(202 P.) the bond and to prove that the bond was bogus, and that appellant knew it and received a part of the spoils from the fraudu lent transaction, citing in support of his contention State v. Pilling, 53 Wash. 464, 102 Pac. 230, 132 Am. St. Rep. 1080; State v. Ice & Fuel Co., 166 N. C. 366, 81 S. E. 737, 52 L. R. A. (N. S.) 216, Ann. Cas. 1916C, 456. See, also, note to the case of Commonwealth v. Johnson, 167 Ky. 727, 181 S. W. 368, L. R. A. 1916D, 267, at page 270, for note. But, in view of the holding that there was substantial evidence of the fact that the board did meet, we do not find it necessary to determine this question. intrusted to a board composed of different | state to prove that the board of loan comindividuals, that board can act officially missioners met in pursuance to law and passonly as such, in convened session, with the ed upon said bogus bond 254; that it was members, or a quorum thereof present. But only incumbent upon the state to allege that Mr. Sargent also testified to other facts which there was an intent on the part of Kelly would, however, authorize the jury to infer to defraud the state by the presentment of that there had been a meeting of the board on June 3, 1916. Hon. Frank W. Clancy, who was Attorney General at the time and a member of the board, had no distinct, personal, and independent recollection of the matter, but based his evidence wholly upon the recitals in the record, and testified that he would not have signed the record unless satisfied that it spoke the truth. Mr. O. N. Marron, state treasurer at the time, and the third member of the board, testified positively that there had been a meeting of the board on June 3, at which he was present when this matter in question was considered, and that it was considered by the board in its official capacity. Some two or three days later Mr. Marron was recalled to the stand and testified that he had been mistaken in his former testimony; that he was not even in the city of Santa Fé on June 3; that he left Santa Fé on the evening of the 2d of June, and conséquently all his former testimony as to what occurred was incorrect, but, as we shall see in a later portion of the opinion, it was for the jury to say whether his first testimony was correct or his subsequent testimony. Conse quently, if it be conceded that it was essential that there should have been a presenta tion of the claim to the board in formal session, there was substantial evidence before the jury of the fact that there had been such meeting, and such evidence is sufficient to support the verdict. [8] The Attorney General contends that, even if there had been no meeting of the board, the conviction could be sustained under section 1604, which provides: "In any case, when the intent to defraud is necessary to constitute the offense of forgery, or any other offense that may be prosecuted, it shall be sufficient to allege in the indictment an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded; and on the trial of such indictment, it shall be sufficient and shall not be deemed a variance if there appear to be an intent to defraud the United States, or any state or territory, county, city or precinct, or any body corporate, or any public officer in his official capacity, or any copartnership or member thereof, or any particular person." It is argued that, because the letter of transmittal by the Santa Fé Bank referred to indebtedness of the territory of New Mexico, and the board found that the evidences of indebtedness were of the county of Santa Fé, there was a variance. We fail to appreciate the force of this contention. The question for determination by the jury was whether there had been a presentation of bogus bond 254 to the board of loan commissioners for refunding under circumstances which constituted false pretenses. If bogus bond 254 actually accompanied the letter of transmittal, and was in fact the bond presented and intended to be presented by the letter, and the presentation of the bogus bond was at appellant's request, the fact that it was erroneously referred to as a bond of the territory of New Mexico in the letter would be wholly immaterial. [9] It is earnestly insisted by the appellant that there was no proof that the Santa Fé Bank was the agent of William G. Kelly, nor that the said Santa Fé Bank with its full knowledge and consent made any representation to the said board of loan commissioners as to bond 254, set forth in the indictment. Under this proposition it is first argued that there is no evidence by any officer of the Santa Fé Bank, or the Santa Fé Bank & Trust Company, or by any other person, that the Santa Fé Bank was the agent of William G. Kelly. The letter of transmittal stated that the presentation was made on behalf of Kelly & Kelly, of Kansas City, Mo. Appellant was a member of this firm. [10] It is argued that admissions, stateThat under this statute it is not incumbent ments, and declarations of an agent are upon the state to allege in the indictment not admissible to prove agency, and this that the false pretense was made or bogus proposition is correct. There must first be bond 254 was presented to the board of loan prima facie proof of agency before such commissioners, or to any particular person, declarations or statements are admissible for so that it got to the state with intent on the any purpose. While agency may not be part of appellant to defraud the state. Fur- proved by the extrajudicial statements ther, that it was not incumbent