State v. McCormack

• Citation: 9 N.W. 916,56 Iowa 585
• Parties: STATE OF IOWA v. MCCORMACK.
• Decision Date: 05 October 1881
• Court: United States State Supreme Court of Iowa

56 Iowa 585

9 N.W. 916

STATE OF IOWA

v.MCCORMACK.

Supreme Court of Iowa.

Filed October 5, 1881.

Appeal from Clark district court.

There are two counts in the indictment. The first charges that the defendant did, feloniously and with intent to defraud, falsely make, forge, and counterfeit a certain check purporting to be signed by D. H. Porter; and the second, that the defendant, with intent to defraud, uttered and published as true the check aforesaid. The defendant demurred to the indictment, which was overruled; whereupon he moved the court to require the state to elect upon which count the defendant should be tried, which was also overruled. There was a trial by jury; verdict, guilty; and judgment. The defendant appeals.W. M. Wilson and Copenheffer & Demming, for appellant.

Smith McPherson, Atty. Gen., for the State.

SEEVERS, J.

It is provided by statute: “The indictment must charge but one offence, but it may be charged in different forms to meet the testimony; and, if it may have been committed in different modes and by different means, the indictment may allege the modes and means in the alternative. * * *” Code, § 4300. It makes no difference under the statute whether the offences are charged in the same or different counts, for if more than one offence is charged the indictment is bad. We have had occasion to construe this statute several times. See State v. Fedment, 35 Iowa, 541;Same v. Rhodes, 48 Iowa, 702;Same v. Ridley, Id. 370; Same v. McFarland, 49 Iowa, 99;Same v. Thomas, 53 Iowa, 214.

The question for determination is whether the indictment charges more than one offence. The attorney general does not, in terms, claim but a single offence is charged, but he insists this court has held that forgery, and uttering and publishing as true the forged instrument, may be charged in the same indictment. In support of this proposition, State v. McPherson, 9 Iowa, 53;State v. Farris, June term, 1874; and State v. Nichols, 38 Iowa, 110, are cited. The indictment in the last case is precisely like the one before us, and both are based on the same statutes. It was held to be sufficient under the authority of the two other cases cited, under the supposition all were alike, and we were bound by the former decisions. We are now constrained to say the assumption there was no difference between the first two and last cases was a mistake. The indictment in State v. McPherson was found under sections 2634 and 2635 of the Code of 1851, which are identical with sections 3925 and 3926 of the Code. There were three counts in the indictment: “The first was for counterfeiting silver coin; * * * the second, for having in possession at the same time five pieces of false coin, knowing the same to be false, with intent to utter and pass; and the third, for having less than five pieces of such coin with the...