Sistersville daily oil review. [volume] (Sistersville, W. Va.) 1902-1905, 1904-06-29

reversed ana remand
ed for trial.
l. The giving of instructions,
predicated upon two different
hypothesis in favor of the State
in a criminal case, in support of
one of which there is no evidence,
and the refusal of a proper in
struction embodying the one the
ory which the evidence tends to
establish, is prejudicial error, call
ing for a new trial.
2. When, in a criminal case,
the court gives erroneous instruc-
tions at the instance of the State,
and refuses a proper one asked for
by the defendant, and afterwards
gives, at the instance of the de-
fendant, instructions embOdying
the erroneous propositions con-
tanned in the instructions given
for the State, the action of the
Court in respect to the defend
ant s instructions is tantamount
to an erroneous modification Of
the defendants proper instruc-
ton, and he is not estopped from
complaining Of the action of the
Court.
3. To convict a City Clerk of
the forging Of an instrument pur-
porting to be an order for the pay
ment of money out of the treas
ury of the city of which he is
clerk, bearing the genuine sigma
ture of himself and the Mayor Of
such city, upon the theory Of his
having fraudulently made such
order, the State must show that
the order was made by him with
out authority so to do.
James H. Pine assigns errors in
a Judgment, rendered by the Cir
cult court of Tyler county, upon
a verdict of guilty of the offense
of forgery, and sentencing him to
imprisonment for a period of six
years.
After having entered a plea of
not guilty, he was permitted to
withdraw it, and demur to the in
dictment, and upon the over-rul-
ing of the demurrer, he again en-
tered his plea in bar. The paper
alleged to have been forged pur-
ports to be city order of the City
Of Sistersville for the sum of 1925,
drawn upon the treasurer of said
city, payable to Bently & Gerwig,
and contains the clause latter de-
Quoting therefrom all taxes and
fines due from bearer to said
city," and the point urged on the
demurrer is that, as the order pur-
ports to be for the payment Of
money conditionally and not alb
solutely, the indictment ought to
aver that no taxes or fines were
due from the bearer. For this
proposition, 2 Bish. New G. l..
Secs. 533 and 545, is relied upon.
The rule here invoked applies
only when the instrument forged
is invalid on it's face or is friv-
olous in character, not purporting
to create any liability, conditional
or absolute. That the acceptance
of a conditional order may be the
subject of forgery has been de-
cided, Com. VS.. Aver, 3 Cush.
Mass $50. So also, in Com. VS..
Costello, 120 Mass, it was held
that an indictment for the forgery
of a bond to dissolve an attach
ment, a conditional obligation,
need not set forth how the bond
could have have been used to de-
fraud. The order set forth how
the bond could have been used to
defraud. The order set forth in
this Indictment, however, dis
closes upon its face how it may
be used to the prejudice of the
City of Sistersville, even though
as to the mere payment of money
it is conditional. If fraudulently
issued and based upon no consid-
Grafton, would it not be to the
prejudice of the rights of the city
to allow credit for it on account
of taxes or fine dues Does it
not, on its face call for money due
from the city treasury or for
credit upon demands due to the
said treasury? Its use in either
way, if falsely and fraudulently
made. would defraud the city.