State v. Fitzsimmons

• Citation: 30 Mo. 236
• Parties: THE STATE, Respondent, v. FITZSIMMONS, Appellant.
• Decision Date: 31 March 1860
• Court: Missouri Supreme Court

30 Mo. 236

THE STATE, Respondent,

v.FITZSIMMONS, Appellant.

Supreme Court of Missouri.

March Term, 1860.

1. It is discretionary with the court, in the trial of a criminal case, whether the witnesses in attendance shall be separated and ordered to retire so that they may not hear each other's testimony. If such an order be made and be disobeyed, it is, it seems, a matter of discretion with the court whether the disobedient witness shall be examined or not; it is not error to permit him to be examined.

2. In the trial of a criminal case, the legal existence of a banking corporation may be proved by general reputation. (R. C. 1855, p. 1193, § 23.) This rule is applicable to the case of a corporation organized under the general banking law of another state.

3. Where a statute, on which an indictment is founded, describes or enumerates the offences disjunctively, the indictment, if it contain only one count, should charge them conjunctively if they are not repugnant; as, where the statute makes it an offence to “sell, exchange, or deliver,” &c., for any consideration, any falsely made note, &c., it is proper that the indictment should charge the offences conjunctively, that the accused did sell, exchange and deliver, &c. If the offences are not repugnant, the indictment will not be liable to the objection that several offences are joined in the same count.

4. It is no defence to an indictment, founded on the ninth section of the fourth article of the act concerning crimes and punishments (R. C. 1855, p. 591, § 9), for selling, exchanging and delivering to another certain falsely made, forged and counterfeit bank notes of a certain denomination, that the bank named never issued genuine bills of the character or denomination of those described in the indictment.

5. To constitute a sale or exchange within the meaning of the said section, it is not necessary that the accused should have parted with his entire interest in the counterfeit paper for a consideration paid; the transaction would, it seems, be within the statute though the sale should be on credit, or, if there were a delivery, if it were understood that they should be returned in case they were not sold.

Appeal from St. Louis Criminal Court.

The facts sufficiently appear in the opinion of the court.

Shreve & Boyce, for appellant.

I. The court improperly summoned a juror. (Sess. Acts, 1857, p. 661.) The witnesses ordered to be separated disobeyed the order; yet the court permitted them to testify. The court improperly permitted the organization of the company to be proven by reputation. It is not sufficient that the bank was organized under a general banking law. (1 Denio, 9; 23 Wend. 103.) The jury found a verdict in the teeth of the instruction given at the instance of the defendant, that “to constitute a sale or exchange of the bills described, the defendant must have parted with his entire interest in the subject of sale for a consideration.” The evidence showed conclusively that the bills described were delivered under an agreement that if the same were passed or uttered in that case defendant should have one-half the proceeds, and, if not sold, nothing. Such a contract is void in law; and there was no consideration given. The instruction given, telling the jury that though the Chippewa bank never issued genuine bills of the character or denomination, &c., yet, if the bills were falsely made bills, the defendant was liable, was erroneous. There can be no forgery, or counterfeit bill, without a genuine. To be falsely altered presupposes the existence of a genuine original. (9 Mo. 845.) The court erred in refusing the instructions asked. The indictment is defective, repugnant and contradictory. Selling and exchanging or delivering are distinct offences. If the defendant did one, he could not do the other.

Mauro, (circuit attorney,) for the State.

I. The incorporation of the bank was properly proved by reputation. (R. C. 1855, p. 1193, § 23.) There was a sufficient consideration proved for the sale of the spurious notes.

SCOTT, Judge, delivered the opinion of the court.

The defendant was indicted for selling, exchanging and delivering forged counterfeit notes to one George Hawdon for a certain consideration to him paid, which said notes purported to be made and issued by the Chippewa bank, a bank duly incorporated under the laws of the state of Wisconsin. The defendant was convicted and sentenced to the penitentiary, from which he appealed to this court.

One of the points made by the defendant is, that the judge of the court below summoned one of the jurors. It appears that the juror was upon the panel of jurors detailed for service in the cause. As the juror was regularly on the panel, we do not see how the defendant was affected in a way which injured him by the court's calling up the juror to be sworn. It does not appear that any irregularity was produced by this act of the judge.

The court ordered the witnesses to be separated during the examination. This order, however, was not obeyed, and some of the witnesses heard others testify during the trial. The defendant objected to those witnesses being examined, who, in violation of the order of the court, remained in hearing whilst other witnesses were testifying. The objection was overruled, and the witnesses were sworn and deposed on the trial. It is a matter in the discretion of the court whether the witnesses shall be separated or not during their examination. Though a matter in the discretion of the court, such a request from either party is usually allowed. If an order is made that the witnesses be separated and it is disobeyed, it is a matter of discretion with the court whether the disobedient witness shall be examined or not. Some maintain that the court can not deprive a party of the evidence of such a witness, his conduct only affording a matter for comment before the jury. (Parker v. McWilliam, 6 Bing. 683; State v. Sparrow, 3 Murph. 487; The State v. Brookshire, 2 Ala. 303; Greenl. Ev. § 432.) It is apparent that the witnesses were not in such a situation from hearing the testimony that the exercise of a sound discretion required their exclusion. The matter about which they testified in common was the spuriousness of the notes, a point on which the cause did not turn, and a matter capable of being placed beyond all doubt or cavil by testimony, had it been deemed important.

The bank whose notes were forged was not incorporated by a special act creating a corporation, but it seems that it was created under a general banking law providing the mode by which banking companies might be organized for doing business. The twenty-third section of the sixth article of the act concerning practice in criminal cases, enacts, that if, on the trial or other proceeding in a criminal cause, the existence, constitution or powers of any banking company or corporation shall become material or in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute book of the state, government or country by which such corporation was...