Gates v. State
| Decision Date | 23 April 1894 |
| Citation | 71 Miss. 874,16 So. 342 |
| Court | Mississippi Supreme Court |
| Parties | E. L. GATES v. THE STATE |
March 1894
FROM the circuit court of Lee county. HON. NEWNAN CAYCE, Judge.
The indictment against appellant contains two counts, one for forgery of a bank check on the First National Bank of Tupelo Mississippi, purporting to have been signed by W. X. Wilson the other count being for uttering such forged instrument. Both counts aver a felonious intent to injure and defraud the said W. X. Wilson and the said bank.
Accused moved to quash the indictment, on the grounds, mainly, that it charged two separate, distinct felonies; that in each count it alleged an intent to defraud two persons; and that it failed to aver that the bank was a corporation. This motion was overruled, whereupon accused moved that the state be required to elect upon which count it would proceed, and this motion was likewise refused.
There was a general verdict of guilty, and from a sentence to three years' imprisonment in the penitentiary defendant, after motion in arrest and for a new trial overruled, appeals.
Judgment affirmed.
Clarke & Clarke, for appellant.
1. There was an improper joinder of counts. The two offenses are distinct. Code 1892, §§ 1106, 1111.
2. The court should not refuse to notice the objection to the indictment because it is styled motion to quash instead of demurrer.
3. The indictment is defective in averring an intent to defraud the bank and Wilson. See Cunningham v. State, 49 Miss. 685; Morris v. State, 8 Smed. & M., 762; Murphy v. State (R. I.), Lawyer's Rep. An., 550.
4. If the person alleged to be the one intended to be defrauded is an artificial person, this must be averred. Code 1892, § 1116.
5. The second count does not charge that the uttering was knowingly done.
Frank Johnston, attorney-general, for the state.
It is immaterial whether the bank was incorporated. This does not enter into the definition of the offense, which consists of the forgery of a check in the name of Wilson on the bank. It is within the discretion of the court to compel an election between counts. Hemingway v. State, 68 Miss. 371; Sarah v. State, 28 Ib., 267; Wash v. State, 14 Smed. & M., 120.
The motion to quash the indictment was properly overruled. Objections to an indictment for defects appearing on the face thereof must be taken "by demurrer, and not otherwise." Code, § 1354.
If we should consider the motion to quash as though it were a demurrer, as urged by counsel to do, no different result would follow, for, as a demurrer, it should be overruled, because it goes to the whole indictment, and since one count thereof is confessedly good, the demurrer is too broad, and, for that reason, could not be sustained.
Whether the state shall be required to elect upon which of several counts of an indictment it will proceed is a matter that rests within the discretion of the trial court, and where, as here, it appears that the defendant was not prejudiced by the refusal of the court to compel an election, such refusal is not available as...
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