Sands v. Commonwealth

• Decision Date: 03 February 1871
• Citation: 61 Va. 800
• Parties: SANDS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

61 Va. 800

SANDS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

February 3, 1871

Joynes, J., absent, sick.

1. The three terms spoken of in the act, ch. 208, §34, Sess. Acts 1866-67, are three terms after that at which the prisoner is first held for trial. And though a prisoner has been arrested and committed to jail, or gives bail to appear and does appear, or is brought into court, on the first day of a term of a court, that term is not to be counted as one of the three terms aforesaid.

2. The third section of the third article of the constitution, in relation to the qualification of jurors, does not operate proprio vigore, and without any legislation on the subject, to repeal all existing laws in conflict therewith but until such legislation is had the existing law continues in force.

3. Under the second and fourth sections of the schedule to the constitution, the act in force at the time of the adoption of the constitution regulating juries in criminal cases, not having been since altered, the venire facias for the trial of a prisoner for felony should be conformed to that act.

4. On a trial for the forgery of a note of H., who is dead, the Commonwealth may prove that H. was prompt in the payment of his debts, and that he owned a large property--real and personal--and was doing a good business.

5. An action at law was brought upon the note alleged to be forged against the curator of H., and judgment rendered without any defence. A suit in equity was then brought to subject the real estate of H. to the payment of the judgment; and there was a decree for sale, and sale; in both which suits the prisoner was counsel for the estate; and he purchased a part of the property. The records of these cases, with the testimony of the clerks of the respective courts, were admissible evidence with other evidence, to show the uttering of the forged paper, and the complicity of the prisoner in the uttering of it.

6. To convict a prisoner of uttering, or attempting to employ as true, a forged writing, it must be shown that the accused himself, uttered or attempted to employ as true the said forged writing, or was present at the time such forged writing was uttered or attempted to be employed as true, by some other person, aiding and assisting such person to utter or employ the same as true; and it must be further shown that the accused knew at the time that the said writing was in fact forged; and that such uttering or attempting to employ as true, was made or done by him with the intent to defraud. But any assertion or declaration, by word or act, directly or indirectly, that the forged writing is good, with such knowledge and intent, is an uttering or attempting to employ as true the said writing: provided that such assertion or declaration was made in the prosecution of the purpose of obtaining the money mentioned in the said writing.

7. The County court and Circuit court of Henrico, being held within the limits of the city of Richmond, an offence committed by proceedings in these courts, is committed within the jurisdiction of the Hustings court of the city, and may be prosecuted in that court.

8. The ex parte settlement of a personal representative, by a commissioner of the court, though it has been confirmed, is not competent evidence to show that a witness not connected with the estate had the means to pay for real estate which he purchased, at a sale made by the person who was personal representative, as commissioner of the court, in order to sustain the veracity of the witness.

This is an indictment in the Hustings court of the city of Richmond against Johnson H. Sands, for forgery. It is founded on the same writing on which the indictment against Chahoon was based; and is in totidem verbis, except the substitution of the name of Sands for that of Chahoon. The indictment was found on the 4th of June, 1870, the last day of the May term of the court, and Sands not being in custody, a capias was awarded to bring him into court on the first day of the next term. He was, accordingly, brought into court on the first day of the June term; and during the term the trial, on the motion of the attorney for the Commonwealth, was continued until the September term of the court; and at the September term the trial was continued until the third day of the October term.

At the October term of the court, the prisoner having been arraigned, he moved the court to discharge him from custody, and forever from further prosecution for the offence charged in the indictment, on the ground that there had been three regular terms of the court, after and since he had been held upon the said indictment, without a trial of him upon the same. But the court overruled the motion, and he excepted. It appeared that, by law, the Hustings court holds a term every month, except August; and has jurisdiction to try felonies at all its terms. The June term commenced on the 6th day of the month, and the court continued in session until the 2d of July. On the 6th of June, the first day of the court, the prisoner was brought into court; and the first entry on the record of the court of that term, is, that the prisoner, with his sureties, entered into a recognizance for his appearance on the next day. The July term commenced on the 5th day of July, and the court continued its sessions until the 30th of the month, when it adjourned to its September term; and it commenced its September term on the 5th of that month, and continued its session every day until the 30th of that month; on which day the court adjourned until the first day of the October term.

The prisoner then pleaded, and moved the court to quash the venire facias; which motion the court sustained: and directed another venire facias, commanding the sergeant to summon twenty-four men of the corporation, who were qualified to vote and hold office under the constitution of Virginia, & c. Upon the return of this venire facias, the prisoner moved the court to quash it, for errors apparent on its face: but the court overruled the motion; and the prisoner excepted. This is his second exception. The third exception is to the qualification of a juror; but it was not considered by this court. The fourth exception is to the refusal of the court to quash another venire facias; and raises the same question raised in the second.

In the progress of the trial, the Commonwealth introduced Emanuel Francis as a witness, who said he knew Haunstein well for several years before his death; they were intimate friends, and he knew his handwriting very well, having often seen him write, and had papers in his handwriting in his possession until a very recent date. Being shewn the bond alleged to be forged, he says he thinks Haunstein never wrote it; and he gave his reasons for it. He was then asked by the attorney for the Commonwealth whether Haunstein was in good pecuniary circumstances at the time of the date of the bond, April 1st, 1861. To which question and to any answer thereto the prisoner objected; but the court overruled the objection; and permitted the witness to answer it; and he said that Haunstein had plenty of money always, and money in bank; was doing a first rate business, and owned six houses and lots in the county of Henrico, in the suburbs of the city; four of the tenements were small, one a large house, and another a good sized house and store, with large lot attached. To this opinion of the court the prisoner excepted. This is his fifth exception.

After some further statements as to the habits of Haunstein, he was asked by the court the following question: You have said that you knew Solomon Haunstein intimately for a number of years; that he made you his confidante; and that you were familiar with his business and habits; did you ever know Haunstein to borrow money? To this question the prisoner objected; but the court overruled the objection; and directed the witness to answer the question: and the prisoner again excepted. This is his sixth exception.

The seventh and eighth exceptions are the same as the ninth and tenth in Chahoon's case. The attorney for the Commonwealth then offered to introduce in evidence the record of the suit in the County court of Henrico, referred to in the eleventh exception in Chahoon's case. To the reception of this record as evidence the prisoner objected; and the attorney for the Commonwealth stated that he expected to follow up this record with evidence shewing that the prisoner was representing the estate of Haunstein, and permitted the judgment to go by default. That afterwards, when a bill was filed in the Circuit court to subject the lands of Haunstein to the payment of said judgment, the prisoner, still representing himself as the counsel for said estate, aided the counsel for the plaintiff to procure a decree for the sale of the land, and to subject the same to the payment of said judgment; and did have the same sold under said decree; and received for his assistance, in allowing said judgment upon said bond to go by default, and for his further assistance in procuring said decree and the sale of said land, a large proportion of said land. And the prisoner thereupon repeated his objection to said record with said accompanying statement. But the court overruled the objection, and admitted the record: and the prisoner excepted. This is his ninth exception.

The Commonwealth then proved by the clerk of the County court Folkes, the bringing of the suit by Chahoon, as stated in the eleventh exception in Chahoon's case: that the witness marked the prisoner's name to the case, as counsel for the defendant, before he made out his docket for the March term, 1867: Does not remember whether this was done by order of Sanxay, the defendant, or the...