State v. Pine.

• Decision Date: 18 June 1904
• Citation: 56 W.Va. 1
• Parties: State v. Pine.
• Court: West Virginia Supreme Court

56 W.Va. 1

State

v.Pine.

Supreme Court of Appeals of West Virginia.

Submitted June 14, 1904

Decided June 18, 1904.

1. Instructions ErrorNew Trial.

The giving of instructions, predicated upon two different hypotheses in favor of the State in a criminal case, in support of one of which there is no evidence, and the refusal of a proper instruction embodying the one theory which the evidence tends to establish, is prejudicial error, calling for a new trial. (p. 10).

2. Instructions Error.

When, in a criminal case, the court gives erroneous instructions at the instance of the State, and refuses a proper one asked for by the defendant, and afterwards gives, at the instance of defendant, instructions embodying the erroneous propositions contained in the instructions given for the State, the action of the court in respect to the defendant's instructions is tantamount to an erroneous modification of the defendant's proper instruction, and he is not estopped from complaining of the action of the court. (p. 10).

3. Forgery Evidence.

To convict a city clerk of the forging of an instrument purporting to be an order for the payment of money out of the treasury of the city of which he is clerk, bearing the genuine signature of himself and the mayor of such city, upon the theory of his having fraudulently made such order, the State must show that the order was made by him without authority so to do. (p. 8).

Error to Circuit Court, Tyler County.

James H. Pine was convicted of forgery, and brings error.

Reversed.

Hunt & Staples, for plaintiff in error. The Attorney General and J. H. Strickling, for the State.

poefenbargee, president:

James H. Pine assigns errors in a judgment, rendered by the circuit court of Tyler county, upon a verdict of guilty of the offense of forgery, and sentencing him to imprisonment for a period of six years.

After having entered a plea of not guilty, he was permitted to withdraw it, and demur to the indictment, and upon the overruling of the demurrer, he again entered his plea in bar. The paper alleged to have been forged purports to be a city order of the city of Sisterville for the sum of $325.00, drawn upon the treasurer of said city, payable to Bently and Gerwig, signed by C. W. Grier, Mayor and Jas. H. Pine, City Clerk, and contains the clause "after deducting therefrom all taxes and fines due from bearer to said city''; and the point urged on the demurrer is that, as the order purports to be for the payment of money conditionally and not absolutely, the indictment ought to aver that no taxes or fines were due from the bearer. For this proposition, 2 Bish. New C. L. sees. 533 and 545, are relied upon. The rule here invoked applies only when the instrument forged is invalid on its face or is frivolous in character, not purporting to create any liability, conditional or absolute. That the acceptance of a conditional order may be the subject of forgery has been decided, Com. v. Ayer, 3 Cush. (Mass.) 150. So also, in Corn. v. Costello, 120 Mass. 358, it was held that an indictment for the forgery of a bond to dissolve an attachment, a conditional obligation, need not set forth how the bond could have been used to defraud. The order set forth in this indictment, however, discloses upon its face how it may be used to the prejudice of the city of Sistersville, even though as to the mere payment of money it is conditional. If fraudulently issued and based upon no consideration, would it not be to the prejudice of the rights of the city to allow credit for it on account of taxes or fines due? Does it not, on its face call for money due from the city treasury or for credit upon demands due to the said treasury? Its use in either way, if falsely and frauduletly made, would defraud the city.

Upon the overruling of the demurrer, the plea in bar was reentered. The record shows this to have been done August 12, 1903, and that, on the following day, the accused was permitted to file two pleas in abatement, alleging respectively as cause of abatement, that "the records of this court do not show that any venire facias was ever issued for the drawing, summoning or empaneling of the grand jury which found the said indictment and that "there was no venire facias authorizing the drawing, summoning or empaneling of the grand jury which found the said indictment." Demurrers to these pleas were sustained, and then a third plea setting up the same matter was tendered but the court refused to allow it to be filed. Thereupon the prisoner asked leave to withdraw his plea of not guilty and to file said third plea in abatement, and offered in support of his motion the joint affidavit of his attorneys, showing that at the time of the rejection of said pleas in abatement, the plea in bar, although entered ore tenus, had not been extended in the order book. The affidavit further showed that the want of a venire facias had not been discovered until after the second entry of the plea in bar. This last motion, the affidavit and the action of the court in overruling, arc shown by a bill of exceptions.

