McGregor v. State

• Decision Date: 24 January 1860
• Citation: 16 Ind. 9
• Parties: McGregor v. The State
• Court: Indiana Supreme Court

16 Ind. 9

McGregor v. The State

Supreme Court of Indiana

January 24, 1860

APPEAL from the Hamilton Circuit Court.

The judgment is affirmed, with costs.

W. R Pierse and Hervey Craven, for the appellant.

J. E McDonald, Attorney Genl. and A. L. Roache, for the State.

OPINION

Perkins J.

Indictment for forgery, containing two counts, one for making, the other for uttering, false coin. Conviction, and sentence to the State prison. The case has been argued with a thoroughness corresponding to its importance. A motion was made to quash the count for uttering, because it was in the alternative, but the motion was overruled.

The count charged the defendant with uttering, &c., counterfeit gold coin, at the time current in the State, knowing the same to be counterfeit, with intent to defraud, &c. This was sufficient under the statute. 2 R.S., § 32, p. 416. The pleader, however, further averred, that said counterfeit coin resembled, or was intended to resemble, genuine coin. On this allegation was based the objection, that the indictment was in the alternative. But the whole allegation was surplusage, and informality in it did not vitiate the indictment. The question of resemblance would come up on the evidence.

It was also claimed that the count was bad for duplicity, in charging two or three offenses. The count alleges that the defendant uttered, published, and pet off the counterfeit coin, and it is argued that uttering is one offense, and passing the coin another. Admit that uttering might, of itself, constitute an offense where the counterfeit coin was not taken by the person to whom it was tendered, hence not put off; still, where the coin was taken, hence put off, upon the tender, the entire transaction would constitute but one offense. Every putting off of counterfeit money must include an uttering and tendering, but there may be an uttering and tendering where there is not a putting off. Less than is charged to have been done in this case might constitute a crime; while all that is charged to have been done, being a single act, makes but a single crime. This clearly distinguishes this case from the case of The State ads. Miller, 5 How. (Miss.) R. 250, where a selling of liquor, and a suffering to be drunk, &c., were charged.

A motion was made to quash the whole indictment, because separate felonies were charged in the separate counts of the indictment. See Hayworth v. The State, 14 Ind. 590. In that case, it is probable that it might have been more conformable to correct practice, had there been two counts. See Wharton's Prec. of Indictments, 2 Ed., p. 2; R. V. Trueman, 87 C. & P. 727. The general proposition, that separate felonies should not be charged in one indictment, has been asserted in two or three cases without the proper qualification. State v. Smith, 8 Blackf. 489, and Engleman v. The State, 2 Ind. 91. If they do not belong to different classes, as murder and forgery, growing out of separate transactions, they may sometimes be joined, without subjecting the indictment to be quashed, or the prosecutor to be put to an election.

"In cases of felony, no more than one distinct offense, or criminal transaction, at one time, should regularly be charged upon the prisoner in one indictment; because, if that should be shown to the Court before plea, they will quash the indictment, lest it should confound the prisoner in his defense, or prejudice him in his challenge to the jury; for he might object to a juryman trying one of the charges, though he might have no reason so to do as to the other: and if they do not discover it till afterward, they may compel the prosecutor to elect on which charge he will proceed. But this is only matter of prudence and discretion which it rests with the judges to exercise, for, in point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment, against the same offender; and it is no ground either of demurrer or arrest of judgment." Chit. Cr. Law, vol. 1, p. 253; see, also, Wharton's Prec. of Indictments, 2 Ed. p. 2; 1 Archb. Cr. Law, 95, note. In Cash v. The State, 10 Humph. (Tenn.) 111, the Court says: "But it may sometimes be proper to unite in the same indictment different offenses, when they are of the same character, differing only in degree, as in the case of The People v. Rynders, 12 Wend. (N. Y.) 425, where it was held that a charge for forging a check, and also for publishing it as true, knowing it to be false, were properly united." Again: "It is matter of practice to be left to the discretion of the Court, to be exercised under the influence of an enlightened sense of justice and humanity." In the case at bar, the Court did not abuse discretion in refusing to quash. Had the felonies joined been perjury and larceny, the...