State v. Hand, 6 Ark. 169 (1845)

Oct. 1845 · Arkansas Supreme Court

6 Ark. 169

State vs. Hand.

'The general rule that writs of error may issue to any final judgment of the circuit courts, must be restricted, in its application, to cases in which this court has power to do justice between the parties, by correcting the errors appearing upon the record.

'Where a person has been regularly tried for an offence, and acquitted by a jury, this court cannot subjecthiro to a second trial, on the same charge, by a reversal of the judgment ot the court upon the verdict.

■(Where the defendant has thus been tried, and discharged, this court will not adjudicate points, raised by a hill of exceptions, and broughtup, by writ of error, on the part of the State.

•Such adjudication would be similar to the determination of abstract questions of law.

Writ of error .to the circuit court of Pulaski county.

'This was an indictment against Hawkins Hand, for passing a ‘forged certificate of deposit, determined in the circuit court of Pulaski county, -at the May term, 1S44, before the Hon. J.^jp Ceen-denin, one of the circuit judges.

There were two -counts in the indictment. The first charged •that the defendant ‘attempted to pass a forged certificate of deposit, •as follows:

“Received of John Drenn-ing six hundred and fifty dollars, on •deposit for Hawkins Hand, .of Mississippi, in gold, the same to be ■paid-on the'presenting-of this receipt .to the Cincinnati Bank, Ohio.

April the 13th, 1844: James Akmsteong, Gash.”

In the second count,- the defendant was charged with having ^passed the certificate, setting it out as above.

He pleaded not guilty; was regularly tried by a jury, and acquitted.

From a bill of exceptions, taken by the State, it appears that, .during the trial, the Attorney General offered to read in evidence to the jury, as the forged certificate of' deposit which the defendant was charged with attempting to pass, and passing, an instrument corresponding in all respects with the one set out in the indictment, with'the exception that the name “Hawkins Hand” was written across the face of it. On account of this variance, the defendant’s .counsel moved to exclude it from the jury; which the court did as to the second count, and permitted it to be read to sustain the first; to which the Attorney General excepted. The court also excluded all the evidence as to the passing of the instrument, which was excepted to on the part of the State. The bill of exceptions sets out all the testimony, but the manner in which this court disposed of the case, renders it unnecessary to report it.

The State brought the case to this court, by writ of error.

Watkins, Att’y Gen.

The name across the face of the writing formed no part of it. Hess vs. The State, 5 Ohio Rep. 8. Commonwealth vs. Ward, 2 Mass. Rep. 897. Commonwealth vs. Bailey, 1 Mass. 62. Same vs. Stevens, 1 Mass. 203. Commonwealth vs. Searle, 2 Binney 332. - The name across the face was proved to be the genuine signature of the defendant, and consequently did not .constitute a part of the counterfeit instrument.

In ruyindictment for forging an acceptance of a bill of exchange, •to set.dut the tenor of the bill will suffice without copying the acceptance upon the face of it. Reading’s Case, 2 Leach 590. 2 East. P. G. 19, s. 56, p. 931. 2 Russell Grim. L.p. 364.

An offender may be convicted under the Penitentiary Code of ■this State for passing or attempting to pass any forged instrument, •whether the corporation, company or person exists or not.

The payee of a note may endorse it by writing his name across •the face. The construction will depend on the intent of the parties at the time. Gibson vs. Powell, 6 Howard 60.

E. H. English, for defendant,

moved this court to dismiss the case, on the following grounds.

The defendant was regularly tried for the offence, charged in the 'indictment, by the jury, and acquitted. The verdict and judgment •in his favor, will forever shield him from another trial, for the same •offence. ’‘No person shall, for the same offence, be twice put in jeopardy of life or limb.” Dec. of Rights, sec. 12.

Whatever might be the judgment of this court on the points raised by the bill of exceptions, it could not affect the defendant’s claim to protection under his acquittal. After a regular discharge upon the merits, the defendant cannot be reached again, either by a new trial, or reversal of the judgment, by a higher tribunal. There are neither precedents nor reason to justify it. T.he province of this court is to deéide cases for the correction of errors, and the furtherance of justice, and not to determine abstract points of law, which can effect no case before it. If they were to reverse the judgment of the court below, in this case, the State would not thereby be benefitted. if an offender has been wrongfully rescued from the hands of public justice, they cannot again place him under her lash. • ,

The Attorney General might as well have brought up for the judgment of this court, a string of abstract points, unconnected with any case, and the court might with the same propriety adjudicate them. The impolicy is manifest in either case.

Oldham,. J.

delivered the opinion of the court.

The defendant was indicted and put upon his trial in the circuit court of Pulaski county, and the jury regularly returned a verdict of not guilty, and judgment' was rendered in his favor. During, the progress of the trial, several exceptions were taken oiúthe part of the State, and now for the purpose of reversing the judgment* she has.brought the case into this court by writ of error. The. defendant has interposed his motion to dismiss the suit.

It is a general rule that a writ of error may issue to any final judgment of the circuit courts, but this rule must be restricted in. its application to those cases in which this court has the power to-do justice between the parties, by correcting the errors appearing-, upon the record. Over this case the court has no such power. If the State was injured by the judgment of the circuit court, we cannot repair the injury by depriving the defendant of the advantages thereby acquired by him, or by a reversal of the judgment again subject him to another trial. The constitution has thrown over him her protective mantle, and shields him from all future, prosecution for the offence with which he stood charged. When the jury returned their verdict in his favor he was finally and forever discharged; he was released from custody, and the control of the court, and cannot be brought into this court to show cause against the reversal of the judgment in his favor. The verdict of the jury was a final and conclusive determination of the controversy. By reversing the judgment we can neither repair the injury alleged to have been inflicted upon the State,- nor deprive the defendant of the advantages and benefit of the verdict. In truth,, the questions sought to be raised in this casé- are- mere abstract questions, without any cause legally existing upon which the de--cisión of this court could have effect. We are riot inclined to determine questions so presented. The object of this court is to determine cases legally existing and properly brought before it; to do justice between the parties by affirming the-judgment, if there be no error apparent upon the record, or if error exists, by reversing the judgment and granting the injured party such redress as the circumstances require and the law will allow.

When a person, is once tried and acquitted by- a jury, -upon a criminal charge, the finding- of the jury and the judgment of the court thereon, is a determination of the prosecution forever, and' such judgment and finding should be suffered to remain unimpeach-ed and in'full force as evidence of such acquittal, and for the protection of the party against any future prosecution for the same-offence.

For these reasons let the case be dismissed.