State v. Moore

Under P. S., c. 207, s. 3, and the act in amendment thereto (Laws 1895, c. 56), a trial term of the supreme court may be adjourned to another place in the county for one or more days without publication of such adjournment, as-against parties having actual and seasonable notice thereof. The statutory provision that the court shall direct the number of jurors to be summoned, and from what towns, having been in force in this jurisdiction since 1758, is not in conflict with the constitution.'

Indictment, for fraudulently making a false record of a certain certificate numbered 108 of tbe stock of the Union Publishing Company, which the respondent, as treasurer, issued to J. C. Moore, of Laconia, N. H., November 5,1894, with an intent to defraud. The respondent seasonably filed a motion for a change of venue, alleging that he could not have a fair and impartial trial in this county. The -court reported as follows : “ Upon considering all the evidence, the court does not find that there is probable ground to believe that the respondent cannot have a fair and impartial trial in this county, and the motion is denied. The evidence tended to show that there was prejudice against the respondent in the city of Manchester, although reputable witnesses testified that he could have a fair trial in Manchester from jurors drawn in part from its citizens. The court ordered that no jurors be drawn from Manchester and certain towns adjacent thereto, and was of the opinion that the public good would be promoted •by having trial at Nashua, and the court adjourned thereto.” To the order that the trial be had at Nashua the respondent excepted. Before the jury was drawn for this case, and while the entire array w'as present in court at Manchester, the respondent made and filed the following motion : “And the said respondent comes and moves that the entire array of jurors now in attendance on said court, from whom it is proposed to select a panel to try the above entitled action, be discharged and dismissed on the ground and for the reason that said jurors have been irregularly and illegally selected and summoned to attend at this time; that said jurors have been selected from only twenty of the towns of said county and from a small section of the county, and not from the body of the county at large; and that no jurors are returned from the nine wards in the city of Manchester, and the nine wards in the city of Nashua, and from the towns of Bedford, New Boston, Merrimack, Sharon, Windsor, Litchfield, Hudson, and Goftstowu, so that each town and ward does not furnish its proportion of jurors as required by the statute. The said respondent objects and protests for the reasons aforesaid to the entire array of jurors now in attendance from which it is proposed to draw a panel to try said case; and also for the reason that all of said jurors are prejudiced against the said respondent and an impartial panel cannot be selected therefrom. He therefore moves that the case may be continued, and for a change of venue.” After issuing the venires as above described, and before the return day thereof, the court ordered the trial to be had at Nashua on May 28, against the objection of the respondent and subject to his exception; on that date, both at Manchester and at Nashua, after a jury had been impaneled, he renewed his objection to being ordered to a trial at Nashua. At this latter time and place he assigned as a reason for his protest that the provisions of the statute with regard to adjournments had not been complied with, and that the court had no jurisdiction at Nashua, citing P. S., c. 207, ss. 3, 4, 5, and Laws 1895, c. 56. No order for adjournments had been published as therein provided, but the court ordered the trial to proceed and the respondent excepted. The state was allowed in its opening, subject to the defendant’s exception, to refer to an over-issue of stock of said corporation by the defendant as treasurer, and also to introduce evidence as to said over-issue, for the purpose of showing that the defendant fraudulently made the false record set forth in the indictment. The articles of association of the Union Publishing Company were dated July 27, 1880, were recorded with the secretary of state, November 5, 1880, and with the city clerk of the city of Manchester, November 8, 1880. Prior to the recording of the articles of association, the company adopted by-laws. Subject to the defendant’s exception, the state ivas allowed to put in evidence the by-laws and to show by a subsequent witness that they had been recognized by amending them on several occasions after they had been recorded. The by-laws were put in evidence by John II. BAedell, the first clerk of the association; and subject to the defendant’s exception, the state ivas allowed to show by him that it ivas his recollection that the by-laivs were adopted after the articles of agreement had been signed. Subject to the defendant’s exception, the state was allowed to show by the record of the Union Publishing Company that Joseph W. Fellows ivas elected clerk thereof December 5, 1882, at a meeting adjourned from the annual meeting held November 21, 1882, and that he held this office down to the annual meeting of 1896. As to the admission of evidence of this election the defendant’s counsel said : “ To this record we object for two reasons. It appears affirmatively from an examination of the book itself that no notice was given to the stockholders of this meeting, and it is apparently a record of a meeting held without any notice. Second, because, so far as appears, this meeting was held without any time or place having been fixed by the board of directors as provided for in the only suggestion of by-laws that has been presented.” He further stated that “ we do not assent in this case to the use of any alleged de facto organization.” Subject to the defendant’s exceptions, the state was allowed to show from the records that at the annual meeting in 1885, held on the third Tuesday of November of that year, certain amendments to the by-laws were passed and the defendant was elected treasurer of the corporation; that at a meeting held February 9, 1894, adjourned from February 6, 1894, the by-laws were amended; and that the capital stock of said corporation was increased and limited to $150,000, represented by fifteen hundred shares. Among other things, the court instructed the jury as follows : “ If the state is to maintain its charge, if the respondent is to be adjudged guilty of this crime for which he is indicted, it must satisfy you : “First. Of the organization and existence of this corporation. “Second. It must satisfy you that the respondent was the treasurer of this corporation at the time said record was made. “ Third. It must appear that as such treasurer it was