State v. Murray

• Decision Date: 11 October 1905
• Citation: State v. Murray, 72 S.C. 508, 52 S.E. 189 (S.C. 1905)
• Parties: STATE v. MURRAY.
• Court: South Carolina Supreme Court

52 S.E. 189

72 S.C. 508

STATE v. MURRAY.

Supreme Court of South Carolina

October 11, 1905

On Rehearing, October 30, 1905.

Appeal from General Sessions Circuit Court of Sumter County; Gage Judge.

George W. Murray was convicted of forging and uttering a lease, and appeals. Affirmed.

The following are the exceptions:

"First. Because, it is respectfully submitted, his honor erred in allowing the state, over the objections of the defendant, to challenge peremptorily more than two jurors whereas, the law only allowed the state two challenges in the trial of said case.

Second. Because his honor erred in refusing the motion of the defendant to direct a verdict of not guilty upon the close of the case for the state, which motion was made on the grounds (1) That the state had not proven that the lease was uttered by the defendant with any knowledge of its falsity; (2) because there was no evidence to show any intent to defraud (3) because there was no evidence tending to show an effort to cheat or defraud by means of the lease; (4) that there was no evidence tending to show that the defendant forged the lease or had any knowledge of the alleged forgery; (5) because there was no evidence that the paper was actually uttered, but, on the contrary, it appeared that the lease was introduced in evidence by the defendant's attorney simply because it was in existence, and the evidence showed that the lease as introduced was in exact accordance with the terms of the lease relied upon by the plaintiffs, and consequently could not under any view of the testimony operate to cheat or defraud any person, and it further appeared that the defendant could not be convicted of uttering a forged instrument, under section 373, Criminal Code, because that statute only undertakes to define forgery, and cannot cover the independent crime of uttering a forged instrument, because it would be unconstitutional to that extent, the title of the act being 'Forgery and Offenses against the Currency.'

Third. Because his honor erred in not granting a new trial in said case, on the motion of the defendant, made upon the minutes of the court, upon the grounds that the undisputed oral and documentary evidence taken in the case at bar, and in the proceedings leading up to the case, and in which the lease was used as evidence, showed conclusively that the same was used only for legitimate purposes, and that the use of the same under the issues raised by the pleadings could not operate to cheat or defraud the Chatmans, nor could the defendant have intended to have cheated or defrauded the Chatmans, because said lease was in exact terms as that introduced in evidence by the Chatmans; because there was no evidence tending to show that the defendant either forged or caused to be forged the lease, nor was there any evidence tending to show that the defendant had any reason to believe the lease to have been forged; because, said lease being in exact accordance with the true contract as set up by the Chatmans, its introduction in evidence strengthened the case of the plaintiffs, and in no way benefited the case of the defendant, for the reason that the sole issues raised by the pleadings and evidence in the case for specific performance were (a) the legal construction of the lease as to whether it was a lease with an incidental right of purchase, or whether it was a contract of purchase with a right vested in the lessee to comply at any time, whether in default or not; (b) whether or not the five acres of land included in the lease had been returned by the Chatmans at an agreed price or not; because the evidence as a whole taken in connection with the good character of the defendant, which was proven in the case, was totally insufficient to support a verdict of guilty; and because the statute under which the defendant was tried, to wit, section 373, is unconstitutional, the same being contrary to the provisions of article 2, § 20, of the Constitution of 1868, and of article 3, § 17, of the Constitution of 1895, in that the title of said act relates to 'Forgery and Offenses against the Currency,' and provides for the punishment of

crimes already existing, to wit, the crimes of forgery and of offenses against the currency, but the body of the act provides a punishment for persons 'willingly acting or assisting in the false making, forging or counterfeiting of any writing or instrument of writing, or of uttering, or publishing as true any false, forged or counterfeited writing, or instrument of writing,' and that said act, so far as it relates to the uttering as true any false, forged, or counterfeited writing, is unconstitutional, null, and void, and the conviction in this case should not be allowed to stand under a void statute."

Lee E. Moise and George Johnstone, for appellant. John S. Wilson, for the State.

GARY A. J.

The indictment, under which the defendant was convicted, charged that he "did willfully and falsely utter and publish as true a certain false, forged, and counterfeited writing and instrument of writing, commonly called a lease of land, of the tenor as follows: *** He, the said George W. Murray, then and there, well knowing the same to be forged, with intent to defraud Scipio Chatman and James Chatman. ***" The exceptions will be set out in the report of the case.

1. The first question that will be considered is, whether his honor the presiding judge, erred in allowing the state to challenge peremptorily more than two jurors. The names of the persons composing the jury were drawn and called in the usual manner, and defendant exercised seven challenges and the state exercised two, whereupon the state challenged the third juror, and the defendant objected upon the ground that this was not a charge of forgery, but of uttering a forged instrument, and that section 55 of the Criminal Code of 1902, was not applicable to this case. The court overruled the objection and allowed the challenge. The state did not exercise more than five challenges. Section 373 of the Criminal Code of 1902 is as follows: "Whoever shall be convicted of falsely making, forging or counterfeiting, or causing or procuring to be falsely made, forged or counterfeited, or of willfully acting or assisting in the false making, forging or counterfeiting, of any writing or instrument of writing, or of uttering or publishing as true any false, forged or counterfeited writing or instrument of writing, or of falsely making, forging, counterfeiting, altering, changing, defacing, or erasing, or causing or procuring to be falsely made, forged, counterfeited, altered, changed, defaced or erased, any record or plat of land, or of...