State v. Glasgow, 1 N.C. 38, 1 Cam. & Nor. 38 (1800)

June 1800 · North Carolina Court of Conference

1 N.C. 38, 1 Cam. & Nor. 38

The State against James Glasgow.

Indictment for fraud and misdemeanor, in the words following, to wit:

AT a Court begun and held at the City of Raleigh, on the tenth day of June, in the year of our Lord one thousand eight hundred, and in the twenty fourth year of the independence of the State, before the honorable Spruce Macay, John Louis Taylor, and Samuel Johnston, Esquires, Judges of the Superior Courts of Law and Courts of Equity, of and in the said State, assigned by letters patent under the great seal of the said State, made to them the aforesaid Judges, and also to the honorable John Haywood as one of the said Judges, or to any two or more of them, by virtue of an Act of the general Assembly, entitled "An act directing the Judges of the Superior Courts to meet together to settle questions of Law and Equity arising on the circuit, and to provide for the trial of all persons concerned in certain frauds,” and to enquire (by the oaths of good and lawful men of the counties of Wake, Franklin, Johnston, Chatham, Orange and Cumberland, and any of them, and by other ways, methods and means by which they might or could the better know) more fully the truth of all offences and frauds committed within any district of this state, by any person or persons whomsoever, (who hath or have been duly apprehended, or shall or may be apprehended to answer the same, where such offences have been committed on or in the office of Secretary of State, or on or in the office of John Armstrong, of on or in the office of Martin Armstrong, in the fraudulently issuing, procuring, receiving or transferring land warrants, or in the fraudulently issuing, procuring or receiving grants on such warrants at any of the said offices; and of all frauds and offences of all and all manner of persons whomsoever, concerned in the commission of any of the said fraud's within any of the districts of this State, by whomsoever, or howsoever, had, done, perpetrated or committed, and by what person or persons, and to whom, how, and in what manner, and of all articles and circumstances howsoever concerning the premises, and any of them, and to hear and determine the same according to the laws of this State; and also the said Judges and any one or more of them, to enquire as aforesaid concerning all and singular the premises, and any two or more of them, to pass final sentence on such person or persons as shall be convicted upon such enquiry to be had as aforesaid according to the laws of this State; by the oath of Pleasant Henderson, &c. [here follows the names of the grand jury,] good and lawful men of the counties aforesaid, then and there duly empannelled, sworn and charged to enquire for the State. It is presented in manner and form as follows:

The jurors for the state upon their oath present, that by an act of the General Assembly, entitled, “An act to amend an act, entitled an act, for the relief of the officers and soldiers of the continental line, and for other purposes,” passed at Hillsborough on the eighteenth day of April, in the year of our Lord one thousand seven hundred and eighty-three, the Secretary of State was directed to issue a warrant of survey to each and every person entitled to land by virtue of the said act, entitled "An act for the relief of the officers and soldiers of the continental line and for other purposes therein mentioned,” for such quantities of land within the limits of the land reserved by the act last mentioned for the said officers and soldiers, as he, she or they by the said act should be entitled to; which warrant should be directed to Col. Martin Armstrong, who was appointed by the act first mentioned, Surveyor for that purpose, and was authorised and required to execute and return the same into the Secretary's office within the same time, and in the same manner as is required in other cases: and the said Secretary of State was required by the said act first mentioned, to make out grants for all surveys which should be thus returned to his office; which grants should be authenticated by the Governor, countersigned by the said Secretary, and recorded in his office.

The jurors aforesaid upon their oath aforesaid, do further present, that James Glasgow of the county of Greene, esquire, on the seventh day of January, in the year of our Lord one thousand seven hundred and eighty-six, and in the tenth year of the independence of the said state, at the said county of Greene, within the jurisdiction of their Honorable Court, then and there being Secretary of State of the said State of North-Carolina, and being then and there in the exercise of the said office, and being empowered and entrusted by law with the issuing of land warrants as aforesaid, unlawfully, wickedly, and fraudulently, and in violation of the duties of his said office, did make out a certain fraudulent writing, purporting to be a duplicate military land warrant, in favor of the heirs of Elijah Roberts, a private in the line of this State, for six hundred and forty acres of land, within the limits of the land reserved for the officers and soldiers as aforesaid, and he the said James Glasgow did then and there sign his name to the said writing as Secretary of State, and issued the same from his said office, as a true, good, and lawful military land warrant; when in truth and in fact, and he the said James Glasgow then and there well knew, that an original warrant had been previously made out and issued by him the said James Glasgow, as Secretary of State aforesaid, to the said heirs of the said Elijah Roberts, for his right as a private in the said line; and he the said James, had no right or authority by law to make out or issue any other such warrant to such heirs for said right, to the great damage of the state, &c.

