Opinion of the Court.

money, and paid the same over to J. W. Wiltberger, and received from him said deed and filed the same for record, and received the same from the recorder's office, and delivered the same, together with an abstract of the title to said five lots, to said Hoag, but wholly failed and neglected to inform or notify her of any defect in her said title; and that she was led to believe, and did believe, from the conduct of said Gibbons on that occasion, that she acquired a perfect title by said deed; that after such purchase, said Gibbons, as her agent, paid taxes on said lots for several years; that in 1868, pending the Andrews foreclosure suit, said Gibbons stated to said Hoag, then a resident of Cincinnati, that her title was involved, and that her interests ought to be represented, and that she, believing said statements, retained said Gibbons to represent her, and paid him $100; and said Gibbons agreed with her that he was to be paid $100 more when her title to said five lots was perfected; that Gibbons proceeded to Chicago and examined the papers and files in said suit, and shortly returned and represented to her that her title to said lots was perfected by the decree of strict foreclosure rendered in said suit."

If the defence which he now seeks to interpose had any existence, it was his duty to notify his client fully and unreservedly. If the proceedings which he claimed perfected appellee's title did not, in fact, do so, it was his duty to so notify her.

It is not to be tolerated that an attorney shall advise or encourage a client in investing in a bad title, and himself, afterwards, buy up the better title and assert it as against his former client. Such a practice would open a door to endless wrongs and villainies, and bring great and just reproach upon the profession.

Story says, in his work on Equity Jurisprudence, sec. 219: "If an attorney employed by the party should designedly conceal from his client a material fact or principle of law, by which he should gain an interest not intended by the client,

Syllabus.

it will be held a positive fraud, and he will be treated as a mere trustee for the benefit of his client and his representatives; and in a case of this sort it will not be permitted to the attorney to set up his ignorance of law or his negligence as a defence or an excuse. It has been justly remarked that it would be too dangerous to the interests of mankind to allow those who are bound to advise, and who ought to be able to give good and sound advice, to take advantage of their own professional ignorance, to the prejudice of others. Attorneys must, from the nature of the relation, be bound to give all the information which they ought to give, and not be permitted to plead ignorance of what they ought to know."

The park commissioners are purchasers having constructive notice of appellee's rights, and their claim, consequently, must yield before her's.

The decree below is affirmed.

Decree affirmed.

FRANK FOX

v.

THE PEOPLE OF THE STATE OF ILLINOIS.

Filed at Ottawa May 18, 1880.

1. FORGERY-intent to defraud person named must be proved. It is necessary to prove, on the trial of one indicted for forgery, an intent to defraud the person named in the indictment as intended to be defrauded. This intent may be clearly shown by proof of uttering the forged instrument, and if not passed, circumstantial evidence.

2. SAME-admissions of other forgeries. Evidence of statements or admissions in reference to the note for the forgery of which the person accused is being tried are admissible, but what he has said of another note said to have been forged is not admissible to prove the charge on which he is being tried. 3. Where the statements or admissions of an accused are improperly admitted in evidence, it is equally improper to refer to them in an instruction. 4. SAME-presumption of intent to defraud. There is no presumption of law of an intent to defraud from proof that the accused has actually forged a note

95 71

148 504

Brief for Plaintiff in Error.

on another person when he has not uttered the same, but this is a question of fact for the jury to find from the evidence, as, his possession of the same and the surrounding circumstances. The possession of the forged paper, while evidence tending to prove a fraudulent intent, is not conclusive. The circumstances may clearly repel any presumption of guilt.

5. The merely falsely making of a note without the intent to defraud some one, does not constitute the crime of forgery.

6. CRIMINAL LAW—instruction as to flight. It is error to instruct a jury, on the trial of one for an alleged crime, that his flight is evidence of guilt. It is only evidence tending to prove guilt. Nor should the court tell the jury that if flight was proved, it must be satisfactorily explained consistent with the innocence of the accused. This might be understood as requiring him to prove an innocent purpose beyond doubt.

7. SAME-proof of good character. The court has no right, by an instruction, to tell the jury that proof of good character on the part of the accused constitutes a complete defence against the charge. That is a question for the jury and not for the court, and they have the right to consider all the evidence, and from it find the facts.

8. An instruction that a defendant in a criminal case has offered no further evidence on the question of his good character than he has, should not operate to his prejudice, would be unexceptionable.

9. CRIMINAL PRACTICE-comments of State's attorney outside of the evidence. It is the duty of the court, on the trial of one when his life or liberty is involved, to stop the State's attorney in his closing argument, when he assumes facts not proved and urges them for a conviction. Such conduct is unfair to the accused, and he should be protected by the court. When such unfairness is gross a judgment of conviction, in a doubtful case, should be reversed.