upon the and declarations of one pretending to act rect. "Q. But what that authority is or what it was you cannot recall now; that is, who vouched for this letter; that you cannot say? A. I believe I considered this letter a matter of form necessary for the collection of the items attached. "Q. Are you able to say, in view of the fact that you cannot recall the items, whether those items were attached and listed with the list mentioned in the letter was brought to you? Briefly, was the letter with the attached items and list brought to you at the same time? A. I can't say definitely. I think they were. as agent the fact of agency when it rests [ when this letter was presented to you, you acin parol, may be established on the trial by cepted it as a mere matter of collection busithe testimony of the agent himself. See note ness, assuming that it came into your hands A. That is corto the case of Dispatch Printing Co. v. Na- by some proper authority? tional Bank of Commerce, 5 A. R. C. 218. The note will be found on page 224. Many cases are cited in support of the proposition, and we know of nothing to the contrary. Another general rule may be stated, which is that the existence of an agency may be shown by, or inferred from, circumstantial evidence. See cases cited in note to the case of Frank v. Board of Education, 5 A. R. C. p. 155. The note will be found on page 161. With these two rules stated, it will be necessary to review the evidence to determine whether appellant's contention is correct. The direct evidence of agency for Kelly, if such has been established, is afforded by the testimony of Robert W. Lynn, who was cashier of the bank at the time of the presentation of the bond in question. Almost three years had elapsed between the time of the presentation of the bond and the trial. The cashier of the bank had handled many thousands of transactions in the interval. His memory was naturally not very clear on the facts and circumstances attending the presentation of the bond. He testified that some one other than himself, or any one connected with the bank, prepared the letter which accompanied the bond; that all he did was to sign the letter. Mr. Lynn testified on cross-examination in part as follows: "Q. You have no definite recollection of the manner in which this paper was transmitted, if it ever was transmitted, to the board of loan commissioners, have you-or to the treasurer? A. Do you want me to explain the regular routine it would go through? "Q. Under all these circumstances are you able to say that you had or had not any authority from Kelly & Kelly with reference to this transaction whatever it may be mentioned in the letter of June 2d, Plaintiff's Exhibit No. 6? A. I believe I did. "Q. From whom? A. From W. G. Kelly. "Q. Now, in reference to what was that? Can you tell by that letter? A. To the best of my memory Mr. Kelly instructed me to submit these items when called upon. "Q. But what items are referred to in this letter of June 2d you don't know? A. I have no definite knowledge of those items." Later Mr. Renehan made the following suggestion in the record: "If the court please the witness has testified he did not know this particular transaction, but that he had permission from Kelly to submit matters." Whereupon the witness followed: "I don't believe I so testified in my answer. I said I had instructions from Mr. Kelly on this particular matter. "Q. Yes; you may do that, but my question "Q. Now what particular matter did you refirst I would have answered. A. I have no def-fer to? A. To the items covered by that letinite recollection. "Q. Do I understand that your best recollection is that the paper reached your hands with the certificate by Mr. Edwards upon it already written and signed? A. I do not state that as a fact, but it is my recollection. "Q. Did Mr. Kelly, so far as you know, ever see this paper in your possession? A. I don't think he did. "Q. That circumstance that you had no written copy of this letter in your bank, does it not refresh your memory or enable you to say more positively how this letter came to be presented to you for signature? A. I can't state definitely. I can state in a roundabout way my idea. "Q. That would only be an impression, except what you have said with reference to your belief that Mr. Edwards gave it to you? A. I did not say it was my belief that Mr. Edwards gave it to me. "Q. I mean that his name was on it when you got it. You are able to say positively that you did not get this direct from William G. Kelly or from Kelly & Kelly? A. To the best of my belief I did not. "Q. Are you able to say, Mr. Lynn, that, ter. "Q. Now, what were those items? A. I don't know. I mean I have no definite description and can give no definite description. "Q. You don't know whether or not the letter ever reached the board of loan commissioners? A. I have no knowledge of that letter after it was sent by the bank to the office of the state treasurer." It will be observed that the witness testified that he had instructions from Kelly to submit the items covered by the letter, or submitted with the letter, when called upon, and that he had instructions from Kelly on this particular matter. We thus have direct evidence of the agent of the fact of agency, and in addition to this we have a circumstance which tends very strongly, indeed, to establish the fact of agency. In refunding the evidence of indebtedness submitted to the board by the Santa Fé Bank, acting through its cashier, the board issued