The jurors aforesaid, on their oath aforesaid, so further present, that a certain James Mulherrin, afterwards, to wit, on the first day of January, in the year of our Lord one thousand seven hundred and eighty nine, and in the thirteenth year of the Independence of the State, under colour of a certain unlawful and fraudulent writing, purporting to be a duplicate military land warrant, and to be issued on the seventh day of January, in the said year One Thousand Seven Hundred and Eighty Six, by the said James Glasgow as Secretary of State, in favor of the heirs of Elijah Roberts, a private in the line of this state, for six hundred and forty acres of land within the limits of the land reserved for the said officers and soldiers aforesaid, did illegally and fraudulently procure and cause to be made in favor of him the said James Mulherrin, a certain, survey of six hundred and forty acres of land in Davidson county, on Hickman Creek, &c. [the courses of the land,] and did afterwards, to wit, on the first day of May, of the said year One Thousand Seven Hundred and Eighty Nine, fraudulently return the said survey, together with the said last mentioned illegal and fraudulent writing, purporting as aforesaid into the said office of Secretary of State, in order to obtain a Grant from the State to him the said James Mulherrin, for the said land last mentioned—he the said James Mulherrin pretending that a certain Elijah Robertson had assigned to him the said James Mulherrin, the said last mentioned illegal and fraudulent writing, purporting as aforesaid—so as to entitle him the said James Mulherrin to obtain the said Grant in his own name although he the said James Mulherrin did not produce to the said Secretary of State any legal evidence to prove, that he the said Elijah Robertson was entitled by law to the military land warrant of the heirs of the said Elijah Roberts, or that he the said Elijah Robertson had legally assigned the same to him the said James Mulherrin, so as to entitle the said James Mulherrin to obtain a Grant for the said land last mentioned to himself as aforesaid.

And the Jurors aforesaid upon their oath aforesaid, do further present that the said James Glasgow, on the eighteenth day of May, in the year of our Lord One Thousand Seven Hundred and Eighty Nine, and in the thirteenth year of the Independence of the State, at the said county of Greene, within the jurisdiction of this Honorable Court, then and there being Secretary of State, and in the exercise of the same office, and being entrusted by law with the making out Grants as aforesaid, well knowing that the said writing purporting to be a duplicate military land warrant, was illegal and fraudulent; an original warrant having previously been issued for the same right, by him the said James Glasgow as Secretary of State as aforesaid; and that the said James Mulherrin, had not produced to him the said James Glasgow as Secretary aforesaid, any legal evidence to prove that the said Elijah Robertson was entitled by law to the military land warrant of the said heirs of the said Elijah Roberts, deceased, or that the said Elijah Robertson had legally assigned the same to him the said James Mulherrin, so as to entitle the said James Mulherrin to receive a grant to himself for the said land last mentioned, unlawfully, fraudulently and wickedly, and in violation of the duties of his said office, did make out a certain fraudulent grant from the state, to him the said James Mulherrin, for the said six hundred and forty acres of land, situated and bounded as aforesaid, and did and then and there cause the said grant to be authenticated by the Governor, and did countersign the same himself as Secretary of State, and recorded it in his said office to the great injury of the state, &c.

