment was sufficient. Kirby\u2019s Dig., \u00a7 2229; 11 S. W. 575; 29 Mich. 31; 68 Mich. 454.\n4. The question raised in support of the motion in arrest of judgment, to the effect that the forging or altering a claim against an estate does not constitute forgery, since there is no validity to the instrument unless it is approved by the probate court, is without merit.\nA motion in arrest of judgment can only questio.n the fact as to whether or not a public offense has been committed, -and the crime of forgery is charged in apt language in the indictment.\n5. There was nothing prejudicial in the court\u2019s remark, to which appellant objects. If appellant thought it was prejudicial, he should have objected at the time and requested an instruction to the jury not to consider it. 108 Ark. 594, 601,\n6. In -the inquiry touching appellant\u2019s reputation, the court required the State\u2019s attorney to ask of the witnesses appellant\u2019s reputation for ,truth and veracity. There was no error. Standard Diet., 1913 ed. p. 2642; 36 Ark. 141; 100 Ark. 199; Id. 321; 88 Ark. 72." }, "file_name": "0452-01", "first_page_order": 468, "last_page_order": 480 }