State v. Stanton, 23 N.C. 424, 1 Ired. 424 (1841)

June 1841 · Supreme Court of North Carolina
23 N.C. 424, 1 Ired. 424

STATE vs. JAMES STANTON.

On the trial of a bill of indictment for forgery, the person, whose name is charged to have been forged, and whose interest, supposing the to be genuiue, is aifected by it, either asan obligation or acquittance, is not, while the instrument remains in force, a competent witness to prove the forgery.

"Where a defendant is acquitted upon one count in an indictment, and convicted on another, and appeals, if a venire de novo be awarded, it must be to re-try the whole case.

In an indictment under the act of Assembly, JRev. St. c. 34, s. 21, for “chewing forth in evidence” a forged instrument, although “the shewing forth” must be proved to have been in a judicial proceeding, yet it is not necessary to state in the indictment in what suit or judicial proceeding it was “shewn forth.” It is sufficient to state the charge in the words of the act of Assembly.

St is generally proper and necessary to describe in an indictment an of-fence, created by statute, in the words of the statute. But there are a few exceptions to this rule.

The cases of the State v. Britt, 3 Bev. 122, State v. Johnson, 3 Dev. 360, cited and approved. '

This was an indictment for forgery, tried at Spring Term, 1841, oí Johnston Superior Court of Law, before his Honor Judge Settle, and brought up to this Court, on appeal by the defendant, from the judgment of the Court. The indictment was in the following words, viz:

State of North Carolina, \ Superior Court of Law, Johnston County. ) Fall Term, 2839.

The jurors for the State, upon their oath present, that James Stanton, late of the County of Johnston, in the State of North Carolina, on the twenty-eighth day of May, in the year of our Lord, one thousand eight hundred and thirty, nine, with force and arms, in the County of Johnston aforesaid, feloniously did wittingly and falsely forge, make and counterfeit, and did cause and procure to be falsely made, forgedand counterfeited, and did willingly act and assist in the false making, forging and counterfeiting, a certain re*425ceipt, which said false, forged and counterfeited receipt is as follows, that is to say, Received of Jas. Stanton, dollars and ninety-one cents, this 22d day of May, 1838, in part of the rent of land that I rented to him for the year 1837.

W. Whittey.

with intention to defraud one Willie Whittey, against the form of the statute in such case made -and provided, and against the peace and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further say and present, that the said James Stanton, after-wards, to-wit, on the day and year aforesaid, in the County of Johnston, aforesaid, feloniously did utter and publish as true, and shew forth in evidence, a certain other false, forged, and counterfeited receipt, which said last mentioned false, forged and counterfeited receipt is as follows, that is to say, Received of James Stanton, thirty-five dollars and ninety-one cents, this 22d day of Ma}^ 1838, in part of the rent of the land that I rented to him for the year 1837.

W. Whittey.

with intention to defraud the said Willie Whiitey, he, the said James Stanton, at the time he so uttered and published, and shewed forth in evidence the said last mentioned false, forged and counterfeited receipt as aforesaid, then and there well knowing the same to be false, forged and counterfeited, against the form of the statute in such case made and provided, and against the peace and dignity of the State.

J. R. J. Daniel, Attorney General.

To this indictment, the defendant pleaded not guilty. On the trial, Willie Whittey, who had signed the receipt, which was charged to have been altered, was offered-as a witness in support of the prosecution. He stated, that he held the obligation of the defendant for thirty-five dollars, given for the rent of a tract of land for the year 1837; that the defendant had paid him ten dollars in part of his obligation, for which the receipt, alleged to have been forged, was given ; and that he had warranted the defendant for the balance; that this warrant had been tried before a magistrate, and judgment given against him for the costs, from which judgment he had appealed to the County Court, where the mat*426ter was still pending. The counsel for the defendant then objected to the competency of this witness. The Court overruled the objection, and admitted the witness to be examined as t0 the receipt, reserving the question on a motion for a new trial, should the defendant be convicted. The witness proved the execution of the receipt for ten dollars, and that it had been altered as it now appeared, since he signed it; that it was in its present state when he first saw it, after its execution, in the possession of the defendant, who exhibited it on the trial before the magistrate. The justice before whom the warrant was tried, was also examined as a witness for the State. He testified as to the warrant, the trial, and the offering of the receipt by the defendant. The jury found the defendant not guilty on the first count, but guilty on the second count, as charged in the indictment. A rule was granted on the Attorney General, to shew cause ■why a new trial should not be'granted, on acconnt of the admission of improper evidence; and a motion was also made in arrest of judgment. His Honor discharged the rule for a new trial, and intimated an opinion in favor of the motion in arrest of judgment. But he said, as it was important to have both questions settled, he should disallow the motion and give judgment, pro forma, against the defendant. From this judgment, the delendant appealed to the Supreme Court.