The Jurors aforesaid, upon their oath aforesaid, do further present, that the said James Mulherrin, afterwards, to wit, on the first day of February in the year of our Lord one thousand seven hundred & ninety-three, and in the seventeenth year of the Independence of the state, under colour of a certain illegal and fraudulent writing, purporting to be a duplicate military land warrant, and to be issued on the said seventh day of January in the said year 1786, by the said James Glasgow, as Secretary of State as aforesaid, in favor of the heirs of Elijah Roberts, a private in the line of this state, for six hundred and forty acres of land, within the limits of the land reserved for the officers and soldiers aforesaid, did illegally and fraudulently procure, and cause to be made in favor of him the said James Mulherrin, a certain other survey, for six-hundred and forty acres of land lying on Mill Creek, on the south side of Cumberland River, and bounded as follows : beginning, &c. [corners of land] and did afterwards, to wit, on the eleventh day of May, in the said year of our Lord One Thousand Seven Hundred and Ninety-Three, fraudulently return the said survey, together with the said last mentioned illegal and fraudulent writing, purporting as aforesaid into the said office of Secretary of State, in order to obtain a Grant from the State to himself for the said land last mentioned; he the said James Mulherrin pretending that a certain Elijah Robertson had assigned to him the said James, the said illegal and fraudulent warrant, so as to entitle him the said James Mulherrin to obtain the Grant in his own name, although he the said James Mulherrin did not produce to the said Secretary of State, any legal evidence to shew that he the said Elijah Robertson was entitled by law to the military land warrant of the said heirs of the said Elijah Roberts, deceased, or that the said Elijah Robertson had legally assigned the same to him, the said James Mulherrin, so as to entitle the said James Mulherrin, to obtain a Grant for the land last mentioned to himself, as aforesaid, and although he the said James Mulherrin had previously, to wit, on the eighteenth day of May, 1789 aforesaid, obtained a Grant from the State to himself, for another trail of fix hundred and forty acres of land, before that time surveyed, in virtue of the said last mentioned illegal and fraudulent writing, purporting to be a military land warrant.

And the Jurors aforesaid, on their oath aforesaid, do further present, that the said James Glasgow, on the seventh day of January, in the year of our Lord One Thousand Seven Hundred and Ninety Four, and in the eighteenth year of the Independence of the State, at the said county of Greene, within the Jurisdiction of this Court, then and there being Secretary of State as aforesaid, and in the exercise of the same office, and being entrusted and empowered by law with the making out Grants as aforesaid, well knowing that the said last mentioned warrant as aforesaid, was illegal and fraudulent as aforesaid, an original land warrant having been previously issued for the same right by him, the said James Glasgow, as Secretary aforesaid; and that the said James Mulherrin had not produced to him the said James Glasgow, any legal evidence to prove that the said Elijah Robertson was entitled by law to the said military land warrant of the said heirs of the said Elijah Roberts, deceased, or that he the said Elijah Robertson had legally assigned the same to him the said James Mulherrin, so as to entitle him the said James Mulherrin to obtain a Grant to himself for the said land last described, and also then and there well knowing that he the said James Mulherrin, had previously obtained a Grant from the State to himself for another tract of land in virtue of the said last mentioned illegal and fraudulent writing purporting as aforesaid, unlawfully, fraudulently and wickedly, and in violation of the duties of his office, did make out a certain false and fraudulent Grant from the State to the said James Mulherrin, for the said six hundred and forty acres, situated and bounded as last aforesaid, and did then and there cause the said Grant to be authenticated by the Governor, and did countersign the same himself, as Secretary aforesaid, and recorded it in his said office, to the great detriment of the State, to the evil and most pernicious example of all others in the like case offending, and against the peace and dignity of the State.

To this Indictment he pleaded "not guilty,” and a Jury being empannelled and sworn to try the issue joined between the State, and the said James Glasgow, found him "guilty” in manner and form as he was charged in the bill of Indictment.

The Counsel for the defendant moved for a new trial upon several grounds, but relied chiefly on the ground of the verdict being contrary to the evidence. The Court declared they were satisfied with the verdict, and refused to grant a new trial. The Attorney General then prayed for judgment against the defendant, when Haywood for the defendant moved in arrest of judgment, and filed his reasons, to wit:

1. The caption does not state any legal authority in this Court to take the said indictment; the commission is stated to be made to the judges to enquire by the oaths of good and lawful men of the counties of and there is no law of this state which authorises an enquiry otherwise than by the oaths of freeholders.

2. The caption does not state the indicment to have been found by the oaths of freeholders.

3. There is no such commission as that stated in the caption; the commission by virtue whereof this Court sits, is a commission to enquire of offences committed in the office of the Secretary of State, or in the office of Martin Armstrong, or in the office of John Armstrong, in &c. but the commission described in the caption is to enquire of offences in the two former offices only.

4. The commission by virtue whereof this Court sits, is to enquire by the oaths of freeholders, whereas the commission by virtue whereof the indicment is stated so to be taken, is to enquire by the oaths of good and lawful men only.

5. The several offences in the indictment mentioned, are supposed to have been committed on the several times therein mentioned at the county of Greene, within the jurisdiction of this Court: not stating the said place to be within any of “the districts of the" state, whereby the Court might see that, the said offences were committed within the extent of their jurisdiction; and in fact at those several times, there was no such county as the county of Greene within any district.

In the first count of the said indictment, it is not stated otherwise than by implication, that any original warrant had issued before the issuing of the duplicate therein mentioned.