his duty to keep a record of the stock issued by the corporation, “ Fourth. That he fraudulently made a false record of said certificate No. 108 with intent to defraud. “ As bearing upon the organization and existence of this corporation, there has been introduced in evidence what is claimed to be the original agreement of organization of the Union Publishing Company, also what is claimed to be portions of the record from the secretary of state’s office and from the city clerk’s office in Manchester wherein these articles of agreement were recorded, and what is claimed to be portions of the records of this company. There has also been presented to you what is claimed to be a certificate of the secretary of state of an act of the legislature in regard to this company. “ The effect of this agreement and of these records and of these certified copies — if you find them to be the papers that they are claimed to be — is that this company was organized and is in existence, and was in existence at that time when the offence charged is alleged to have been committed; that the respondent, Joseph C. Moore, was elected treasurer in 1890 and at the annual meeting, February 9, 1894, and continued in said office down to the time of his resignation, October 2,1895; that the legislature authorized this company or empowered them to make their capital stock, if they desired, $200,000, and that by various votes of this company its treasurer was, at the time when this offence was charged against him, authorized to issue $150,000 worth of stock,— fifteen hundred shares of a hundred dollars each. If you find this to be the original agreement of incorporation and these records to be what they are claimed to be, you will find that this company was duly organized and in existence, that this respondent was treasurer from as early as February 9, 1894, to the time of his resignation, October 2, 1895, and that he was authorized to issue stock of this company up to fifteen hundred shares and not exceeding that. “ Section 12 of chapter 149 of the Public Statutes, together with extracts from the records of this corporation, has been put in evidence on the question whether it was the duty of the defendant, as treasurer, to keep a record of the certificates of stock issued by the corporation. If you are satisfied of the existence of such records, and that they are what they are claimed to be, taking them in connection with said section of the Public Statutes, you will find that it was the duty of said defendant as treasurer to keep a record of the certificates of stock issued by the corporation. The question now remaining is : Did the defendant, as such treasurer and while he was treasurer, fraudulently make a false record of the issuance of certificate No. 108, with intent to defraud ? “ Upon this question the certificate book of the company has been put in evidence, and the stubs therein have been referred to as containing records of such certificates. If you are satisfied that the stubs or the stub part of this certificate book was intended as a record of the certificates of stock of said company, then you will consider the record as to the issuance of certificate No. 108. Was this record false or was it true ? Does the number of shares mentioned in the certificate agree with the number of shares mentioned on its corresponding stub ? If you find it does,— if you find it is a true, an honest record of this certificate issued,— then the defendant is not guilty. Or if you find that the record of the number of shares of said certificate, as it appears on the stub, does not correspond with the number in the certificate, but that the record was made accidentally, or with an honest purpose, or not with an intention to defraud, then the defendant is not guilty. Or if you find that the false record was made after he ceased to be treasurer, then no matter what may have been his intent he is not guilty of the offence with which he stands charged. “But if, on the other hand, you find that the record was false, that is, that the number of shares mentioned in the stub of the certificate No. 108 was and is different from the number of shares mentioned in certificate No. 108 itself; in short, if you find, as claimed by the state, that the number of shares recorded on stub No. 108 is only two, when it should have been ten (the number of shares mentioned in the certificate), then you will find the record to be a false one. Having found it false, you will then consider whether or not it was made in this county and made fraudulently, with an intent to defraud. If it was so made, and made, as before stated, while he was treasurer of said company, then your verdict should be that the defendant is guilty. “If, then, you find that the Union Publishing Company on February 9, 1894, and prior to and subsequent to that date, was a corporation; that during said time down to October 2, 1895, Joseph C. Moore was the treasurer thereof; that it was his duty as such treasurer to keep a record of the certificates of stock issued by said corporation ; that he made a false record of the certificate of said corporation, numbered 108, in this county, while he was treasurer as aforesaid; that he made this false record fraudulently, that is, with intent to defraud,— then you will render a verdict of guilty.” The defendant excepted “ to that part of the charge which relates to the organization of the corporation,— as to whether it is a legal corporation ” ; also to that part of the “ charge in regard to the defendant’s duty as treasurer of the corporation, on the ground that there was no corporation and consequently he had no duty ”; also “ to that part of the charge in regard to whether or not the entry is false, was fraudulent, on the ground that if certificate No. 108 was an over-issue he could not be guilty of any fraudulent intent as against the Union Publishing Company, — that is, that the means he had to accomplish the fraud were not adequate to bring about the result.” After the charge had been given, the defendant requested the court to charge the jury as follows: “ If you find that certificate No. 108 was an over-issue,— that is, that it represented stock in excess of-the amount which the corporation was authorized to issue and that the respondent knew it was an over-issue,— then it was an invalid and illegal certificate, its issuance was no fraud on the corporation, and the record of it on the stub, however false, was not made with the intent .to defraud the corporation. There could be no intent, in a legal sense, to defraud the corporation unless the means employed by the defendant had some tendency to produce that result; but the record of an invalid and illegal certificate would have no tendency to produce that result.” This request was denied, and the defendant excepted.