four bonds, each of $1,000, and a state warrant in favor of Kelly & Kelly for $682. This state warrant (202 P.) represented the amount due under the trans-in question he submitted bogus bond 254 to action, less than $1,000. It was the practice the board of loan commissioners. In other of the state loan board to issue only bonds in words, then, having stated that whatever be $1,000 units, and to liquidate in cash the submitted with the letter of June 2d he was old amount. This warrant was received by instructed by Mr. Kelly to submit, we must Kelly and indorsed, and on the trial it was next determine whether the evidence shows admitted by the counsel for appellant that that bogus bond 254 was submitted with the he had received a warrant and obtained the letter of transmittal. First, we have the recproceeds. Such being true, it would be some-ord made by the board of loan commissionwhat difficult to understand why appellant ers showing that this bond was included in obtained the amount and appropriated it to the list of items accompanying the letter. his own use, and made no inquiry whatever Next, we have the testimony of O. N. Marron as to the reason for the payment. But it in which he says he was present at the meetis argued that some valid evidence of indebt- ing of the board; that bond 254 was preedness was presented, and that this warrant sented with the letter and included in the might have come from such indebtedness, list of indebtedness which accompanied the but, again, there is no showing that at that letter; that it was presented by the Santa time Kelly had before the board for consid- Fé Bank; that there was no territorial bond eration valid indebtedness amounting to the presented with the letter, but that county of face value of the warrant. There is another Santa Fé bond 254, the bogus bond in quescircumstance, and that is that Kelly knew tion, was the one presented. Then we have where the original, bond 187, from which the the testimony of William G. Sargent, state bogus bond was made, was located. By wire auditor, to the effect that on June 3, 1916, he requested the Capital City Bank of Santa a letter of transmittal from the Santa Fé Fé to buy this bond from a given bank in Bank was presented to the board, together New York City, which was done. The Santa with coupons and one bond, No. 254. Mr. Fé Bank had heretofore presented for Kelly Sargent further testified that there was no other matters to the board of loan commis- other letter of that date, or near that date, sioners for refunding. All these facts and from the Santa Fé Bank presenting any other circumstances and the direct evidence of Mr. evidence of indebtedness. It is true that the Lynn were amply sufficient to establish the effort of Sargent's testimony was greatly imfact that, whatever Mr. Lynn purported to paired by other evidence given by him to the present on behalf of Kelly & Kelly, he had effect that there was no meeting of the board, authority and directions from Kelly to do. and that he was testifying largely from the Appellant argues that at most the Santa Fé record as made by the board. Then we have Bank was simply a carrier, and did not act the testimony of Hon. Frank W. Clancy to in the capacity of agent, but Lynn's testi- the effect that at the time he signed the minmony shows that he was instructed by Kelly utes he was satisfied that they spoke the to submit the items to the state treasurer. truth; but, eliminating both the testimony This, if true, clearly established the relation of Mr. Sargent and Mr. Clancy, Mr. Marron's of principal and agent, and, as we have seen, testimony is sufficient to support the verdict, the submission of the bond for consideration if believed by the jury. His testimony being and refunding necessarily constituted the vital upon two points of the case, it is argued representation as to its legality and validity. by the appellant that it should be wholly It is further argued that the bank acted eliminated from the case, because, after tesfor Kelly & Kelly, a copartnership, and that tifying positively upon the two propositions William G. Kelly, appellant, personally may as we have seen, he was some two days have had no connection with the fraudulent later recalled to the stand and further crosstransaction; that, in order to render him examined, at which time he stated that he criminally liable, it would be necessary to had been mistaken in his former testimony; show personal participation; but this argu- that he was not in Santa Fé on June 3d, did ment, in view of Mr. Lynn's testimony where- not attend the meeting of the board, and in he stated that he had instructions from knew nothing about the matter about which William G. Kelly to submit these items, is he had testified. without basis upon which to rest. There is one other question in this case which requires consideration, and that is the inability of Mr. Lynn to recall the items which he submitted with the letter to the board of loan commissioners. We must begin with the proposition that, whatever he did submit, he was authorized by Kelly to do so. [11] The next question for consideration is whether the evidence shows that at the time The general rule is that the credibility of witnesses is in all cases a question for the jury, and it is said in 38 Cyc. 1518 et seq. that this rule has been applied where the testimony of a witness is contradicted or conflicts with testimony previously given by him or conflicts with the statements previously made by him, or is