The herald., 1898-12-09
DOLE GETSAN new TRIAL
CONVICTED OF FORGERY, HIS
CAUSE IS REMANDED
DIVERSE VIEWS OF COURT
Three Opinions Filed in Which widely
Different Theories of Law Are
Defined

Three opinions rendered Dy the supreme
court in the case of E. j. Dale, convicted
in this county of forgery, were received by
Deputy Clerk Martin yesterday. The hrst
is by Chief Justice Beatty, and concurred
in by Justice Van Fleet, wher1n the Judg-
ment and order denying new trial are re-
yersed and the cause is remanded. A concur
ring opinion by Justice Mcfarland is en-
dorsed by Justice Henshaw and Temple,
and a dissenting opinion by Justice Ga
ROUTE has the endorsement of Justice Har-
rison.
The specific charge against Dole was that,
having in his possession certified check
for $3.50, he raised it to $3.50, forged certain
endorsements on it, and, knowing its ficti-
tious character, passed it ON the State Loan
and Trust company, all with intent to de-
fraud that corporation. demurrer was
overruled, and this ruling was the first error
assigned in support of the appeal. The lead
ing opinion holds that the court did not
err in that regard, technical objections be-
ing swept away with the assertion that the
intent to defraud is the essential element OF
the crime of forgery, and the whole series
of acts charged against Dole were alleged
to have been done with the single intent
to defraud the company, only one offense IN
reality thus being charged.
1t is further held that the superior court
did not err in overruling defendant OBJ
iections to questions asked him on cross
examination, as to whether he had stated
the manner in which he became possessed
of the check to the arresting officer or to
those in whose custody he was subsequently
placed. He was compelled against his obJec-
ton to answer such questions and admitted
that he made no such explanation to the
officers. Whether silence under the accu-
sation of crime amounted to an admission OF
guilt or not, the court holds, depends upon
circumstances, which were properly lett to
the jury to determine.
Expert testimony regarding the removal
of writing by the use of chemicals is held to
have been properly admitted by the court,
but the instruction by the court to the jury
is held to be clearly erroneous, and was as
follows: ''If you believe from the evidence
beyond reasonable doubt that the de-
fendant committed the offense charged IN
the information, or aided, abetted, or as
sisted any other person OF persons to COM
init the same, then you should find the de-
fendant guilty.
The decision says, aside from the person
who directly commits criminal offense, no
other is guilty as principal unless he aids
and abets." A person may aid in the COM
mission of an offense by doing innocently
some act essential to its accomplishment,
whereas the word "abet" includes knowl-
edge of the wrongful purpose OF the per-
petrator. and counsel and encouragement
in the crime. This error, however, is held
to have been caused by specific instruction
delivered at the request of the defendant,
wherein the distinction between aiding in
nocently and abetting in the commission OF
a crime was pointed out to the jury.
1t is held that Judge Smith erred in
nstructng the jury that where weaker evil
dence is produced when in the power of the
party to produce higher it is presumed that
the higher evidence would be adverse if it
had been produced. Numerous other errors
are pointed out, notably the refusal to in
struct the jury that it was its duty to acqult
il reasonable doubt existed that the check
had been raised in amount, and in permit
ting the cross-examination of defendant for
the purpose of showing that he got money
from the Loan and Trust company on the
forged check, this being held to be part OF
the peoples case in chief. Counsel for
the prosecution" says the opinion, "seem
to have thought their case weak on that
point, and sought to prove it more fully by
the cross-examination OF the defendant.
This they had no right to do
For all these reasons, the cause is re-
manded for new trial. Justices McFar-
land, Henshaw and Temple, however, while
concurring in the reversal of the decision
OF Judge Smith, dissent from the views en-
pressed regarding the alleged error of the
court below in overruling defendants OBJ
jections to questions asked him on cross
examination. They hold that this was er-
roneous and that such ruling is an addi-
tional ground for reversing the judgment
and order appealed from.
Justices Garoutte and Harrison take the
same view as the chief justice regarding
the correctness of such ruling on objections
to cross-examnaton of defendant and hold
there is no law to compel defendant to
take the witness stand in his own behalf,
but when he does he may be asked any ques-
tion which will show his past conduct to be
inconsistent with his present testimony.
They further hold that the instruction with
respect to weaker" and "higher" evidence
worked against the prosecution as much
as against the defendant, and Dole's
COuHScl COuCtut Ill llleiI opening DTltI lIdJ
the instruction was not based upon any
"particuar facts in the case. Such con-
cession alone, they say, demands that
new trial should not be granted upon that
ground.
Proceeding, Justice Garoutte says: "If,
in the multitude of rulings upon the ad-
mission and rejection of evidence, and upon
the procedure of the trial in general, judge
does not make some mistake, it would be a
wonder indeed. Only few men possess the
amount of legal wisdom. The constitutional
right of appeal granted defendant does
not contemplate that this court should find
grounds for new trial in any and every
mistake the trial court may make. For the
reasons here given, the contention of de-
fendant discloses a matter too small to de-
mand retrial of the case The other mat
ters are of even less importance. I think
the judgment and order should be af
firmed."
So, out of the tangle Of diverse opinion,
Dole will secure new trial, that much be-
ing accorded to him, however, else the jus
tices may disagree by the votes of five
against two members of the court.
PROF. LOWE SUED