WILLIAMS

v.

EDUCATIONAL CREDIT MANAGEMENT CORP.

*8Dissenting Opinion by

Judge Carroll.

Ordinarily I would not write a dissenting opinion in this character of case, but I am so well satisfied that the judgment ought not to be reversed upon the ground stated in the opinion that I have thought it worth while to set down the reasons for my dissent.

At his examining trial on the charge of forging’ the check, and in open court, the appellant made the following admissions as testified to by witnesses who were present

J. C. Stewart was asked and said: “Q. I will ask you; if you were present at the police station on the day he was tried there? A. Yes, sir. ,Q. I will ask you whether or not, in response to any questions, he then made a statement with reference to this check? Aú Yes, sir. Q.What statement did he make? A. He said it was a forged check. After the Commonwealth’s testimony was produced, he got up and admitted that it was a forged check. Q. Did he testify, or not, in the case? A. No, sir. He' got up and plead, guilty after the testimony was all in. He got up and plead guilty and said it was a forged' check. Q. Who did he say that to.? A. To the court-. Q. How did he happen to say it? A. After they testified, they' asked, him if he had anything to say, and he just got up and made the statement that it was a forged check. That he thought that was the best way out of-it. He denied it at first and Judge Riley asked him if he had anything to say and he said, ‘No, sir.,’ that it was a forged check. Q. He said it was a forged'check? A. 'Yes, sir. Q. And before that he said it was nqt a forged check? A. He stuck out to the very last that some gentleman, between Winchester and Mt. Sterling had given it to him, by the name of Haskell.” ' ■ '

P. T. Clark, another witness,, who was present at the examining trial, was asked and said: “ Q. I will ask you if you heard him make any statement after the evidence was heard in that ease ? A. My recollection of it is that. Mr. Kemper or Judge Riley asked him what he was do-' ing here and he said he come to the races, and they asked him about the check, and asked him if he had any money in the bank, and he said no; he was here to the rae s and got. broke and wanted to raise some money. Q. Did he say he had drawn the check himself ? A. He did not. Q. Just said he wanted to raise some money? A. Yes, sir. Q. *9Was that after he had testified in the case? A. I think so? I don’t think he testified very much; don’t think he said very much. Q. I mean after the case was tried? A. Yes, sir; he was on the witness stand when he said it. Q. Did he at any time say it was a forged check? A. He did not.”

Malcom Brown, another witness who was. present at this trial, was asked and said: “Q. Did yon hear this man make any statement about a check? A. Yes, sir. Q. What was it? A. He said he had been playing the races and got in tough luck here' and tried to put the check over. Q.. Said what? A. Tried to pass the check. Q. Did he say it was a good check or a bad check? A.'Didn’t say anything about that; said he tried to put it over. Q. He didn’t,say at that time there was any money.in the bank, did he? A. No, sir. Q. He did not say Mr. Haskell had not signed the check, did he? A. No, he did not say that. Q. Didn’t say it was a forged check? A. Not in those words. Q. What do you. mean by ‘not in those words ? ’ A. He said he tried to put it over. Thát was what I taken him to mean, that he tried to put it over. Q. Did he use these words? A. Yes, sir; said he was in hard luck, had been here playing the races and tried to put the check over. Didn’t say whether Mr. Haskell had signed it or not, or whether there was any money in the bank. Q. Did he say he tried to get it cashed or put it over? A. Tried to put it over, is the way, if I remember correctly. Q. He didn’t in any of that conversation say Mr. Haskell did not give him the check? A. No, sir.”

W. A. Green, another witness who was present at the examining trial, was asked and said: “Q. What statement did he make? A. He said he just got in the wrong town to do that kind of business, but said the check was not good; said it right there before Mr. Stewart and four or five of us. Q. Do you remember the exact language used? A. No sir, I do not.” On his cross-examination he was asked and said: “Q. He didn’t say Mr. Haskell did not sign the check? A. He said it was a bad check; that the check was not good. Q. What did he say? A. There was four or five of us talking. He said the check was not good. He said, ‘I just got in the wrong town for this business.’ Q. He did not say it was a forged check? A. He'. <lid not say it was a forged check, no. Q. He did not say it was a forged cheek? A. He said the check was no good.”

*10Dudley Veal, another witness present at the examining trial was asked and said: ££Q. Did you hear a statement immediately after the trial was over in reference to this check? A. Yes, sir; after the testimony was in for the Commonwealth the Judge asked him if he had anything to say, and he said, no, he had nothing to say; that he just got into the wrong place. Q. Do you remember anything else he said? A. No. Q. That is the way you remember it? A. Yes, sir.” On cross-examination the witness was asked and said: “Q. And that is what was said?' A. That is my recollection.”