WRIT OF ERROR to the Circuit Court of Henry county; the Hon. JOHN J. GLENN, Judge, presiding.

Mr. O. F. WOODRUFF, for the plaintiff in error:

1. The verdict is contrary to the law, and is wholly unsupported by the evidence.

2. In cases where the indictment sets forth the instrument said to be forged, with the usual and necessary allegations of intent to defraud, it is indispensably necessary to prove the intent to defraud upon the trial, and it is error to admit the declaration of a prisoner in reference to any other than the one set forth in the indictment, unless such other note be produced in court

Brief for Plaintiff in Error.

and proved to be a forgery. Especially is it error to compel a prisoner to testify as to what he said in reference to a note not before the court, and concerning the existence of which there is no proof. The People v. La Grille, 1 Wheeler's Crim. Cases, 415; Regina v. Cook, 8 Car. & Payne, 906; Regina v. Hill, 8 id. 730; Upfold v. Leit, 5 Esp. 100; Regina v. Millard, Russ. & Ryan, 245; 2 Russell on Crimes, 710; Roscoe's Crim. Ev. 91.

3. In order to constitute any crime there must be an act as well as an intent. The mere having of a forged instrument, or the establishing by proof the fact that the prisoner wrote the name to the note without authority, are not such facts of themselves, unsupported by proof of an intent to defraud, as would warrant a conviction for forgery. Commonwealth v. Goodenough, Thacher's Crim. Cases, 136; Commonwealth v. Whitney, id. 200; Rex v. Shukard, Russ. & Ryan, 200; Rex v. Jones, 1 Leach, 367; Rex v. Hodgson, Dearsley & Bell C. C. 3; Rex v. Ogden, 6 Car. & Payne, 611; Regina v. Page, 8 id. 844; Miller v. State, 51 Ind. 405; Roscoe's Crim. Ev. 508-511; 2 East's Pleas of the Crown, 853, 855; 2 Bish. Crim. Law, secs. 563, 565.

4. It is the duty of the presiding judge, during a criminal trial, to protect the prisoner from unreasonable and unfair statements and arguments of the prosecuting officer. If he fails to do so, and the impropriety is gross, a new trial should be awarded. State v. Williams, 65 N. C. 505; State v. Smith, 75 N. C. 306.

5. Where the feelings and reputation of an honest and upright citizen are involved, his good name will always preponderate in favor of his innocence in a doubtful case. Green v. Cornwell, 1 City Hall Recorder, 11.

In criminal trials evidence of previous good character is proper to go to the jury, not only in those cases where a doubt exists upon the other proof, but even to generate a doubt as to the guilt of the accused. Felix v. State, 18 Ala. 720;

Opinion of the Court.

Fields v. State, 47 id. 603; Remsen v. The People, 43 N. Y. 6-9; Cancenei v. The People, 16 id. 506.

To refuse to instruct the jury on the question of good character seems equivalent to holding, or at least to leaving the jury to infer, that the evidence which was lawfully put into the case was immaterial after it was in. The People v. Garbuilt, 17 Mich. 9-26; Hamilton v. The People, 29 id. 195; Campbell v. The People, 34 id. 351.

Mr. THOS. E. MILCHRIST, State's Attorney, for the People:

The act of forgery itself is sufficient to imply an intent to defraud, unless it appears that no fraud whatever could have been effected by the forgery. 2 Arch. Crim. Law, 1602; State v. Woodward, 20 Iowa, 553; 2 Whart. Crim. Law, sec. 1453; 2 Russell on Crime, 779; Moore's Crim. Law, sec. 598.

1

And the law presumes an intent to defraud the person who would have to pay the instrument if it were genuine. Whart. Crim. Law, sec. 712; 2 id. secs. 1453, 1455; 3 Greenl. Ev. 93; Commonwealth v. Stephenson, 11 Cush. 481; State v. Woodward, 20 Iowa, 553.

And this, although the intention to defraud the person in particular who would have to pay the note, did not enter into the prisoner's contemplation. 3 Chitty's Crim. Law, 1039; 3 Greenl. Ev. 93.

As to the improper remarks of the State's attorney, if they were all made as imputed, there was no objection made to them, as there was in the cases cited from North Carolina.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Plaintiff in error was indicted at the October term, 1879, of the Henry circuit court, for forgery. The indictment contained four counts. The State's attorney entered a nolle prosequi to the third and fourth, and on a trial defendant was convicted on the first count, and his confinement in the penitentiary was fixed at three years. A motion for a new trial