State v. Zimmerman

Decision Date07 March 1908
Citation60 S.E. 680,79 S.C. 289
PartiesSTATE v. ZIMMERMAN.
CourtSouth Carolina Supreme Court

Appeal from General Sessions Circuit Court of Richland County; Geo E. Prince, Judge.

Daniel Zimmerman was convicted of crime, and he appeals. Affirmed.

Bellinger & Welsh, for appellant.

George Bell Timmerman, for the State.

MOORE A. A. J.

At the March term, 1907, of the court of general sessions for the said county of Richland, the appellant Daniel Zimmerman, and one Thomas J. Gibson were called to plead to an indictment containing substantially the following three counts: (1) Charging conspiracy between the said Daniel Zimmerman, a bookkeeper in the office of the State Treasurer of the state of South Carolina, and one Thomas J. Gibson "to forge and to make a false entry in a bond registry book, a public record in the State Treasurer's office of the state of South Carolina, and to place on the market and sell" certain surrendered and redeemed bonds of the said state, "and appropriate the proceeds to their own use with intent to cheat and defraud the state of South Carolina," etc., and that they afterwards "accomplished their unlawful and wicked purpose," etc. (2) Charging forgery by the said Daniel Zimmerman, in that he did "forge and make a false entry in a bond registry book, which said bond registry book was then and there a public record of the State Treasurer's office of the state of South Carolina, and was then and there kept by the said Daniel Zimmerman as bookkeeper in said Treasurer's office," "by entering in the said bond registry book the bond No. 744 Brown Consols, in lieu and in place of Brown Consol Bonds, one of either of the Nos 959 or 1445, redeemed by the state of South Carolina on the said 21st day of May," 1901, "and should have been canceled on that day by the said Daniel Zimmerman, whose duty it was to cancel them then and there; but the said Daniel Zimmerman did not cancel either of the said bonds, numbered 959 and 1445, and did not enter them on said bond registry book after they were redeemed then and there by the state of South Carolina, but entered the old surrendered, redeemed and canceled bond, No. 744, on the bond registry book as a bond surrendered and redeemed on that day, which said bond, No. 744, had been redeemed by the state of South Carolina some years prior thereto, and at that time canceled, and the said Daniel Zimmerman then and there placed on the market and sold both of the said bonds, Nos. 959 and 1445, with intent to defraud the state of South Carolina," etc.; and also charging the said defendant Gibson with aiding and abetting in the commission of the felony aforesaid. (3) Charging the uttering and publishing by the said Daniel Zimmerman, in that he did "utter and publish as true a certain false, forged and counterfeited writing, to wit: The false and forged entry in a bond registry book," etc., being the same entry charged as forgery in the said second count, and "placed on the market and sold both of said bonds, Nos. 959 and 1445, with intent to defraud the state of South Carolina," etc.; and also charging, aiding and abetting as to the defendant Gibson. Upon arraignment the defendant Zimmerman moved to quash the second and third counts of this indictment, upon the ground that no indictable offense was charged, inasmuch as at common law there is no such offense as that charged in said counts, and under the statute it must be charged to have been committed with intent to cheat and defraud a person, and the state of South Carolina is not a person as meant by the statute. This motion being overruled, the defendant Daniel Zimmerman entered a plea of "guilty as charged" in the indictment, and, having been duly sentenced, he now appeals from the order refusing to quash the second and third counts of the indictment.

Appellant's exceptions allege error in the holding that the second and third counts of the indictment charge an indictable offense, the grounds of alleged error being: "(1) Because at common law there is no such offense as that charged in the said two counts. (2) Because, under the statute, the offense must be alleged to be to cheat and defraud 'any person' and 'the state' is not such 'person' as is therein contemplated."

It is to be noted that no question is made by these exceptions as to the sufficiency of the first count of the indictment, and no error is thereby alleged in the judgment and sentence upon that count. In argument, however, the appellant submits that the first count of the indictment charges a misdemeanor, and the other counts attempt to charge felonies, and that a general plea of guilty and the sentence thereupon must be referred to the graver offense only; appellant citing in support of this proposition the case of State v. Nelson, 14 Rich. Law, 169, 94 Am. Dec. 130.

While it may be true that, where all the counts in an indictment are good, a general plea of guilty and the sentence thereupon will be referred to the higher offense, yet it cannot be doubted that such a plea is applicable to all and each of the counts of the indictment; and, therefore, if there be good and bad counts in the indictment the plea of guilty will be referred to that one which is good. The plea of guilty confesses the truth of whatever is well alleged in the indictment. See 1 Bish. Cr. Proc. 795. If, then, the contention of the appellant is correct, that the first count of the indictment here is the only good count, the judgment upon the plea of guilty must be referred to that count. There being in the exceptions before this court no allegation of insufficiency in the first count of the indictment, nor of error in the judgment pronounced upon the plea of guilty to this first count, it necessarily follows that the judgment below must be affirmed upon this ground, irrespective of the question as to the sufficiency of the second and third counts of the indictment. While this conclusion might properly be considered as rendering speculative the questions raised by the exceptions taken to the judgment below, it may nevertheless by advisable that these questions also should be determined. They will, therefore, now be considered.

The first exception is couched in such general terms as apparently to render it liable to the objection that it does not point out with sufficient certainty the alleged error of which complaint is sought to be made. Waiving this consideration, however, it appears from the argument of the appellant before this court that one of the defects in the second and third counts of the indictment,...

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