The appellant, testifying in his own behalf, was asked and said: “Q. I will ask you in regard to a statement made in the police court in regard to the forgery of this check. Did you make that statement, or words to that effect? A. I did not. Q. What statement did you make? A. After two or three gentlemen had testified, Judge Eiley asked me what I had. to say, but I said to Judge Eiley these very words; I says: £I guess it is a case of betting on the wrong horse.’ Q. What do you mean by that? A. I got tangled up on a bad check not knowing' anything about the circumstances, not knowing anything about that man. Q. Did you have any reason to believe at that time that Mr. Haskell was giving you a cold check? A. I had not.”

' On his cross-examination he was asked and said: £ £ Q. Now you said when you were down to the police station and you. were tried there that you made a statement to the Judge about betting on the wrong horse? A. I did not. I said this: £I guess that I am on the wrong horse, ,Judge.’ That was the only statement I made in the police court. Q. And did you not make the statement that you got into the wrong place to do this kind of business? A. No, sir. Q. And that you tried to put this check over and could not do it? A. No, sir; never to any man. Q. Didn’t you really say that you had been betting on the wrong horse and that you were all down and out and that was the reason you tried to put this, matter over? A. I did not. I made no such statement at all. Q. You are ..sure about that? A. Yes, sir.”

This is all the evidence in the record relating to what appellant said in open court on his examining trial, and I confidently submit that this evidence was more than sufficient to sustain the verdict and the judgment. Four witnesses in behalf of the Commonwealth gave evidence *11that appellant. either directly admitted that he forged the check or used other expressions admitting his guilt, and this evidence is not denied by any person except the appellant.

Section 240 of the Criminal Code provides that “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof .that such an offense was committed.” But this section of the code does not affect the confession made by appellant, because it was made in open court, and-when a confession of guilt is made in' open court in direct and positive words, or in words that reasonably amount to a confession of guilt, the evidence of one witness for the Commonwealth is sufficient to take the case to the jury.

It is said in the opinion that the declarations made by the appellant in the police court did not amount to a confession of his guilt or to an admission that the check was forged; but in this conclusion I am unable to agree. I think each of the witnesses for the Commonwealth gave evidence sufficient to show that the appellant either, directly confessed his guilt or admitted it in words that amounted to a confession. With this evidence before them, the jury could not reasonably have concluded otherwise than that appellant was guilty of the commission of the crime with which he was charged.

If a conviction cannot be sustained on this character of evidence, then many judgments of conviction that have been affirmed by this court should have been reversed. Heretofore we have consistently adhered to the rule that when there was sufficient evidence to justify the submission of the case to the jury, its finding of guilt would not be disturbed although it might be against the weight of the evidence. In this case I submit that no claim could be made that the finding of the jury if it was' rested alone upon the evidence of what took place in the examining trial was not supported by the evidence, because four disinterested witnesses testified to what the appellant said, and there is no contradiction of their evidence except by the appellant himself. Under these circumstances, it seems to me that the opinion in this case lays down a new rule concerning the weight and sufficiency of evidence in criminal cases, and one that if adhered to cannot but result in the discharge of many persons found guilty of committing crimes and who ought-to “be punished.

*12But if there had been left out of this record everything that transpired in the examining court, and it should be assumed that no examining trial was ever held, there is, in my opinion, sufficient evidence in the record to sustain the verdict and judgment. I do not mean to say that, leaving out what took place in the examining court, there was sufficient evidence furnished by the witnesses for the Commonwealth to make out a case against the appellant; but he took the witness stand in his own behalf, and the facts and circumstances that were developed on his examination, taken in connection with the evidence for the Commonwealth, show, as I think, beyond a reasonable doubt his guilt. When 'the appellant voluntarily took the witness stand in his own behalf, the jury had the right to consider and weigh against him every incriminating statement that he made.

The defendant in a criminal prosecution who takes the witness stand in his own behalf, may give evidence that will alone warrant his conviction. His testimony may also be used in connection with that of the witnesses for the Commonwealth to supply deficiencies in the case made out by the witnesses for the Commonwealth, and that is what the evidence of the appellant did in this case. It supplied the missing links in the evidence for the Commonwealth. His guilt is written in unmistakable terms in almost every page of his evidence. His story on the witness stand bears every ear-mark of falsehood and fraud, and is so full of contradictions and improbable statements as to leave no room to doubt his guilt.