Several questions are raised on these pleas in the brief, but it suffices here to say they were all tendered too late. They are dilatory in character, such as, under all the authorities, must be presented before pleading in bar. Before any of them were tendered, there had been a demurrer to the indictment and then a plea of not guilty. After these steps it is in the discretion of the trial court to refuse to allow the plea in bar to be withdrawn for the purpose of entertaining pleas in abatement, and the appellate court will not interfere with the exercise of such discretion unless it appears to have been abusive. "Pleading the general issue waives plea in abatement. But the court hath discretion to allow that plea to be withdrawn and another substituted, but will not do so in favor of a merely formal defence." Early v. Com. 86 Va. 921. The matters sought to be set up in abatement in that case, after the plea in bar had been entered, were that the grand jury had not been summoned according to law, and that one of the grand jurors was not a qualified juror. So the case is almost exactly in point. In Curtis v. Com., 87 Va. 589, there had been a conviction and a new trial granted, and then the defendant moved the court to quash the indictment on the ground that it did not affirmatively appear from the record that a venire facias had been issued to summon the grand jury which had found the indictment, but the motion was held to have been interposed too late and was accordingly overruled. Leave to withdraw the plea of not guilty was not asked, however, but, in the other case, Early v. Com. such leave was asked, and refused, the court saying on this point: "In the present case we do not see from the record that this discretion has been improperly exercised." In Reed v. Cora., 98 Va. 817, the refusal of the trial court to allow the withdrawal of the plea in bar to plead, in abatement, disqualification of grand jurors was held not to be an abuse of discretionary power. Watson v. Com. 87 Va. 008, 612, says the want of a venire facias must be brought to the attention of the court before pleading to the merits in order to be effective. United States v. Gale, 109 IT. S. 65,. holds that "an objection to the qualification of grand jurors, or to the mode of summoning or empaneling them, must be made by a motion to quash, or by a plea in abatement, before pleading in bar." The Federal Supreme Court adopted this language from the opinion of Mr. Justice Parker in Robinson's Case, 2 Parker's Crim. Cas. 235, 308, 311, decided by the supreme court of New York, a case in which the irregularity relied upon was the want of a precept for summoning the grand jury which had found the indictment, corresponding to our venire facias.

That the trial court may, in the exercise of sound discretion, refuse to allow the plea in bar, to be withdrawn, seems to have been the opinion of the judges of this Court when State v. Shanley. 38 W. Va. 516, was decided, for Judge Holt cited many authorities to that effect, among which are Paltee v. State, 109 Ind. 545; People v. Lee, 17 Col. 76; Phillips v. People, 55 Ill. 429; Com. v. Mahoney, 115 Mass. 151.

It is not deemed material that the plea of not guilty had not been actually spread upon the order book when the dilatory pleas were tendered, even if that could be shown by affidavit. It had been in fact put in and issue made up on it. Nor is it of any consequence that the court allowed pleas 1 and 2 to be filed and then sustained demurrers to them. They were rejected and the existence of the plea in bar was a sufficient reason for so doing, whatever other reason the court may have found for its action.

A motion in arrest of judgment was founded upon the failure of the record to show that a venire facias had been issued for summoning the grand jury. The authorities already cited, amply sustain the action of the court in overruling that motion.

Upon some objection, the panel of petit jurors regularly drawn for the term of court at which the case was tried, had been quashed, and the names of forty-six other jurors drawn from the box in the presence of the court pursuant to an order so directing and reciting that such other jurors were necessary for the convenient dispatch of the business of the term. A motion to quash the new panel was overruled and this action of the court is said to have been erroneous. By its terms, sec. 14 of chap. 116 of the Code of 1899, is broad enough to confer upon the court the power to cause a new jury to be summoned under such circumstances. It does not say additional jurors may be so summoned, but that "other jurors" may be drawn by the clerk &c "whenever it shall be found necessary for the convenient dispatch of business.'' This section is applicable to criminal cases. State v. Mills, 33 W. Va. 455. It would be a very narrow construction of this statute, falling far short of the broad terms used,...