Coleman v. Commonwealth

• Decision Date: 28 April 1874
• Parties: COLEMAN v. COMMONWEALTH.
• Court: Virginia Supreme Court

66 Va. 865

COLEMAN v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 28, 1874

Absent, Christian J.

1. All persons examined as witnesses must be fully possessed of their understanding; that is, such understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong and, therefore, idiots and lunatics, whilst under the influence of their malady, not possessing this share of understanding, are excluded.

2. A witness is not excluded bye this rule merely because he is a lunatic. That is not enough per se to exclude him but he must at the time of his examination be so under the influence of his malady as to be deprived of that " share of understanding" which is necessary to enable him to retain in memory the events of which he has been a witness, and gives him a knowledge of right and wrong. If at that time he has this share of understanding he is competent.

3. Of the competency of the witness in such case the court is the judge, whilst the weight of the testimony, the credit to be attached to it, is left to the jury.

4. On a trial for forgery M was introduced as a witness for the commonwealth, and gave important testimony against the prisoner. He was examined and cross-examined for two days and neither the counsel nor the court suspected he was deranged, though they thought he was drinking deeply. After the conviction and sentence of the prisoner he moved for a new trial, on the ground that M was deranged when he gave his evidence; and it was proved that he had been deranged a few days before the trial, and within a few days after it, and so continued. But the judge who tried the prisoner overruled the motion, and certified that at the time of M's examination he was a competent and proper witness, and not laboring under any mental disability whatever. The proofs not showing derangement at the time of his examination as a witness, he was a competent witness; and the judgment affirmed.

5. If in an indictment for a forgery, the document alleged to have been forged is described in such manner as would sustain an indictment for stealing it, supposing it to be the subject of larceny, the indictment is sufficient.

6. In a prosecution for a felony, where the trial has been protracted, and much evidence introduced, and it will consume much time in preparing a bill of exceptions, the court may properly refuse to delay the trial to permit the counsel to prepare the bill of exceptions, and postpone its preparation until the case is submitted to the jury.

7. A public record must be a written memorial, intended to serve as evidence of something written, said or done, made by a public officer authorized by law to make it; but that authority need not be derived from express statutory enactment.

8. Whenever a written record of the transactions of a public officer, in his office, is a convenient and appropriate mode of discharging the duties of his office, it is not only his right but his duty to keep that written memorial, whether expressly required so to do or not; and when kept it becomes a public document, a public record, belonging to the office and not the officer.

9. The warrant book of the sinking fund, kept by the second auditor in his office, of the transactions of the commissioners of the sinking fund of the state, is a public record, and is of itself evidence of what it contains, to be considered with the other evidence in the case.

10. The act, Code of 1873, ch. 42, § 22, in relation to the public debt, is not repealed.

11. Counsel in arguing the case before the jury, refer to an instruction given by the court, and represent it erroneously. It is not error in the court to interrupt him, and state to the jury the instruction correctly.

In March 1874, William D. Coleman was indicted in the Hustings court of the city of Richmond, for that on the 31st of December, 1873, he was secretary of the commissioners of the sinking fund, the said sinking fund having been authorized & c.; " having acquired possession in some manner and by some means, to the jury unknown, of a certain record, the same then and there being and remaining as a public record of the commonwealth of Virginia, in the office of the second auditor thereof in the capital of said commonwealth, at said city, to wit: the warrant-book of the said sinking fund, the said public record to wit: warrant book of the said sinking fund, then containing an entry in writing in the words, figures, ciphers and letters following, that is to say: " 1873, Nov. 11. By warrant No. 7, to Planters Nat'l Bank, for purchase of $18,100 of Virginia consolidated bonds, $8,190.25,' feloniously did forge the said public record, by then and there feloniously, falsely and corruptly erasing the figure 1 from the figures and ciphers $18,100, before written in the said public record, which figures, with the sign $ next preceding them, did, before such forgery and erasure, import and signify eighteen thousand one hundred dollars; but by reason and means of such forgery and erasure did become, import and signify eight thousand one hundred dollars, which said false, forged and altered entry in writing in the public record aforesaid is in the words, figures, ciphers and letters following, that is to say: ‘ 1873, Nov. 11. By warrant No. 7, to Planter's Nat'l Bank, for purchase of $8,100 of Virginia consolidated bonds, $8,190.25; ’ with intent to defraud, against the peace and dignity of the commonwealth of Virginia."

There was a second count in more general terms.

The prisoner demurred to the indictment; but the demurrer was overruled by the court. He then moved the court to quash the indictment for errors apparent upon its face; which motion the court also overruled; and he then pleaded " not guilty."

On the trial of the cause, after all the evidence had been introduced, including the book in which the forgery was charged to have been made, and the vouchers on which the entries in it were made, the prisoner by his counsel asked the court to give to the jury the following instructions:

1st. The jury are instructed that forgery of a public record can only consist in forging those things which the law authorizes or requires to be recorded.

2d. The law does not require the second auditor of the commonwealth of Virginia to keep a record of warrants issued to the treasurer of the state for payments of money on account of the sinking fund, provided for by the act of the general assembly of Virginia of March 30, 1871.

3d. In order to convict the prisoner of the forgery with which he stands charged, the jury must believe from the evidence that he committed the act of forgery as charged with intent to defraud.

4th. The jury are instructed that they must disregard all the evidence of the witnesses for the commonwealth, introduced to prove the number of bonds which ought to belong to the sinking fund, so far as such testimony was derived from the warrant book of the sinking fund kept by the second auditor, and alleged to have been forged by the prisoner, unless they believe that the said witnesses could speak of the number of bonds from their own memory, after having it refreshed by reference to said book.

5th. The jury are further instructed that they must disregard all the testimony of the witnesses for the commonwealth, introduced to prove the number of bonds which ought to belong to the sinking fund, so far as such testimony was derived from the orders from the commissioners of the sinking fund, signed by the prisoner as secretary, and directing the second auditor to issue his warrants, which orders were offered in evidence by the attorney for the commonwealth, unless they believe further that the said witnesses could speak of the number of bonds from their own memory, after having it refreshed by reference to said orders.

6th. The law does not authorize the second auditor of the commonwealth to keep a record of warrants issued to the treasurer for payments of money on account of the sinking fund, provided for by the act of March 30, 1871.

7th. The law does not authorize the second auditor of the commonwealth to issue warrants to the treasurer for the payment of money on account of the sinking fund, provided for by the act of March 30, 1871.

8th. In issuing his warrant to the treasurer for the payment of money on account of the sinking fund, provided for by the act of March 30, 1871, the law only authorizes and requires the second auditor to record the fact of issuing such warrant, the amount for which it is issued, the date thereof, and the particular head of general revenue or expenditure on account of which the money is paid; and other statements in the record warrant book of the second auditor, kept by him to record the issuing of warrants on account of the sinking fund, provided for by the act of March 30, 1871, are no parts of the public record.

9th. The law neither authorizes nor requires the second auditor to record in his warrant book, produced to the jury, the number of Virginia consolidated bonds, for the purchase of which warrant No. 7 was issued; therefore it could not be forgery for the prisoner to alter the figures 18,100 therein.

10th. The jury are instructed that they must exclude from their consideration the record book of the sinking fund produced to them, so far as the commonwealth's attorney would seek to show from said book the number of bonds which ought to be in the sinking fund; and that they must also exclude from their consideration the orders signed by the prisoner as secretary, so far as the commonwealth's attorney would seek to show the number of bonds which ought to be in said fund from those orders.

11th. The court is asked to say to the jury, that if they believe,...