State v. Haven

• Decision Date: 23 June 1887
• Citation: 9 A. 841,59 Vt. 399
• Parties: STATE v. HAVEN.
• Court: Vermont Supreme Court

9 A. 841

59 Vt. 399

STATE

v. HAVEN.¹

Supreme Court of Vermont.

June 23, 1887.

Exceptions from Rutland county.

This was an indictment in six counts, under section 4160, R. L.,² charging the respondent with signing, as treasurer of the Rutland Railroad Company, a certificate of the ownership of one thousand shares of capital stock of said Rutland Railroad Company, and issuing the same. Heard, on demurrer to the indictment, Rutland county court, September term. 1884, Ross, J., presiding. Demurrer overruled pro forma, and the indictment adjudged sufficient. Exceptions by respondent.

P. Redfield Kendall, State's Atty., for the State.

The signing with intent that it shall be issued or used, and the causing to be issued or used, a false certificate of shares of stock, are one and the same offense, and may well be alleged conjunctively. State v. Morton, 27 Vt. 310; Bish. Crim. Proc. § 190; State v. Matthews, 42 Vt. 542; State v. Brady, 14 Vt. 353; Byrne v. State, 12 Wis. 519; State v. Nelson, 29 Me. 329; Whart. dim. Pl. & Pr.; Com. v. Twitchell, 4 Cush. 74; Hinkle v. Com., 4 Dana, 518; Bish. Direct. & Forms, 19; Com. v. Eaton, 15 Pick. 275.

E. R. Hard, for respondent.

The first count is bad for repugnancy, it being alleged that the certificate purported that Mead was the owner of certain shares, while the certificate set forth in the count states that he was entitled to the shares. 1 Bish. Crim. Proc. §§ 489, 490; Gould, Pl. 154, 155; 1 Chit. Pl. (16th Amer. Ed.) 255.

It is not alleged with sufficient or any certainty for what purpose the certificate was signed, nor that it was signed with any unlawful or improper intent, nor with intent that it should be issued or used unlawfully or improperly. The fact that the alleged offense is charged in the indictment in language similar to, or even identical with, that used in the statute upon which the indictment is based, does not obviate this objection. 1 Bish. Crim. Proc. §§ 612, 619, 623-627, 629; State v. Comfort, 22 Minn. 271; State v. Shenton, Id. 311; State v. Simpson, 73 N. C. 269; Harrington v. State, 54 Miss. 490: Covington v. State, 6 Tex, App. 512; Long v. State, Id. 642; Dillingham v. State, 5 Ohio St. 280, 283; U. S. v. Goggin, 9 Biss. 269; State v Keach, 40 Vt. 113; State v. Jones, 33 Vt. 443.

The allegation that he did not own, etc., "any share or shares," etc., is denying his ownership, etc., only argumentatively, and is therefore insufficient. 1 Chit. Pl. (16th Amer. Ed.) 260; Gould, Pl. 63, 64; Bourne v. Taylor, 10 East, 189. Under section 4160, 11. L., the signing, with intent to issue, etc., is itself a distinct and substantive offense. The issuing of such an instrument as is mentioned in that section is another offense, distinct from the signing, and may be committed, in respect to the same certificate, by a person other than the one who signs; and the second count alleges the commission by the respondent of both these offenses. This count, therefore, embraces separate felonies, and is bad for duplicity. 1 Chit. Pl. 246, and note; Id. 558, note c; Gould, Pl. 219, 420; 1 Bish. Crim. Proc. §§ 432, 433; State v. Nelson, 8 N. H. 163; People v. Cooper, 53 Cal. 647; Hunt v. Haven, 52 N. H. 162, 168.

ROWELL, J. The first and the fifth counts are bad for argumentativeness. They allege that Mead did not own nor have standing in his name, and was not entitled to, any share or shares of the capital stock of said company, which is but an argumentative way of saying that he did not own, and was not entitled to, the shares of stock purporting to be conveyed to him by said certificate. Thus, in trespass for breaking and entering the plaintiff's close, and subverting the soil thereof, and digging and boring the same, the defendant pleaded seizin in fee in the Duke of Northumberland of the manor of Tynemouth, of which the closes in question had immemorially been parcel and copyhold tenements, and that by reason thereof the duke was seized in fee of all the veins and seams of coal lying within and under the copyhold tenements of said manor, together with the liberty of boring for, digging for, and getting such veins and seams of coal there, and of doing all things necessary for that purpose. The plaintiff replied that as well the said veins and seams of coal as the rest of the soil and ground within and under said closes had from time immemorial been parcel of said manor, and demised and demisable by copy of court-roll, without any exception or reservation of the mines or seams of coal within and under said closes, etc.; to which the defendant demurred, for that the replications did not directly traverse nor confess and avoid any of the matters alleged in the pleas, but were argumentative, and not issuable; and the court, construing the pleas to claim a liberty during the continuance of the copyhold estate, said that it required no argument to show that a replication that the copyholds had always been demised without any exception or reservation of the mines or seams of coal was not a confession of the liberty, and an avoidance of it, but was a mere argumentative denial of its existence, and that the replications were bad on that ground. Bourne v. Taylor, 10 East, 189. So, too, if in trespass for carrying away goods, the defendant should plead that the plaintiff never had any goods, that would be argumentatively saying not guilty, and so no plea, although the argument would be infallible. Dyer, 43a; Steph. Pl. 385.

The second and the sixth counts are bad for duplicity. Under the statute, the act of signing a false certificate, with intent that it shall be issued and used, is of itself an offense, and causing it to be issued and used is another and distinct offense. Nor can they both be committed by the same act, but only by separate and distinct acts, though they may be committed on the same occasion. When a crime may be...