shaken on cross-examination, or his testimony is given under circumstances such as would naturally throw discredit on him. The jury here had the right, of deliberate falsehood. The Santissima Trini the Penal Code and section 832 of the Code of "But, since the enactment of section 714 of Civil Procedure, we must hold that a new rule obtains, and that the rule and policy of the law are to allow all testimony to go to and be weighed by the jury. By those sections, a person convicted of any crime is, notwithstanding, a competent witness in any cause or proceeding, civil or criminal; but proof of his fecting the weight of his testimony. In People conviction is allowed for the purpose of af if it so elected, to believe that Mr. Marron | the question of the credibility of a witness told the truth upon his first appearance upon was one for the jury, and that the only exthe witness stand, and that his testimony giv- ception to the rule was in cases where the en some two days later was untrue and un- discrepancies in the testimony were the result worthy of belief, or conversely; it had a dad, 7 Wheat. 339; Conrad v. Williams, 6 Hill, right to believe his later statements to the 444, 446; People v. Evans, supra; Wilkins v. effect that he was not present at the board Earle, 44 N. Y. 172; Pease v. Smith, 61 N. Y. meeting, was not in Santa Fé, and knew noth- 477; Place v. Minster, 65 N. Y. 80; People ing about the transaction previously testi- v. Petmacky, 99 N. Y. 415. fied to by him. Many instances occur upon the trial where witnesses gave contradictory testimony, but because of such contradictions we know of no rule which requires the court as a matter of law to withdraw the testimony, from the consideration of the jury. In the case of Bruger v. Princeton, etc., Ins. Co., 129 Wis. 281, 109 N. W. 95, it was contended that testimony of the plaintiff in the case should be disregarded because of prior in-v. O'Neil, 109 N. Y. 251, 266, the court had consistent admissions, but the court held that it was for the jury. In the case of Van Salvellergh v. Green Bay Traction Co., 132 Wis. 166, 111 N. W. 1120, which was an action for damages for personal injuries, the court said that the witness had testified first in a contradictory way as to whether she saw the car before it reached her, and upon crossexamination testified that as it approached she was looking in the general direction from which it was coming, but did not see or hear it; following this with contradictory evidence as to whether she did or did not forget about the probability of a car coming. Later she testified that she was looking away from the car. The court said: refused to charge that, if the jury should find that certain witnesses had in their previous testimony, in respect to the same matters. committed willful perjury, the jury should wholly disregard their testimony given on the trial. This was held not to be error, and Andrews, J., said, in reference to the force of section 714 of the Penal Code: 'It would be manifestly absurd, in the sight of this statute. now to hold that an unconvicted perjurer was an incompetent witness, whose evidence could not be considered by the jury, when, under the statute, if he had been convicted, his evidence must be received and weighed by the jury." Here the witnesses in testifying to facts, of which upon the perliminary examination they had denied knowledge, or which they had suppressed, may have been moved and deterred, as they swore they were, by motives of fright; and they appear to have been perfectly free from improper instigations, motives to swear falsely. At any rate, it was for the jury to decide whether they were to be be lieved or not." or "So, notwithstanding the contradictory charIn the case of Williams v. D., L. & W. R. acter of plaintiff's evidence it was proper to R. Co., 155 N. Y. 158, 49 N. E. 672, the action send the case to the jury on the subject of whether she was unmindful of the probability was for personal injuries, the plaintiff claimof a car approaching and did not see or hearing that he had been knocked off a freight one or look in the direction from which the car was coming, from the time she started south on the crosswalk till she was struck." In the case of People v. Chapleau, 121 N. Y. 266, 24 N. E. 469, appellant's counsel argued that the jury should not have been allowed to consider the testimony of two witnesses because they were perjured witnesses on their own showing. The court said: "If this were true, it would be no reason for any such instruction by the court to the jury." And further: car while going under a bridge. On the first trial of the case the plaintiff testified that he had passed under the bridge regularly for three weeks and frequently on top of a box car. The accident occurred in the daytime, the bridge was in plain sight, and that, knowing the train was about to pass under it, he turned his back to it and was going to the rear of the car when he was struck. The case was reversed on the ground that plaintiff knew the danger. On the second trial plaintiff testified that prior to the accident he had never passed under the bridge in question on top of the box car, and that he did not know it was a low bridge. The trial court, because of his previous testimo "The doctrine as to the treatment of testimony which is affected by contradictions and inconsistencies, or by evidence making its falsity manifest and establishing a conscious-ny, instructed a verdict for the defendant. ness in the witness of its falsity, has been The court said, after reviewing the authoriLuch considered in the books. Opinions have not always been in accord, but the weight of authority was in favor of the general rule that ties: "In this case the plaintiff gave testimony which, if credited by the jury, would have (202 P.) entitled him to a verdict. The trial judge anparently did not credit it, and it is quite likely that his view of the testimony was the correct one, but the difficulty with the situation is that, under our method of procedure, it was the province of the jury, not the court, to say whether his testimony was entitled to belief." 