The original warrant to stated by implication, is not described nor set forth so as to shew to the Court that the duplicate therein mentioned is a copy thereof, and for the same lands and number of acres, and in favor of the same person, and for the same claim the duplicate is.

It is not stated in the said first count, that any injury did actually ensue the issuing the said duplicate.

The original warrant stated by implication, is stated to have been issued to the heirs for the right of the deceased, which, is repugnant.

The second count states that the said James Glasgow, well knew that the said warrant had been legally assigned to the said Mulherrin, so as to entitle him to receive a Grant: all that part of the sentence after the and or, being governed by the antecedent words well knowing, and not by the antecedent words had not; and therefore it was in law no crime to issue the said Grant to Mulherrin, and yet in contradiction to this plain consequence, it states the said Grant to have been issued unlawfully, fraudulently and wickedly.

It is not alledged in the second count, that Mulherrin did not produce evidence of his right, but only said although he did not, which is not any positive averment.

It states the issuing a grant, knowing that one original warrant had issued, not averring that a grant had issued upon the original, or that it was intended to issue upon the same, or that the original was in being.

In the last count it is not stated that a grant issued upon the same duplicate, that any former grant had issued upon, but only that it issued upon the duplicate mentioned in the last count.

In the last count it is not averred that a grant issued upon the duplicate therein mentioned, previous to the issuing the grant therein stated to be issued on the seventh day of January, one thousand seven hundred and ninety-four, but only the well knowing that Mulherrin had previously obtained a grant then issued, that stated in the said count, which is not any positive averment that two grants issued thereon.

The fraud therein stated is supposed to be committed against the State of North-Carolina, when at the same time it appears that the lands stated to be included within the description of the grant, were not the lands of North-Carolina, but of the United States, and that such fraud as is in the indictment supposed, is subject to the cognizance of the Courts of the United States, and consequently not of any Court in this State.

J. HAYWOOD.

Macay, Judge—

delivered the opinion of the Court.

As our opinions rest upon a few plain and obvious principles, it is unnecessary to enter into are elaborate examination of the cases cited in support of this motion. They are generally speaking good law, (though to this, the case cited from 1 Dyer 69, forms an exception) but we do not think they apply to the case under consideration.

With respect to all those reasons which proceed upon the ground that the expressions "good and lawful men” are inserted in the caption and commission, instead of the word “freeholders,” the answer is, that these words are to be understood according to the subject matter relative to which they are applied. In this instance, the words are used as forming an inquest; and an inquest formed of good and lawful men, must be of freeholders. Liberos et legales homines, are the terms which have always been used in the venire facias, and their legal import and signification is freeholders, without just exception. 3. Bl. Com. 351, 4. Bl. Com. 350. But even an objection to the caption of an indictment, founded in the omission of such words, ought not to prevail, especially if the indictment be in a Superior Court, and that which is omitted be in common understanding, implied in what is exqressed. 2. Haw. cap. 25, sec. 126.

The exception arising from the supposed error in setting out the commission, is not founded in point of fact, and has therefore been abandoned in the argument.

It is certainly an; undeniable rule, that the place where an offence is stated to have been committed, must appear to be within the jurisdiction of the Court which tried it; and the question for us to decide, is, whether the county of Greene does appear to be within the jurisdiction of this Court? This Court is authorised by the commission to enquire into any offences it describes, which were committed within any district of the State: the county of Greene is within a district of the state, and thence it necessarily follows, that it is also within the jurisdiction of this Court. The civil divisions of the territory of the state into districts, and their subdivision into counties, serve to define and limit the boundaries of jurisdiction allotted to the Superior Courts; in this respect they form an essential part of the public law, of which the Court can no more be ignorant than of the fact, that every county in the state is within some one of its districts. Thence, if an offence is said to be committed in a county, corresponding in name with one in the state, we must in reference to the extended jurisdiction of this Court, understand it to be one and the same. Would it not be fanciful and extravagant, to presume it to be out of the state? And why make the presumption that it has been ceded to Congress, when we know the said is otherwise? Besides, the offence is said to have been committed by the Secretary of State, being there (in the county of Greene) in the exercise of the said office: here again, in order to give effect to this objection, we must make another unreasonable presumption, that, the Secretary of State was exercising his office, and did issue from his office out of the State, this military land warrant. But, in truth, if it had appeared on the trial, that the offence was committed without the limits of the state, the defendant would have been discharged for want of jurisdiction. But if the place said is within the jurisdiction of the Court, a mistake in that point would not have been material, unless the place had formed a part of the description of the offence, and was not stated merely as a venue. 4. Bl. Com. 306. In fine, the reasoning upon which all the cases are founded, which were cited to prove the necessity of naming the ville, is obviously inapplicable to the present topic because the jury are summoned altogether from other counties, than that where the offence is said to have been committed. As to the objections made to the first count, it is to be remarked that the gift of the offence there stated, is the fraudulently issuing a duplicate warrant, knowing the original to have been previously issued. We do not think it necessary that a positive allegation should have been made, that the original was issued, but it was necessary that proof to that effect should have been made on the trial, and it accordingly was made. In principle, the same objection was made in Rex vs. Lauby, 2 Str. 904, and overruled. If a positive averment of the issuing the original warrant was unnecessary, it follows that the objection growing out of its not being particularly described, must also be invalid.