But before relating what the appellant said on the witness stand in testifying in his own behalf, let me recite briefly the substance of the evidence for the Commonwealth independent of the confessions.

C. P. Wiggins, who was engaged in the fence business in Lexington, testified that appellant came into his store with a check drawn on the Bank of Commerce, of Lexington, payable to Prank M. Bates, purporting to be signed by H. L. Haskell, and wanted to buy some fencing, to be shipped to him on the Monday following. That he did not ask to have the check cashed but said he would go out and get the money on it and when he got the money would come back and pay for the fence. He did not, however, return.

On Saturday, September 12,1914, appellant went into the store of W. A. Oreen to buy a bed, telling Oreen that *13he wanted it for his wife and would have it shipped to Winchester. He also told Green that he did not have any money hut was going down the street to see his partner, Haskell, who owed him some money. When he came back he brought the check and wanted Green to cash it and take out pay for the bed and give him the balance. He told Green .that Haskell and he were partners in the dairy business at Winchester and that he was in Lexington on some business and happened to see the bed in the window and wanted to buy it. The suspicion of Green was aroused, and he called up the police station, and a policeman was in the store when appellant came back with the check. When appellant saw the policeman, he took the check out of Green’s hand and told him he would make a deposit of $5 on the bed and send his wagon for it on Tuesday. At this point the policeman arrested appellant and took him away.

When appellant took the witness stand in his own behalf, his evidence, in disconnected but narrative form, is as follows: He said that his home was in the State of Washington, and that he came to Lexington for the purpose of attending the races then going on. That he got the check from one, H. L. Haskell, a man whom he did not know, but who said he lived between Winchester and Mt. Sterling. That he met him for the first time between Winchester and Mt. Sterling, as he, appellant, was on his way to Winchester to locate his brother, who' had written him that he was at that point. That he had not been able to locate his brother, but on this trip to Winchester he met Haskell and asked him if he knew a man named Tim Bates. That in reply Haskell told him that Tim Bates and his wife and children had left for Arkansas about three weeks before. Appellant said that Haskell asked him if he knew Bates, and he said he was his brother, and Haskell then said: “I would like to locate him. I owe him $68.50 for pigeons.” That appellant then said to him: ‘4 If you want to give it to me I will see that he gets it, ’ ’ and that Haskell then wrote the check and gave it to him. That he had never seen or heard of Haskell before. That while in Lexington he stopped at the Phoenix Hotel and registered under the' name of Thomas J. Wade, from San Francisco. He s’aid that Haskell gave him the check on the 8th of September but asked him to hold it for a few days, and that he did not try to get it cashed until Saturday, the 12th,

*14, ■ He further said that he had some goods stored m Indianapolis. That his wife and children were at Louisville and he had telephoned them to go to Cincinnati. That he had intended to go there to meet them but missed the train, and while walking around the city happened to see this bed in Green’s window. That it was a fine bed and he wanted to buy it to ship it home. lie denied the acts and statements attributed to him by Wiggins and Green, and said that he never tried to buy any wire from Wiggins and was not in his store.

The substance of this evidence is that appellant, after making a trade with Wiggins to buy some fencing wire, went to the store of Green, where he bought a bed, and in payment for the bed, which he said he would send his wagon for on the following Monday and take it to Winchester, asked Green to cash a check, take out the. price of the bed, and give him the remainder in money. That the bank on which this check was drawn had no account with any man named Haskell and did not know any person. of that name. That appellant lived in the State of Washington, but registered at the hotel under the name of Wade, from San Francisco, and testified that he got this check from a man he had never seen or heard.of before, who said he knew appellant’s brother and owed him for pigeons, and gave appellant the check in order that he might pay appellant’s brother. That he was going to ship the bed to Cincinnati, Ohio, where he expected to meet his family, who had gone from Indianapolis, Indiana, to Louisville, Kentucky, and then to Cincinnati.

Other circumstances pointing to his guilt are: The fact that he tried to cash this check on Saturday night after banking hours, and when the policeman who had come to Green’s store in response to a message from Green, appeared, appellant was anxious to get his check back and said nothing more about having it cashed.

This evidence of appellant’s guilt, although circumstantial, is, I think,, entirely sufficient to show that the ■check was a forgery and that appellant knew it, and on this evidence alone, without reference to what transpired in the police court, the conviction of appellant should be sustained..

Judges Settle and Hannah join me in this dissent.