Powell v. Commonwealth

• Decision Date: 14 November 1854
• Citation: 52 Va. 822
• Parties: POWELL v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

52 Va. 822

POWELL v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 14, 1854

1. QUÆ RE: If the act, Code, ch. 181, § 5, p. 681, in relation to amendments of a record by a judge in vacation applies to records in cases of felony.

2. The amendments authorized by the act, are to be based upon something in the record, and not upon the recollection of the judge who presided at the trial, or evidence aliunde; and the amendments authorized are amendments to support the judgment, not amendments to give ground for reversing it.

3. The words " to the prejudice of another's right," in the Code, ch. 193, § 5, p. 733, in relation to forgeries are descriptive not of the offence, but of the writings of which forgery may be committed; and it is not therefore necessary that they shall be inserted in the indictment in describing the offence charged.

4. The maker of a negotiable instrument passes it to the payee, with the name of a third person endorsed upon it, which name he forged: The forging of the name endorsed upon the paper constitutes the offence of forgery.

5. The description of the writing in the indictment, as the endorsement of the person whose name is forged, will not vitiate the indictment, though the simulated liability might not be that of technical endorser, but of a different character.

William A. Powell was indicted for forgery, and for uttering a forged paper, in the Circuit court of the city of Richmond. The indictment charged that Powell, having in his possession a certain writing, which is set out, and is in form a negotiable instrument, made by himself and payable to Roach & McGuire, did feloniously forge on the back thereof the endorsement of the name of the firm of John & George Gibson, with intent to defraud. But the indictment did not charge that it was to the prejudice of another's right. There was another count charging him with uttering the forged paper, in all other respects like the first.

On the trial the prisoner was found guilty, and the jury fixed the term of his imprisonment in the penitentiary at two years. He thereupon moved the court for a new trial, on the ground that the verdict was contrary to the evidence: But the court overruled the motion; and he excepted, and spread the facts upon the record.

It appeared in proof that the prisoner purchased a bill of goods of Roach & McGuire, and gave them in payment a negotiable note signed with his own name, and made payable to them or their order, with the name of John & George Gibson endorsed on the back thereof; and that the endorsement was a forgery.

After the end of the term of the court at which the prisoner was convicted, he applied to the judge in vacation to amend the record; and the judge made an order directing that the record should be amended so as to show that upon the arraignment of the prisoner for the offence aforesaid, he by his counsel moved the court to quash the indictment and each count thereof, which motion was overruled, but was omitted to be entered on the record.

Upon the application of the prisoner, this court granted him a writ of error to the judgment.

August, for the prisoner.

The Attorney General, for the commonwealth.

LEE, J.

Waiving the question whether the provision in the Code, ch. 181, § 5, p. 681, authorizing amendments in judgments or decrees of a court in certain cases by the judge in vacation after the adjournment of the term, can apply to a case of felony, in which all the proceedings should regularly be had in presence of the accused, or to any criminal case, I am yet of opinion, that no such amendment of the record as that attempted to be made in this case, by the action of the judge in vacation, on the 11th of May 1854, is within the scope of that provision. It was intended to authorize amendments in support of a judgment, in cases in which there was something in the record by which they could safely be made. It could not have been intended to authorize an amendment to be made upon the individual recollection of the judge, or upon proofs aliunde. Nor was the application in this case to amend the judgment, nor was it designed to aid the judgment when made. It was an application to introduce something into the record as part thereof, not before found therein, depending on the recollection of the judge, or upon proofs to be submitted to him; and its object was to provide a means of reversing the judgment, not of sustaining it.

The construction given by the English courts to the statutes of amendment, required that there should be something to amend by. Tidd's Prac. 246, 247; Commonwealth v. Winstons, 5 Rand. 546, opinion of Judge Green. And such is, I think, the plain meaning of the provision in question in our statute. And if no amendment can be made in the record of a judgment after the term, except under the statute, or in the few cases allowed by the common law, of which this is not one, the amendment attempted to be made in this case must be disregarded; and no objection to the indictment can now be considered, if the offence be charged therein with sufficient certainty for judgment to be given thereon according to the very right of the case. Code, p. 770, § 12.

But it is urged that the omission of the averment " to the prejudice of another's right," is a defect so material that it may be taken advantage of after verdict; and that it cannot be aided by what is found charged in the indictment. It is said that these terms import a part of the description of the offence denounced in the statute; and that according to well settled rules of pleading, they cannot be omitted. I think these words are not intended to be descriptive of the offence, but of the writings of which forgery may be committed. The first and third sections of the act specify various writings by name or general description, the forgery of which is made felony; and the fifth section makes the forgery of any writing, other than those mentioned in the first and third sections, " to the prejudice of another's right," in like manner felony: thus discriminating between those writings which might affect the rights of others whereof forgery might be committed, and other writings by which, whether false or genuine, the pecuniary interests of others could not be affected. This discrimination has not been introduced, but only preserved, by the statute; being found to exist at the common law, which predicates the offence of forgery only of such writings as are to the prejudice of another's right, or, as it is sometimes expressed, by which another may be defrauded. 3 Chitty Cr. L. 1021; 2 Russ. on Crimes 318. That these words " to the prejudice of another's right," refer to the writings contemplated by the statute, and not to the act of the party, is, I think, sufficiently established by Hendrick's Case, 5 Leigh 707, and Murry's Case, Ibid. 720; in neither of which did the indictment contain that particular expression, though it is found in the act of 1819 on which those prosecutions were founded.

But although the employment of these terms is not indispensable in an indictment under the fifth section, it must sufficiently appear, from the description given of the writing alleged to have been forged, that it was writing to the prejudice of another's right. If it be not such, it is not within the statute, and the forgery of it cannot be punished as felony. It is insisted, that the writing described in the indictment is not embraced by the statute. It is argued that to be such, the instrument must appear on its face to be valid and effectual to answer the purpose intended, and calculated by its appearance of genuineness to defraud; and that as the plaintiff was the maker of the note and Roach & McGuire the payees, the endorsement of the names of John & George Gibson, if genuine, could only have been intended to bind them as second endorsers, and created no liability on their part to Roach & McGuire, the payees; and as parties must be held to know the law, that Roach & McGuire were bound to take...