J. H. Brycm for defendant.

The rule to exclude as incompetent, on the trial of an indictment for forgery, the testimony ofhim whose obligation or acquittance was alleged to be forged, is a well settled rule of the common law. Rose, on Crim. Ev. 105, 409. 2 East’s Crown Law, 993. It required an act of Parliament to alter it in England, asíate as 9th Geo. 4th.

2ndly. It was not sufficient to set forth in the second count generally, that defendant shewed forth the receipt in evidence, fyc., if should have been stated hoto, when and where the receipt was shewn forth; before wliat judicial tribunal. *427and in what judicial proceeding. The Court ought able to see from the indictment itself, that the instrument . . ' was offered m evidence before a competent judicial tribunal. State v. Fitzgerald, 1 Dev. 6p Bat. 408. State v. Britt, 3 Dev. 122. Slate v. Baldwin, 3 Dev. 197. State v. Enloe, 4 Dev. Sr Bat. 376.

Attorney General in reply,

contended as to the 1st point, That the same rule should apply in this case, as in analogous cases ; that the true criterion in regard to the interest necessary to render a witness incompetent was, that the verdict might be given in evidence for or against him. And he cited" Hawk. 646. 4 Blac. 330. State v. Hassell, Fay. 55. Fhil. Ev. 38, 39, 43. State v. Coulter, 1 Hay. 3. Farrel v. Perry, 1 Hay. 2. Porters. Mc'Lure, 1 Hay. 360. State v. Wyatt, 2 Hay. 56. Archbold on Grim. Plead. 146,147, King v. Neioland, Leach 311. King v. Ponsonby, Leach 322. King v. Waite, 1 Bingh. 121. King v. Peacock, By. S/' Bus. 278. King v. Moll, By. $• Bus. 436. Fhil. Ev. 88, 89, 90. People v. Howar-d, 4 Johns'. Bep. 296, 302, 303.

2ndly. As to the motion in arrest judgment, he insisted that the second count in the indictment was sufficiently certain ; that it contained enough to disclose to the defendant the offence with which he was charged ; that the words “shew forth in evidence” had been judicially defined in State v. Britt, 3 Bev. 122, and that certainty to a common intent was sufficient, 1 Chit. Grim. Law, 236, 239. Russell on Crimes, 406. Archbold Crina. PI. 44,-54.

Ruffin, C. J.

It has not been denied in the argument, • that at common law it was a settled rule of evidence in England, that a person, whose name had been forged,.and whose interest supposing the instrument to be genuine, was affected by it, either as an obligation or acquittance, was not, while the instrument remained in force, a competent witness to prove the forgery. Gilb. Ev. 124. Phil. Ev. 88. 2 Strange, 728. 2 East’s P. C. 993. But it was said in the argument, that the rule was originally adopted upon the notion, now admitted to be erroneous, that the witness would, by procur*428jng the conviction of the accused, be discharged himself j an<^ ^ence it was urged that we should not enforce the rule itself. Certainly parties injured are generally competent to prove £]16 crime. But the case of forgery, though an anomaly, is certainly an exception. Although it may have been, admitted inadvertently, and upon a wrong principle, yet, as a Court administering the common law, we have no authority to abrogate a rule or an exception so perfectly settled in that law. In England, the Courts, though not satisfied with it, could not alter the rule; and it became necessary for the Legislature to interpose. St. 9, Geo. 4, c. 32. In like manner, we think legislative authority is alone competent here to change the law, which our ancestors brought with them, upon their emigration, and which became as obligatory on the judicial tribunals they established, as it continued to be on those they left behind. Besides, there have been, as it is well known, many cases in which such witnesses have been held incompetent in this State, and we feel bound not to depart from them; and therefore deem the judgment erroneous and reverse it.

As this is done at the instance of the prisoner, the former verdict must be set aside entirely, and a venire de novo awarded, to re-try the whole case.

