
    CRIMINAL LAW — FORGERY
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Winch, Henry and Marvin, JJ.
    Frank Leiblang v. State of Ohio.
    1. Affidavit of Prejudice Filed on Day of Tria!, too Late.
    An affidavit of prejudice filed on the day of trial and immediately before its start, is too late and may be disregarded by the trial judge.
    2. Absence of Accused's Endorsement on Forged Instrument, Immaterial Variance.
    The uttering and publishing of a forged instrument is complete when it is presented for payment, and the omission of defendant’s indorsement from the back of the copy of the instrument as set out in the indictment is an immaterial variation as the offense charged was complete when the indorsement was made.
    3. Trial of Accused when Absent.
    If after the trial of a criminal cause has commenced, the prisoner absents himself, the trial may continue whether the case be one of felony or misdemeanor, though sentence may not be pronounced in the prisoner’s absence, except in cases of misdemeanor.
    Error.
    
      Anthony Heiding and Brady & Bowling, for plaintiff in error.
    
      F. M. Stevens, for defendant in error.
   HENRY, J.

The plaintiff in error was convicted of uttering- and publishing a forged instrument. An affidavit of prejudice was filed against the trial judge, who disregarded it upon the ground that it was filed immediately before the trial began and on the same day, and was, therefore, too late. Under the recent amendment of the statute in that behalf, we think the trial court committed no error in discharging the affidavit.

It is said that the prosecuting attorney was guilty of misconduct in his opening statement in intimating that the prisoner was guilty of attempted blackmail or extortion in connection with the offense for which he was tried. His statement was challenged at the time by the prisoner’s counsel but the court overruled his objection, stating that he could not at that stage of the case determine whether evidence of these collateral matters would or would not be competent. The proscuting attorney seems to have been acting in good faith upon the supposition that the matters in question were material, but later in the trial when he attempted to introduce evidence thereof, such evidence was excluded. The trial judge, moreover, carefully instructed the jury to consider only the evidence introduced, and to disregard all statements made by the prosecuting attorney with regard to evidence offered but not admitted. In this, we find no prejudicial error.

Another error complained of is that the forged instrument set forth in the indictment did not contain the endorsement of the prisoner’s name, which appears on the back of the instrument introduced in evidence. We think there is no material variance in this respect. The evidence shows that before the forged check had been endorsed the prisoner sought to obtain money thereon by presenting the same and requesting to have it cashed. This, of itself, constitutes an uttering and publishing. The prisoner was told when he thus presented the check, which was payable to his own order, to write his name on the back of it. He turned and went a few feet away to a desk and came back after a few moments with what purported to be the same cheek bearing his signature. On this state of facts it is further complained that this endorsement was determined by the court to afford a sufficient basis of comparison to admit of the introduction’ in evidence of a letter alleged to have been written by Leiblang, and to authenticate his handwriting there.on, another writing proved to have been made by the prisoner was also used as a basis of comparison. It is objected, however, that inasmuch as no one actually saw the prisoner endorse the check, the circumstantial evidence that the endorsement was written by him was not sufficiently positive to make it a proper basis of comparison. We think that circumstantial evidence may, and in this case does suffice to lay proper foundation whereby one writing is so authenticated as to authorize the comparison therewith of another specimen of handwriting to show identity or diversity of authorship.

It is further complained that the court committed error in proceeding with the trial when, after the evidence was all in, the prisoner failed to appear at the opening of court on the morning of the last day of the trial.

Section 7301 Rev. Stat. of Ohio provides:

“A person indicted for a misdemeanor may, upon his request in writing, subscribed by him and entered on the journal, be tried in his absence, or by the court; no other person shall be tried unless personally, present; and if a person indicted escape or forfeit his recognizance, after the jury is sworn, the trial shall proceed, and the verdict be received and recorded; if the offense charged is a misdemeanor, judgment and sentence shall be pronounced as if he were personally present; and if the offense charged is a felony, the case shall be continued until the convict appears in court, or is retaken. ’ ’

It is insisted that this being the case of felony there is no authority for going forward with the trial during the prisoner’s absence, and that the only course open in this event is indicated by the words “the case shall be continued until the convict appears in court, or is retaken.”

We think that counsel misinterprets this section. The true intent and meaning thereof is, that in the prisoner’s absence a trial may not be commenced and carried on in case of felony; that it may be commenced and carried on in case of misdemeanor, upon the prisoner’s request in writing, subscribed by him and entered on the journal. If, after the trial is commenced the prisoner absent himself the trial may continue whether it be a case of felony or misdemeanor. Sentence, however, can not be pronounced in the prisoner’s absence, except in ease of misdemeanors.

It is further contended that even with this interpretation of the statute, the trial was erroneously proceeded with, inasmuch as it did not appear that there had not been an escape or forfeiture of recognizance. It is suggested that his absence may have been due to sickness, accident, or other cause beyond his control. This, however, would not be sufficient to prevent a forfeiture of his recognizance, although it might justify the setting aside of such forfeiture thereafter. The transcript here shows that the recognizance was duly forfeited on the same day that the bill of exceptions shows the objection to the further prosecution of the trial was made and overruled. We think there was no error in submitting the case to the jury and receiving their verdict under these circumstances, in the defendant’s absence.

No other error in the record is alleged, and we find none. Judgment is therefore affirmed.

Winch and Marvin, JJ., concur.  