Gritts v State

Gritts v State
1912 OK CR 14
120 P. 669
6 Okl.Cr. 534
Case Number: No. A-615
Decided: 01/22/1912
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. APPEAL AND ERROR - Objections in Lower Court - Scope and Effect.

2. SAME - Review - Questions of Fact.

3. EVIDENCE - Weight and Sufficiency - Venue.

ON MOTION FOR REHEARING.

4. APPEAL - Rehearing - Oral Argument.

Appeal from District Court; Adair County; J.H. King, Judge.

L.B. Gritts was convicted of forgery, and his punishment assessed at confinement in the penitentiary for three years, and he appeals. Affirmed.

J.H. Huckleberry, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

Page 535

FURMAN, P.J. 1. Appellant was on trial in the district court of Adair county charged with the offense of having knowingly, falsely, and feloniously certified as notary public that one Johnson T. French had appeared before him and acknowledged the execution of a deed conveying certain real estate therein described, when, in fact, the said J.T. French did not make said acknowledgment, nor authorize appellant to make said certificate of acknowledgment. Upon the trial of said cause the county attorney offered in evidence a certified copy of the deed, the acknowledgment to which was charged to have been falsely made by appellant. The record discloses that the following then occurred:

"Mr. Arnold: Your honor, we desire to offer in evidence a certified copy of this deed, the original of which is not in the possession of the plaintiff, and its whereabouts is to the state unknown.

"Mr. Cravens: We will object, as the defendant is charged with the forgery of a deed, and our contention is that the purported copy of the deed is incompetent to show the execution of the original instrument in support of this criminal charge. We will further object to the introduction of this deed, because the indictment purports to charge this defendant with the forgery of the deed and the statement in the indictment that he falsely certified that one French had appeared before him and made the acknowledgment. He is not charged with the forgery of the name of French, but that French appeared before him and made the acknowledgment. The crime charged is the making of a false certificate, and not forgery.

"The Court: The objections will be overruled.

"Mr. Cravens: We will except to the ruling."

It is seen from this that appellant presented to the court at the time this evidence was introduced the specific objections upon which he then relied. In the brief filed in this court appellant's counsel do not attempt to urge any of the objections to the introduction of this testimony presented to the trial court, but rely entirely upon the ground that the certified copy of the deed received in evidence was not admissible until the absence of the original deed had been satisfactorily accounted for. If this objection had been urged in the lower court, it would have been

Page 536

good. The objection actually made must be considered in connection with the statement made by the county attorney at the time this evidence was offered, and it amounts to a waiver of proof that the original deed was not in the possession of the state, and could not be produced by the state.

There is no question but that primary evidence of a written instrument is the writing itself, and that secondary evidence cannot be used to prove the contents of a written instrument until the loss of such written instrument has been shown or its absence satisfactorily accounted for. But, when evidence is received without objection during a trial, it is too late to object to the introduction of such evidence on appeal; and, when specific objections are urged to the admission of evidence in the trial court, these specific objections only will be considered upon appeal. If the objection which counsel for appellant now urge against the introduction of this deed had been presented to the trial court, an opportunity would have been given the state to account for the nonintroduction of the original deed, and thereby the commission of error would have been avoided. The fact that counsel for appellant did not urge this objection at the proper time, if not a tacit admission that the objection could and would have been avoided by proof upon the part of the state, at least it estops counsel from raising this question now. We therefore hold that this objection comes too late when urged for the first time on appeal.

2. It is contended in the brief of counsel for appellant that the verdict of the jury is contrary to the evidence. Appellant was tried in the county in which he resided and among people who knew him. It is true that the evidence is entirely circumstantial, but for the statement testified to by one of the witnesses for the state - that he heard the appellant say that he believed he would plead guilty to the charge. It is true that on cross-examination counsel for appellant did ask the witness if appellant did not say this in a laughing way, and if appellant did not state in the same conversation that he was innocent, and did not know anything about the commission of the crime charged against him, to which

Page 537

the witness assented. This went, however, to the weight of the testimony, and not to its admissibility. We cannot see how an innocent man could treat such a serious matter in a laughing manner. We think that the state's testimony is sufficient to sustain the verdict.

3. The objection is made that the venue was not proven. Venue may be proven by circumstantial evidence, and it is not necessary to prove venue beyond a reasonable doubt. Only those allegations in an indictment or information which involve the guilt of the defendant are required by law to be proven beyond a reasonable doubt. See Fuller v. Territory, 2 Okla. Cr. 88, 99 P. 1098; Brunson v. State, 4 Okla. Cr. 467, 111 P. 988. We find in the statement of the testimony a copy of the deed introduced in evidence. The acknowledgment is as follows:

"State of Oklahoma, Adair County - ss.: Before me _____, a notary public in and for said county and state, on this 20th day of August, 1909, personally appeared Johnson T. French to me well known to be the identical person who executed the within and foregoing instrument and acknowledged that he had executed the same as his free and voluntary act and deed for the uses and purposes therein set forth. Witness my hand and seal, as such notary public on the day last above mentioned. L.B. Gritts, Notary Public. [Seal] My commission expires Apr. 22, 1913."

It was proven that appellant resided and had his office in Stilwell, Adair county. Evidence offered in behalf of the appellant practically admits that the venue was proven by his attempt to prove an alibi to the effect that he was in Tahlequah, Cherokee county, on the 20th day of August, 1909, and therefore could not have taken the acknowledgment to the deed in question on said date in Adair county. We think the circumstances in this case sufficiently show that this offense was committed in Adair county.

The other questions raised on the trial of the case were not urged on appeal, and have therefore been abandoned.

We find no material error in the record, and the judgment of the lower court, therefore, is in all things affirmed. The

Page 538