Hoskins v. The State Of Ga.

• Decision Date: 31 January 1852
• Docket Number: No. 14.,14.
• Citation: 11 Ga. 92
• Parties: Wm. Hoskins, plaintiff in error. vs. The State of Georgia.
• Court: Georgia Supreme Court

11 Ga. 92

Wm. Hoskins, plaintiff in error. vs. The State of Georgia.

No. 14.

Supreme Court of the State of Georgia

JANUARY TERM, 1852.

Indictment for forgery, in Baker Superior Court. Tried before Judge Warren, December Term, 1851.

The indictment in this case was for forging an instrument, of which the following is a copy:

" Mr. Hoarey—Please let William Hoskins have fifteen dollars' worth in your store, and you will oblige me. October 29th, 1851. H. W. Vines."

The first count set forth the instrument, calling it an order, and charged defendant with forging it. The second was similar, except that the instrument was called an order or bill. The third count, was for passing as true, or uttering the forged instrument. The fourth and last count was for having said forgedinstrument in his possession, with intent fraudulently to pass the same.

On the trial, counsel for defendant moved the Court to com pel the Solicitor General to elect upon which of the counts he would try the prisoner; which motion being overruled, defendant's counsel excepted.

On demurrer to the third and fourth counts for insufficiency, they were stricken out by the Court, and the prisoner put upon trial on the two first counts.

The State proved that defendant wrote the instrument, and then proposed to prove by the clerk of Mr. Hora that prisoner presented it at the store and obtained the amount it called for, in goods and money. Counsel for defendant objected to this testimony, on the ground, that there was then no count in the indictment for " passing " or " uttering " the forged instrument. The Court overruled the objection, and defendant excepted.

The Solicitor General announced that he had closed his case, when the presiding Judge, in the presence and hearing of the Jury, suggested to the Solicitor, " if he had not better offer the order in testimony? " To which proceeding, prisoner excepted, 1st. For irregularity and interference by the Court; and 2d, Because the State had closed, and it was too late to offer other evidence.

When the case was closed, counsel for prisoner asked the Court to charge the Jury, that this indictment could be sustained only under the 9th or 10th section of the VIIth. division of the Penal Code; that it could not be under the 9th, because the instrument was not " a note, bill, draft or check, " nor under the 10th, as that section made provision only for such " other writing not herein provided for;" and there was no allegation in the indictment that this was such a writing as was not specially provided for; that the proof made out a different offence from that charged in the indictment, being the offence specially provided for in the 14th section of the same division; and for which offence, prisoner could not be found " guilty under this indictment."

The Court refused so to charge, but on the contrary, chargedthe Jury, "that the indictment was well founded under the said tenth section, without any such allegation as that required by counsel for prisoner; that the indictment was maintainable under the 10th or the 14th section, and the prisoner might be found guilty under either, provided the proof sustained the charge.

To which refusal to charge, and charge as given, defendant's counsel excepted.

R. H. Clark, for plaintiff in error.

Sol. Gen. Lyon, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

William Hoskins was tried for the offence of forgery, in the Superior Court of Baker County. The indictment contained four counts: 1st. For making a certain forged instrument, therein set forth, called an order; 2d. Substantially the same as the first, except that the writing alleged to be forged, was termed an order or bill; 3d. For uttering or passing the paper; and 4th, For having the same in defendant's possession with intent fraudulently to pass the same.

Before the indictment was read to the Jury, counsel for the accused moved the Court to compel the Solicitor General to elect upon which one of said several counts he would try the prisoner, which motion was overruled, and this is alleged as error. Counsel for the defendant then demurred to the 3d and 4th counts, as insufficient in law, for a conviction for any offence, which demurrer was sustained by the Court. The indictment was then read, consisting of the two first counts only; the others being stricken out.

Was the Solicitor General compelled to elect which count he would proceed upon?

In Bulloch vs. The Slate, (10 Geo. Rep. 47) this Court held, that where there are several counts in an indictment, charging different grades of the same offence, with punishments differing in degree only, but of the same nature, and the Jury return ageneral verdict of guilty, the judgment will not be arrested, but the Court will award judgment for the highest grade of offence charged in the indictment.

And such, we understand to be the general tenor of the authorities. Benjamin Rynders, of New York, being indicted for forgery, a similar motion was made by his counsel, to the one now under consideration. Chief Justice Savage, in delivering the opinion of the Court, said, that there would be an incongruity in incorporating in the same indictment, offences of a different character, such, for instance, as forgery and perjury, could not be denied; and that in such a case, a Court would refuse to hear a trial upon both, there could be no doubt. But that, when offences of the same character, differing only in degree, are united in the same indictment, the prisoner may, and ought to be tried on both charges at the same time. And such was adjudged to be the case then before the Court. The prisoner was indicted for forging the check and also for publishing it as true, knowing it to be false. These were admitted to be different offences and were punished with different degrees of severity, but were nevertheless held to be properly united, both in the indictment and the trial. The prisoner might be convicted of one and not of the other. So of murder or manslaughter, of grand and petit larceny, of assault and battery, and an assault with intent to murder; in which cases, no Court would refuse to try the prisoner upon all the offences charged. 12 Wend. 425.

But suppose it were otherwise, the two last counts in the indictment being, upon demurrer, stricken out, there was really nothing left but the charge of forgery.

After the witness, George W. Sutton, was sworn, he was asked by the Solicitor General to tell all he knew about the prisoner's having passed to him, as the clerk of Hora, the order alleged to have been forged, and what he gave him out of the store on said order? This question was objected to, because it was intended to elicit testimony to prove that Hoskins had passed the instrument, when he was only indicted for making it. The objection was overruled, and the interrogatory directed to be answered, and this assigned as error.

The order, which is the subject matter of this prosecution, purported to have been drawn by Hiram W. Vines, on a merchant by the name of Hora, requesting the latter to let the defendant have fifteen dollars\' worth of goods at his store. The indictment charged, that the forgery was perpetrated with intent to injure the ostensible maker, Vines. A. J. Swinney, a witness previously sworn on the part of the State, testified that he had furnished the accused with the paper upon which this order was written. Now, the evidence of Sutton was competent for the purpose of showing that the order was actually passed, and thereby establishing the quo animo, or intent with which it was forged Besides, by tracing the custody of this forged instrument to Hoskins, in connection with the fact that the paper had been supplied to him upon which it was written, it demonstrates the truth of the charge in the indictment, that he was the forger.

Before the Solicitor General had tendered in evidence the order, he announced that he had closed the case, when the presiding Judge suggested to him publicly and in the hearing of the Jury, that he had better offer the instrument in evidence. It was then introduced and allowed to be read, to all of which, counsel for the prisoner excepted.

We recognize the rule, and are not disposed to relax it, that after the testimony has closed on the part of the State, in criminal trials, that it should not be re-opened. It will not do to allow to any party the right to introduce evidence at any time, at his own election, and without reference to the stage of the trial on which it is offered. It is obvious that by permitting such a practice, the proceedings of the Court would be often greatly embarrassed, the purposes of justice obstructed, and the parties themselves be surprised by evidence destructive of their safety, and against which they could not guard. To prevent such mischievous consequences, all Courts find it necessary to establish some fixed general rules on the subject.

But here the State had not closed; there was the locus peniten-tiæ. The intimation which fell from the Bench, was cotemporan-eous with the announcement by the State\'s attorney. Suppose the suggestion had proceeded from the associate counsel, instead of the Court, and when the Solicitor General announced that he had closed, his associate had said, No, we will offer the order first, to...