Froman v. Commonwealth

• Decision Date: 07 October 1897
• Citation: 42 S.W. 728
• Parties: FROMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

42 S.W. 728

FROMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 7, 1897

Appeal from circuit court, Bourbon county.

"Not to be officially reported."

Elijah Froman was convicted of forgery, and appeals. Affirmed.

Mann &amp Ashbrook, for appellant.

W. S Taylor, for the Commonwealth.

PAYNTER J.

The indictment was found under section 1188 of the Kentucky Statutes, which reads as follows: "If any person shall forge or counterfeit any writing whatever whereby fraudulently to obtain the possession of or to deprive another of any money or property, or cause him to be injured in his estate or lawful rights, or if he shall utter and publish such instrument, knowing it to be forged and counterfeited, he shall be confined in the penitentiary not less than two nor more than ten years." The indictment charges (1) that the defendant, Froman, forged the name of L C. Smith to a paper purporting to be a promissory note; (2) that he uttered and published that note. A demurrer was submitted to the indictment on the ground that two offenses were charged in the indictment. The court overruled the demurrer. Thereupon the defendant filed a demurrer to the charge in the indictment that he uttered and published the note, and the court sustained the demurrer. The commonwealth's attorney failed to elect which charge he would prosecute, and it is therefore contended that the court should have sustained a demurrer to the indictment. By section 168 of the Criminal Code of Practice, where an indictment improperly charges more than one offense the attorney for the commonwealth may dismiss one of them, and thereupon a demurrer shall not be sustained on that ground. If it can be said that the court erred in overruling the demurrer to the indictment because it improperly charged more than one offense, and because of the commonwealth's attorney's failure to elect, yet the defendant enabled the court to cure that error by filing a demurrer to the second charge in the indictment, which the court sustained, thus leaving the defendant to be tried alone on the charge of forging the paper. The effect of this action of the court was to make the election as to which charge was to be prosecuted, and it seems to us that this had the same effect as if the commonwealth's attorney had made the election. The defendant was entitled to be tried upon the one or the other charge, and the court proceeded to try him upon the charge of forging Smith's name to the instrument. The proof was addressed to that issue, and the court alone submitted the question of forgery to the jury. Under the decisions of this court in Ellis v. Com., 78 Ky. 137, and Nichols v. Com., 78 Ky. 180, a demurrer to the indictment should have been sustained; but, as we have said, before defendant was placed upon trial the court had made the election as to what charge should be prosecuted.

At the conclusion of the testimony of the commonwealth, the defendant moved the court for a peremptory instruction, on the ground that the commonwealth did not prove that the offense was committed in Bourbon county. Thereupon the court permitted the commonwealth to introduce proof that the offense had been committed in Bourbon county. We do not think the court abused its discretion in that matter, and the defendant was not prejudiced by it. In the conduct of a trial the court is allowed the exercise of a discretion in such matter, and in the exercise of that discretion he permitted the introduction of the testimony. The defendant was not deprived of an opportunity to show that the offense, if committed at all, had been committed in any county other than Bourbon; hence he could not be prejudiced by the testimony. In Larman v. Huey's Heirs, 13 B. Mon. 436, the court said: "It is essentially a question of practice whether, after a plaintiff says he has concluded his testimony, and a motion is made to instruct the jury as in the case of nonsuit, ...