Chahoon v. Commonwealth

• Decision Date: 03 February 1871
• Citation: 61 Va. 733
• Parties: CHAHOON v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

61 Va. 733

CHAHOON v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

February 3, 1871

Joynes, J., absent, sick.

1. C is indicted for felony in the Corporation court of R., the proper court to try him for the offence. When indicted he is not in custody, and has not been arrested or examined by a justice. QUÆ RE: If he should be arrested and sent before a justice to be examined, or whether he may be taken on a capias, and tried upon the indictment, without an examination by a justice.

2. The third section of the third article of the constitution, in relation to the qualification of jurors, does not operate proprio vigore, and without any legislation on the subject, to repeal all existing laws in conflict therewith but until such legislation is had, the existing law continues in force.

3. Even if this provision of the constitution did operate proprio vigore, a grand jury summoned and empanneled under the existing law, which requires that they should be freeholders could not be objected to on this ground; it not appearing that they did not have the qualifications required by the constitution.

4. The act in force at the time of the adoption of the constitution not having been since altered by legislation, a venire facias for the trial of a prisoner for felony, should be conformed to the act; under the second and fourth sections of the schedule to the constitution.

5. Upon a trial for forgery, to prove that the paper was forged, a witness was introduced, who said that he knew H., the party whose signature was in question, and who was dead, about two years; was his tenant; had seen him write; thinks he knew his handwriting tolerably well; but could not swear to a particular signature as his, without knowing the fact; thought he had a sufficient knowledge or recollection of his signature to enable him to give an opinion as to the genuineness of his signature, though he would not swear absolutely about it. Says: I think it is not his handwriting; but at the same time, I cannot say on oath positively it is not. This is admissible evidence.

6. On such a trial the Commonwealth may prove that H. was prompt in the payment of his debts, and that he owned a large property, real and personal, and was doing a good business.

7. Forgery of a paper may be by performing the act in person, or by being present, procuring and assisting in the forgery.

8. Uttering a forged paper may be proved by showing that the prisoner attempted to employ as true, the forged writing, with a knowledge, at the time of the said attempt, that the same was forged, with the intent to defraud. And any assertion or declaration, by word or act, that the forged writing is good, with such knowledge or intent, is an uttering or attempt to employ as true, the said writing, if such assertion or declaration was made in the prosecution of the purpose of obtaining the money mentioned in the said writing.

9. To convict of forgery, the jury must be governed entirely by the testimony before them, and they must not presume or assume the guilt of the accused, by reason of his failure or neglect to produce evidence in his own behalf. But if the jury believe that it is in the power of the accused to produce evidence in elucidation of the subject matter of the charge against him, then his failure or neglect to produce such evidence may be considered by the jury, in connection with the other facts proved in the case.

10. The forgery charged was the note of H., an unnaturalized foreigner. The forging or uttering it was in fraud of the adm'r of H., and the heirs of H., if he had any, or the State, if he had none.

11. The bringing a suit at law, as counsel, upon the forged note, and recovering judgment thereon, and the filing a bill to enforce payment of the judgment out of the real estate of H., and having the same sold and receiving the proceeds--the same being done with the knowledge that the note was a forgery--was an attempt to employ the said note as true, within the meaning of the statute.

12. Though the suit at law was brought in the County court of Henrico, and the suit in equity was in the Circuit court of Henrico, yet as both these courts were held within the limits of the city of Richmond, and the prisoner lived in the city, the Hustings court of the city had jurisdiction to try the prisoner.

On the 4th of June, 1870, being the May term of the court, in the court of Hustings for the city of Richmond, an indictment for forgery was found against George Chahoon. The indictment contained four counts. The first count was for the forgery of a bond purporting to be signed by Solomon Haunstein, promising to pay to John W. Thompson or order, on demand, the sum of seven thousand dollars, and dated the 1st of April, 1861. The second count was for uttering and attempting to employ as true the said bond, with intent to defraud. The third count was for forging an endorsement of the name of Thompson on said bond; and the fourth count was for uttering and attempting to employ the said endorsement, with intent to defraud.

Chahoon not being in custody when the indictment was found against him, a capias was issued to bring him into court on the first day of the next term to answer the indictment. Under this capias he was brought into court at the same term, and gave bail with condition to appear at the next term of the court. He then appeared, and on his motion the trial was postponed until the September term; and then it was again continued until the October term.

At the October term of the court the prisoner was arraigned; and he then moved the court to quash the indictment, and to direct, by proper process, that he be taken before a justice of the peace in order that he might be examined for the offence with which he stands charged in the said indictment; he not having been arrested or examined for said offence before the finding of the indictment. This motion the court overruled; and the prisoner excepted.

When the prisoner was required to plead, he moved the court to quash the indictment, because the grand jury that found the indictment were required to be freeholders, because the officer who summoned them, summoned none but freeholders, and that the clerk, before they were sworn, demanded to know of each of them whether they were freeholders; which facts appeared to the satisfaction of the court. But the court overruled the motion; and the prisoner excepted. This is his second exception. The prisoner then tendered a plea raising the same question; but the court rejected it; and he again excepted. This is his third exception.

The prisoner then moved the court to quash the venire facias; upon the ground that it restricted the sergeant in summoning the venire, to freeholders only. And this motion the court sustained, and quashed the venire. And thereupon a new venire was ordered, directing the officer to summon twenty-four good and lawful men of the corporation, who are qualified to vote and hold office under the constitution of Virginia, and who reside remote from the place where the felony was committed, each of whom is twenty-one years of age. The officer having returned the venire executed, the prisoner moved the court to quash it, because it was not in conformity to law, and for errors apparent on its face. But the court overruled the motion; and the prisoner again excepted. This is the fourth bill of exceptions.

Upon the trial, the first witness introduced for the Commonwealth was Oscar Cranz. He had known Solomon Haunstein from about 1852 to the time of his death, in April or May, 1861. He had had dealings with him during that period, and had frequently received orders from him for the purchase of liquors, but that these orders were very seldom in writing. He could not say how often he had seen his written orders; had never seen him write; and from the few orders in writing he received, and the lapse of time, he could not give a decided opinion as to his handwriting; thinks he could remember it, but would not like to give an opinion about it after this lapse of time. Whereupon it was proposed by the Commonwealth to ask the witness whether, from his recollection of the handwriting of Haunstein, the signature to the writing charged to be forged, which was then offered in evidence, was the signature of said Haunstein. To this question the prisoner objected: but the court overruled the objection; and permitted the question to be put to the witness: and the prisoner again excepted. This is his fifth exception.

To the question stated above, the witness said: It is hard for me to give an answer; it looks like it, and it don't look like it, as far as my recollection goes. Whereupon the Commonwealth proposed to the witness the following question: If you have an opinion, after an inspection of the signature before you, whether it is or is not the handwriting of Solomon Haunstein, declare it. To this question the prisoner excepted: but the court overruled the objection, and allowed the question to be put to the witness: and the prisoner excepted. This is his sixth exception.

The Commonwealth introduced another witness--Emanuel Francis--who stated that he knew Haunstein intimately; had known him twenty or twenty-one years; was familiar with his handwriting after he commenced business as keeper of a restaurant; he did not believe the signature to the paper to be Haunstein's: and he described some peculiarities in Haunstein's genuine signatures. And then he was asked by the Commonwealth, Was Solomon Haunstein prompt or not in the payment of his debts? To this question the prisoner objected; but the court overruled the objection: and the prisoner excepted. This is his seventh exception.

After the witness had answered the question stated in the last exception,...