It is further objected, that no injury is stated to have ensued the act of thus issuing the duplicate.

If the act was done in the manner charged in the indictment, and as the jury have found it, the defendant has certainly committed a misdemeanor, which is indictable at common law. No rule of law requires, that a circumstance which forms no ingredient in the crime, should be stated in an indictment; and if a public officer intrusted with definite powers to be exercised for the benefit of the community, wickedly abuses, or fraudulently exceeds them, he is punishable by indictment, although no injurious effect results to an individual from his misconduct. The crime consists in the public example, in perverting those powers to the purposes of fraud and wrong, which were committed to him as instruments of benefit to the citizens, and of safety to their rights. If to constitute an indictable misdemeanor, a positive injury to an individual must be stated and proved, all those cases must be blotted out of the penal code, where attempts and conspiracies have been so prosecuted; yet they are numerous and authoritative. 3. Bac. 549, in notis, new edition.

The offence charged in the second count succinctly stated, is this, that the defendant issued a grant to Mulherrin upon a duplicate warrant, which had been previously issued to the heirs of E. Roberts, the right to which Mulherrin claimed under an assignment from Elijah Robertson. In order to fix this as a fraudulent act upon the defendant, it is deemed necessary by the drawer of the indictment, to describe the agency that Mulherrin had in the business; accordingly the count begins with stating the steps taken by him, in order to obtain the grant, pretending that Robertson had assigned the warrant to him, although he did not produce any legal evidence to prove either Robertson’s title or his assignment; and the offence as laid, consists in issuing the grant under all the circumstances of the application made by Robertson, and with a full knowledge of them. There are therefore repeated in the second branch of the count, and introduced by the participle “ knowing” which necessarily refers to the whole of them, and carries the sense throughout the whole paragraph which contains the recital of Mulherrin’s acts or omissions. The sense of the whole count aids the construction, and unless the former is separated from the latter part of it, it is understood upon reading thus—that the defendant well knowing that the duplicate was illegal, &c. well knowing that Mulherrin had not produced to him any legal evidence to prove that E. Robertson was entitled, &c. or to prove that he had assigned it to Mulherrin, fraudulently issued the grant, &c.

The four following objections to the second count, have been substantially answered in noticing the exceptions to the first. What concerns the essence of the crime and the gift of the charge, is laid with certainty sufficient to enable the defendant to know the offence wherewith he is charged, and to enable the Court to discern upon the record a crime punishable by law: In misdemeanors, where no particular technical phrases are appropriated to describe the act, nice and overstrained exceptions have not usually prevailed. 2 & 3 Bur. Rep. The last reason is founded upon the supposition, that the lands stated to be included within the description of the grant, were not the lands of North-Carolina, but of the United States, and it is thence concluded, that the fraud is exclusively cognizable in the courts of the United States. However the fact may be as to the title of the lands, the defendant was a public officer of the State of North-Carolina, and it was by virtue of that character alone that he was enabled to commit the offence charged in the indictment. All his acts wore the semblance of official duties, and but for the enquiry now instituted, might still retain the stamp of public authenticity. By his signature the faith of the state was pledged for the purity and honesty of the documents to which it was annexed, and her character, honor and dignity, required that it should never be pledged in vain. The security of the citizens’ rights, no less than the reputation of the state, was intimately connected with a faithful discharge of the duties appertaining to an office of such high importance; a confidence commensurate therewith, was reposed in him, and this, after patient examination, is found by the jury to have been abused in the particulars charged. To the jurisdiction of the date therefore, we think he is strictly and properly amenable.

Reasons overruled.