Fire Ass'n v. Merchants' National Bank

The opinion of the court was delivered by Taft, J. I. The plaintiff claimed that Hopkins, on the first day of August, 1876, forged the name of Charles H. Green as an endorsement on a draft drawn on the plaintiff that day by Hopkins, had the draft discounted by the defendant, and misappropriated the proceeds. Hopkins, as a witness for the defendant, was inquired of on his examination in chief as to his assets and liabilities, and as to those of the firm of Bowman & Hopkins on that day and a few days following. One Joslyn was called by the plaintiff as a witness, and his testimony tended to show that on the same day he, Joslyn, was pressing Hopkins for the payment, or fixing up of claims amounting to several hundred dollars, for which Joslyn was liable. The defendant excepted to the admission of the evidence of Joslyn ; and the question is, was its admission error ? No specific objection was made. We think its admission proper for the purpose of showing that Hopkins was pressed for money on that day, and the character of the claims made against him ; that one of them was a claim for the misappropriation of funds. The stronger the pressure upon him for money, which he did not have, the stronger the motive to commit the forgery and thus obtain it.’ If he did commit the forgery, it was to obtain money ; and the testimony of Joslyn tends to show, that he was in want of it. The defendant had introduced evidence as to Hopkins’ liabilities ; the plaintiff should certainly be permitted to meet it; and the testimony of Joslyn tended to show a large indebtedness. The amount of such liabilities was a mate [667] rial question ; and we think the evidence legitimate upon that. subject. II. Green testified that Hopkins agreed with him, at the interview had on the first day of August, 1876, that he, Hopkins, would send to the plaintiff for a draft for the amount of the witness’ claim, and when it came he would send it to him. Evidence Vas offered tending to show that subsequently Green • asked. Hopkins if the draft had come, and the court admitted it, with the reply that Hopkins made ; and also admitted in evidence postal cards written by Green to Hopkins, each making the same inquiry. These cards were written after the draft had been negotiated. The evidence tended to show that Hopkins did not reply to either card, and he claimed that he did not receive them. The defendant excepted to the evidence of the conversations and correspondence between Hopkins and Green detailed above. The important question at issue was, whose story was entitled to credit, Green’s or Hopkins’. The facts as found by the jury as to the conversation and cards would have great weight in giving character to the transaction between them on the first day of August, as showing how the parties understood it; whether Hopkins did agree to send to the plaintiff for a draft and then drew one and forged Green’s endorsement, as the plaintiff claimed, or whether the draft was executed and endorsed by Green, as Hopkins testified it was. In our opinion the evidence was proper for the purpose for which it was admitted ; showing how the parties understood the transaction and affecting the credibility of their testimony. What the transaction was, was a legitimate inquiry, both Green and Hopkins had testified in relation to it, and the evidence as to the subsequent conduct and acts of the parties inconsistent with their testimony affected their credibility. The defendant’s counsel admit that it was proper to impeach Hopkins, but insist that the evidence was not admitted for that purpose. We think it was. It was admitted for the purpose of showing what the parties’ acts were in relation to the transaction, how they understood it, and if the jury believed that Hopkins’ conduct and admissions were inconsistent with his testimony, it did tend to virtually impeach [668] him. A fair construction of the exceptions is, that it was admitted for that purpose : the court told the jury that it was to enable them “ to determine which one was telling the truth about it.” III. The defendant’s counsel inquired of Hopkins as to his own and Bowman & Hopkins’ assets and liabilities on the first day of August, 1876. We think it was legitimate cross-examination for the plaintiff’s counsel to inquire as to his and the firm’s financial standing. It w.as not a collateral fact, but relevant to the question of Hopkins’ bankruptcy and want of money, which constituted a motive for the commission of the forgery, and was proper to be shown in chief and certainly to be inquired about on cross-examination, after the witness had testified as to his assets and liabilities and those of the firm. IV. The defendant was not entitled to a compliance with its request, that it was not to be affected in any manner by the acts, conduct, declarations, or admissions of either Hopkins or Green, made or done after the defendant had purchased the draft in question, and of which the defendant had no knowledge. We have already decided that the acts and declarations of Hopkins are admissible for the purpose stated. The defendant would therefore be affected by them to that extent. Not being entitled to the charge as requested, it was not error for the court to refuse it. Bates v. Cilley, 47 Vt. 1. Y. The remaining question is in regard to the request to charge, as to the presumption of Hopkins’ innocence. The request is in accordance with the rule laid down in Bradish v. Bliss, 35 Vt. 326, that in civil cases, whenever the act alleged involves fraud, or crime, the legal presumption of innocence must be overcome by the party who asserts the contrary. The defendant was entitled to the charge called for by the request. Was it given ? Detached sentences from the instructions may be selected indicating that it was not; but we think the question was, as a whole, fairly and fully explained and the request properly complied with. The general rule was correctly stated, and the jury were told to [669] find from all that they learned in regard to Hopkins just what weight they would give to this legal presumption in determining the issue then on trial, and whether the presumption of innocence was overcome ; whether the plaintiff had established by a fair balance of testimony, giving the presumption such weight as it ought to have, that the signature of Green was a forgery. They were told to determine the matter “ from all that they learned in regard to the party that is claimed to have done the criminal act.” The counsel argue that this gave them liberty to use facts that were not properly in the case, innuendoes of counsel, and knowledge coming to them incidentally, that they were not told how they must learn it, nor when. No request was made to have the jury instructed in this respect; and we do not think the court ought to presume that the jury felt authorized to, and did, try the case from their own knowledge of the facts involved in it; or that they understood from the language of the court that they were at liberty to act upon evidence that had not been given in court. If from evidence which was properly in the case the jury learned that Hopkins was guilty of other offences ; or that in a criminal prosecution he had been convicted of the forgery in question; or that he had misappropriated money of Joslyn & Co., or others, we see no reason why these facts should not be considered in overcoming the presumption of innocence which attached to the witness. They were proper elements in determining what his character was, and enabled the jury to say just what there was to this presumption of innocence in his case. We find no error ; therefore let the judgment be affirmed.