{
  "id": 1485155,
  "name": "Hawthorn v. State",
  "name_abbreviation": "Hawthorn v. State",
  "decision_date": "1944-02-28",
  "docket_number": "4348",
  "first_page": "1009",
  "last_page": "1013",
  "citations": [
    {
      "type": "official",
      "cite": "206 Ark. 1009"
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    {
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      "cite": "178 S.W.2d 490"
    }
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "category": "reporters:state_regional",
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    {
      "cite": "77 Ark. 537",
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    {
      "cite": "236 S. W. 846",
      "category": "reporters:state_regional",
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    {
      "cite": "151 Ark. 515",
      "category": "reporters:state",
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        "/ark/151/0515-01"
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  "last_updated": "2023-07-14T15:20:24.664732+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Hawthorn v. State."
    ],
    "opinions": [
      {
        "text": "Robins, J.\nAppellant, J. G. Hawthorn, was convicted by a jury of the offense of forgery, and, from judgment sentencing him to imprisonment in the penitentiary for two years, has appealed. The information upon which he was tried, omitting the formal portion thereof, was as follows:\n\u201cThe said defendant on the 15th day of March, 1943, In Hot Spring county, Arkansas, did unlawfully, fraudulently and feloniously forge and counterfeit a certain writing on paper purporting to be a valid check, the words and figures as follows, tp-wit:\n\u201cHot Springs\n\u201cNational Park, Ark., 3-15 1943 No...................\n\u201cArkansas Trust Company 81-51\n\u201cPay to the Order of Cash $2,600.00\n\u201cTwenty Six Hundred Dollars\n\u201cJ. G. Hawthorn\n\u201cthe back of which was indorsed as follows: Pay to the Order of National Bank, Malvern, Arkansas.\nHodges & Co.\n\u201cwith intent then and there fraudulently and feloniously to obtain the possession of money of the Malvern National Bank and H. H. Hodges against the peace and dignity of the State of Arkansas.\u201d\nThe testimony is undisputed that the check described in the information was presented to the Malvern National Bank by appellant, and that the bank thereupon paid appellant the sum of $2,600 thereon, and that thereafter the check was transmitted by the Malvern National Bank to the drawee, Arkansas Trust Company of Hot Springs, and that the drawee refused payment thereon because appellant did not have sufficient funds on deposit with 'it, and that appellant gave Hodges & Company, whose indorsement, appeared on the check, a mortgage to secure the amount thereof, but has failed to repay the entire amount. The indorsement of Hodges & Company on this check was made with a rubber stamp, but H. H. Hodges (who did business under the firm name of Hodges & Company) testified that he did not indorse this check and did not authorize the use of the rubber stamp thereon. One of Mr. Hodges \u2019 employees testified that, at the time the trouble came up about this check, the rubber stamp was not at Mr. Hodges\u2019 store. Mr. Hodges testified that he was not at Malvern the day the check was said to have been indorsed, but was absent attending court i\u00f1 Hot Springs. The sheriff testified that after he arrested appellant Mr. Hodges went up in the jail and said to appellant: \u201cHawthorne, you know that I didn\u2019t indorse those checks. I was in Hot Springs and couldn\u2019t have cashed them\u201d; that appellant did not deny Mr. Hodges\u2019 statement, but, during the conversation, appellant said: \u201cIf you will give me a chance, I will pay it back.\u201d\nAppellant testified that Hodges did indorse the check in question with the rubber stamp as he had done numerous similar checks before, and there was some corroboration of appellant\u2019s testimony as to this phase of the matter.\n1.\nAppellant urges that the lower court should have directed a verdict for the defendant at .the close of the state\u2019s evidence because there was no proof that the rubber stamp used in indorsing the check was ever in the possession of appellant. But the testimony on behalf of the state was to the effect that Mr. Hodges did not make the indorsement himself and did not authorize it to be made; that the stamp which was used was lost or out of the possession of Hodges & Company' at the time the check was negotiated, and that appellant himself pre-. sented the check and collected' it at the Malvern bank. In view of this testimony the jury had a right to find that appellant wrongfully made the indorsement himself.\nII.\n\u25a0 It is next contended that the court erred in permitting the sheriff to testify as to statements made to appellant by Mr. Hodges and to prove that appellant did not deny Mr. Hodges\u2019 statement to the effect that appellant knew that Hodges did not indorse the check. This testimony was admissible.\n\u201cProof of damaging statements against an accused person, made in the presence of the accused, are admitted on the theory that the jury might find that the silence of accused in the face of accusation was a tacit admission.\u201d (Headnote) Moore v. State, 151 Ark. 515, 236 S. W. 846.\nIII.\nIt is next urged by counsel for appellant that, inasmuch as appellant was indicted for forging a check and it was conceded that the.face of the check was written out and signed by appellant, using his own \u00f1am\u00e9, appellant could not be convicted of forgery of the indorsement on the check under this information, and, in support of this contention, the opinion of this court in the case of Crossland, v. State, 77 Ark. 537, 92 S. W. 776, is cited.\nThat decision was rendered prior to the adoption of Initiated Act No. 3, entitled \u201cAn Act to Amend, Modify and Improve Judicial Procedure and the Criminal, Law, and for Other Purposes.\u201d Acts of 1937, p. 1384. Under the law, as it was at the time this decision was rendered, the statute required (\u00a7 3028 of Crawford & Moses\u2019 Digest) that the indictment contain \u201cA statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.\u201d But the initiated act referred to, in setting forth the requirements of an indictment, provides: \u201cIt shall not be necessary to include a statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so.\u201d (\u00a7 3851 of Pope\u2019s Digest.) While an attempt to amend \u00a7' 3851 of Pope\u2019s Digest was made in the General Assembly of 1943 (See Acts of 1943, p. 800) this amendatory act failed of passage because it did not receive the two-thirds vote required by the constitution to amend an initiated act.\nNow the information under consideration here charged appellant with the offense of forgery and it charged that he forged \u201ca certain forged and counterfeited writing on paper purporting to be a valid check . . . in words and figures as follows,\u201d and immediately following there was set forth in the information an exact copy of the check, together with the indorsement.\nIn view of the fact that it is no longer required that the acts constituting the offense be set forth, \u201cunless the offense cannot be charged without doing so,\u201d and it appearing that, by the information, the offense of forgery \u201cof a certain . . . writing on paper,\u201d which was then set forth in haec verba and which included the indorsement, was charged, we hold that, the information was sufficient to charge appellant with the 'offense of forging the indorsement on this check.\nNo error appearing, the judgment of the lower court is affirmed.",
        "type": "majority",
        "author": "Robins, J."
      }
    ],
    "attorneys": [
      "\u2019 H. B. Means, for appellant.",
      "Guy E. Williams, Attorney General and Oscar E. Ellis, Assistant Attorney General, for appellee."
    ],
    "corrections": "",
    "head_matter": "Hawthorn v. State.\n4348\n178 S. W. 2d 490\nOpinion delivered February 28, 1944.\n\u2019 H. B. Means, for appellant.\nGuy E. Williams, Attorney General and Oscar E. Ellis, Assistant Attorney General, for appellee."
  },
  "file_name": "1009-01",
  "first_page_order": 1029,
  "last_page_order": 1033
}