Upon theform of the indictment, the Court would perhaps not be bound now to decide, since the other point disposes of the case here. But as the point may be material upon the next trial, and would, probably, soon arise in other cases, we deem it fit to state the opinion we have formed on it, with the view of settling the question. It would have been more satisfactory to us, if in the books of criminal pleading or in an adjudication, a precedent or a direct authority could have been found. We have, however, looked through the standard works on crown law, from Ld. Coke’s commentary on the statute, 5 Eliz. c. 14, in the third institute, down to Mr. Chitty’s treatise, and through many books of forms, without succeeding in finding an indictment upon these words in that statute, “shewforth in evidence,” or a rule laid down upon them. This circumstance may not perhaps be deemed so very singular, when it is remembered that the same act *429contains also the words, pronounce and publish,” which are more extensive, and include “shew forth in evidence.” This furnishes a reason why the indictment should always be for “ pronouncing and publishing,” and none for “shewing forth in evidence;” since, although every publication is not shewing forth in evidence, yet shewing it forth in evidence is a publishing of it: Lord Coke saying that using any words, written or oral, whereby the instrument is set forth or held up as true, is “ to pronounce and publish it.” We have therefore only principle for our guide, and, being so guided, we have arrived at the conclusion that the second count is sufficient.

In the first place, we adhere to Britt’s case, 3 Dev. 122, that the words “ shew forth in evidence,” refer to a judicial proceeding. The questien then is, whether the particular proceeding must be set forth at large in the indictment; or may not be shown on evidence under the general words used in the statute and in this indictment.

It seems to be proper, and perhaps may be said to be necessary, where an offence is created by statute, to describe it in the indictment, whether consisting of the commission or omission of particular acts or of certain acts accompanied by a particular intent, in the words of the statute. This is certainly so, unless, for a word or phrase in the statute, another is used in the indictment, which is clearly of the same legal import, or has a broader sense including that in the statute. Of this exception, Rex v. Fuller, 1 Bos. & Pul. 180, is an example. But such examples áre very rare; and on the contrary, the case of Rex v. Davis, Leach, 493, and others of that kind, shew how strictly the Courts adhere to the let < ter of the law. Finding it thus to be generally true, that, in describing the offence, the indictment must use all the words of the statute: so, on the other hand, it would seem to be equally true, as a general rule, that the indictment is sufficient, if it contain all the words of the statute. When the language of the statute is transferred to the indictment, the expressions must be taken to mean the same thing in each. There can be few instances, in which the same words thus used, ought to or can be received in a different .sense in the *430one instrument from that in the other. As it is certain that the indictment was intended to describe the offence which the statute describes, it follows, from the use of the very same language in both, that the one means what the other does ; neither more nor less. It is true that some few exceptions from this rule have been established by adjudications; but they have not appeared to us to embrace the present case. Thus, a statute may be so inaccurately penned, that its language does not express the whole meaning the Legislature had; and by construction,- its sense is extended beyond its words. In such a case, the indictment must contain such averments of other facts, not expressly mentioned in the statute, as will bring the case within the true meaning of the statute ; that is,- the indictment must contain such words as ought to have been used in the Statute, if the Legislature had correctly expressed therein their precise meaiiing. In State v. Johnson, 1 Dev. 360, for example, it was held, that besides charging in the words of the act, that the prisoner, being on board the vessel, concealed the slave therein, the indictment should have charged a connexion between the prisoner and the vessel, as that he was a mariner belonging to her; because that was the true construction of the act. So, where a statute uses a generic term, it may be necessary to state in the indictment the particular species, in respect to which the crime is charged. As, upon a statute for killing or stealing “ cattle,” an indictment using only that word is not sufficient, but it ought to set forth the kind of cattle, as a horse or a cow. Rex v. Chalkeley, R. & R. 258. But where a statute makes a particular act an offence, and sufficiently describes it by terms having a definite and specific meaning, without specifying the means of doing the act, it is enough to charge the act itself, without its attendant circumstances. Thus, upon a statute making it felony to endeavor to seduce a soldier from his duty, an indictment is good, which charges such “ an endeavor,” without statingthe mode adopted. Fuller's case before cited. So, in indictments'founded on the words “pronounce and publish,” in this same statute of Elizabeth, (which are not ours), the pre*431cedents uniformly charge “ the pronouncing and publishing of the forged instrument .as true,” without stating the means by which, or the person to whom it was published. Upon the more modern English statutes against “putting off or disposing of ” forged or counterfeit money or bank notes, it is also held, that the circumstances need not be stated’. Rex v. Holden & al. 2 Taunton 334. We do not perceive why the same principle does not apply to the other' words, “shew forth in evidence,” used in the act of Elizabeth, and in our act; and are not aware of any disadvantage to the prisoner from the omission to set out in the indictment the particular proceeding, in which the evideneewas offered. We agree that such a judicial proceeding must be proved; and if it be not properly proved, the prisoner can put the matter on the record by an exception, and have' the same benefit thereof on a motion to reverse the judgment, and for a venire de novo, that he could have from a motion in arrest of judgment.— Hence, we hold the second count in this indietment to bé good.

Per Curiam,- New trial awarded-.-