12. it would necessarily follow that the mere presentment of the bond, under the authorities heretofore cited, would constitute false pretense. [12] It is next argued that the court erred in setting cause No. 4212 (the case in question) for trial over the objection and protest of the defendant. The facts out of which this contention arose are as follows: Appel same offense under an indictment, No. 2172, and had been indicted at the same time for several other offenses of a like nature. This was some three or four months prior to the trial in question. There were some technical defects in the first indictment, or at least the state was doubtful as to the advisability of proceeding to trial under the first indictment. The cases had all been set for trial, and the state elected to reindict the defendant, which was done on the 31st day of March, 1919. The court set the case for trial on the next day. When the case was called to trial appellant filed objection and protest to proceeding to trial, claiming that, by the fact of the case having been set for trial on the next day, appellant was deprived of his constitutional right to be aided and assisted by counsel, and present witnesses in his defense. In 21 Ency. of P. & P., p. 975, it is said: The judgment was reversed. A similar case is that of Odell v. Weben-lant had been theretofore indicted for the dorfer, 60 App. Div. 460, 69 N. Y. Supp. 930. See, also, Voss v. Smith, 87 App. Div. 395, 84 N. Y. Supp. 471, and Murr v. Western Insurance Co., 50 App. Div. 4, 64 N. Y. Supp. It would follow from these authorities that, if the trial court was not authorized to take a case from the jury where the plaintiff had testified directly contradictory upon the first and second trials of the case, he would not be justified in so doing where the contradictory evidence was given upon the same trials. It thus follows that there was ample evidence by the testimony of Marron alone, if it were believed by the jury, to establish the fact that bond 254 was submitted, together with other evidence of indebtedness, with the letter of June 2. There was in addition the circumstantial evidence afforded by the fact that Kelly, without question, accepted the warrant issued for $682.20, which grew out of the presentation of the items accompanying the letter. We cannot appreciate the force of the argument advanced by appellant to the effect that the bond on its face was prima facie evidence of a valid and subsisting indebtedness of the county of Santa Fé, and that the question as to whether it was or was not was a question of law for the board to decide, and that false pretense could not be predicated upon a question of law. It was a question of fact for the board to decide whether the bond was a forged bond or otherwise. Of course, if it was a forged bond as a matter of law, necessarily there was no liability on the part of the county, but it certainly was a false pretense to hold out the bond to such a board as a genuine bond of the county of Santa Fé. It is next argued that there was no evidence that the defendant directly or indirectly procured the Santa Fé Bank, or any other person, to make any false pretenses to the board of loan commissioners, nor that the defendant had any knowledge thereof, or consented thereto. There were facts and circumstances in evidence from which the jury could properly infer that appellant knew that the bond in question was a spurious bond. There was evidence also that he had in his possession other spurious evidence of indebtedness against the county of Santa Fé in the form of bonds. If he procured the Santa Fé Bank to present this bond to the board of loan commissioners for refunding, "The trial court or judge is vested with a large discretion in the conduct of the trial of' causes, and an appellate court will not interpose to control the exercise of such discretion by a court of original jurisdiction unless there has been an abuse or a most unwise exercise thereof." In Wartena v. State, 105 Ind. 445, 5 N. E. 20, the court said: "It is nevertheless the undoubted province of the nisi prius courts, in the exercise of a sound discretion, to regulate the course of business during the progress of trials. Included in this is the right, during the term, in a proper way, to control its own sittings." That case had to do with the holding of night sessions over the objection of counsel for appellant, and in the light of the facts it was held the court did not abuse its discretion. In State v. Silvius, 22 R. I. 322, 47 The Atl. 888, three cases were set for trial for "The defendant having been duly notified that all the indictments against him were down for trial on the day in question, he was bound to be ready, or to show good cause why he was not." In the case of State v. Parry, 194 Pac. 864, there were three cases against the defendant, and the court first called the last |