State v. Stanton

Decision Date30 June 1841
Citation1 Ired. 424,23 N.C. 424
CourtNorth Carolina Supreme Court
PartiesSTATE v. JAMES STANTON.
OPINION TEXT STARTS HERE

On the trial of a bill of indictment for forgery, the person, whose name is charged to have been forged, and whose interest, supposing the instrument to be genuiue, is affected by it, either as an obligation or acquittance, is not, while the instrument remains in force, a competent witness to prove the forgery.

Where a defendant is acquitted upon one count in an indictment, and convicted on another, and appeals, if a venire de novo be awarded, it must be to re-try the whole case.

In an indictment under the act of Assembly, Rev. St. c. 34, s. 21, for ““shewing forth in evidence” a forged instrument, although “the shewing forth” must be proved to have been in a judicial proceeding, yet it is not necessary to state in the indictment in what suit or judicial proceeding it was “shewn forth.” It is sufficient to state the charge in the words of the act of Assembly.

It is generally proper and necessary to describe in an indictment an offence, created by statute, in the words of the statute. But there are a few exceptions to this rule.

The cases of the State v. Britt, 3 Dev. 122, & State v. Johnson, 3 Dev. 360, cited and approved.

This was an indictment for forgery, tried at Spring Term, 1841, of Johnston Superior Court of Law, before his Honor Judge SETTLE, and brought up to this Court, on appeal by the defendant, from the judgment of the Court. The indictment was in the following words, viz:

+-------------------------------------------------+
                ¦State of North Carolina,¦)¦Superior Court of Law,¦
                +------------------------+-+----------------------¦
                ¦Johnston County.        ¦)¦Fall Term, 1839.      ¦
                +-------------------------------------------------+
                

The jurors for the State, upon their oath present, that James Stanton, late of the County of Johnston, in the State of North Carolina, on the twenty-eighth day of May, in the year of our Lord, one thousand eight hundred and thirty-nine, with force and arms, in the County of Johnston aforesaid, feloniously did wittingly and falsely forge, make and counterfeit, and did cause and procure to be falsely made, forged and counterfeited, and did willingly act and assist in the false making, forging and counterfeiting, a certain receipt, which said false, forged and counterfeited receipt is as follows, that is to say, Received of Jas. Stanton, thirty-five dollars and ninety-one cents, this 22d day of May, 1838, in part of the rent of land that I rented to him for the year 1837.

W. WHITTEY.

with intention to defraud one Willie Whittey, against the form of the statute in such case made and provided, and against the peace and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further say and present, that the said James Stanton, afterwards, to-wit, on the day and year aforesaid, in the County of Johnston, aforesaid, feloniously did utter and publish as true, and shew forth in evidence, a certain other false, forged, and counterfeited receipt, which said last mentioned false, forged and counterfeited receipt is as follows, that is to say, Received of James Stanton, thirty-five dollars and ninety-one cents, this 22d day of May, 1838, in part of the rent of the land that I rented to him for the year 1837.

W. WHITTEY.

with intention to defraud the said Willie Whittey, he, the said James Stanton, at the time he so uttered and published, and shewed forth in evidence the said last mentioned false, forged and counterfeited receipt as aforesaid, then and there well knowing the same to be false, forged and counterfeited, against the form of the statute in such case made and provided, and against the peace and dignity of the State.

J. R. J. DANIEL, Attorney General.

To this indictment, the defendant pleaded not guilty. On the trial, Willie Whittey, who had signed the receipt, which was charged to have been altered, was offered as a witness in support of the prosecution. He stated, that he held the obligation of the defendant for thirty-five dollars, given for the rent of a tract of land for the year 1837; that the defendant had paid him ten dollars in part of his obligation, for which the receipt, alleged to have been forged, was given; and that he had warranted the defendant for the balance; that this warrant had been tried before a magistrate, and judgment given against him for the costs, from which judgment he had appealed to the County Court, where the matter was still pending. The counsel for the defendant then objected to the competency of this witness. The Court overruled the objection, and admitted the witness to be examined as to the receipt, reserving the question on a motion for a new trial, should the defendant be convicted. The witness proved the execution of the receipt for ten dollars, and that it had been altered as it now appeared, since he signed it; that it was in its present state when he first saw it, after its execution, in the possession of the defendant, who exhibited it on the trial before the magistrate. The justice before whom the warrant was tried, was also examined as a witness for the State. He testified as to the warrant, the trial, and the offering of the receipt by the defendant. The jury found the defendant not guilty on the first count, but guilty on the second count, as charged in the indictment. A rule was granted on the Attorney General, to shew cause why a new trial should not be granted, on acconnt of the admission of improper evidence; and a motion was also made in arrest of judgment. His Honor discharged the rule for a new trial, and intimated an opinion in favor of the motion in arrest of judgment. But he said, as it was important to have both questions settled, he should disallow the motion and give judgment, pro forma, against the defendant. From this judgment, the defendant appealed to the Supreme Court.

J. H. Bryan for defendant . The rule to exclude as incompetent, on the trial of an indictment for forgery, the testimony of him whose obligation or acquittance was alleged to be forged, is a well settled rule of the common law. Rosc. on Crim. Ev. 105, 409. 2 East's Crown Law, 993. It required an act of Parliament to alter it in England, as late as 9th Geo. 4th.

2ndly. It was not sufficient to set forth in the second count generally, that defendant shewed forth the receipt in evidence, &c., it should have been stated how, when and where the receipt was shewn forth; before what judicial tribunal, and in what judicial proceeding. The Court ought to be able to see from the indictment itself, that the instrument was offered in evidence before a competent judicial tribunal. State v. Fitzgerald, 1 Dev. & Bat. 408. State v. Britt, 3 Dev. 122. State v. Baldwin, 3 Dev. 197. State v. Enloe, 4 Dev. & Bat. 376.Attorney General in reply , contended as to the 1st point, That the same rule should apply in this case, as in analogous cases; that the true criterion in regard to the interest necessary to render a witness incompetent was, that the verdict might be given in evidence for or against him. And he cited Hawk. 646.4 Blac. 330. State v. Hassett, Tay. 55. Phil. Ev. 38, 39, 43. State v. Coulter, 1 Hay. 3. Farrel v. Perry, 1 Hay. 2. Porter v. McLure, 1 Hay. 360. State v. Wyatt, 2 Hay. 56. Archbold on Crim. Plead. 146, 147, King v. Newland, Leach 311. King v. Ponsonby, Leach 322. King v. Waite, 1 Bingh. 121. King v. Peacock, Ry. & Rus. 278. King v. Mott, Ry. & Rus. 436. Phil. Ev. 88, 89, 90. People v. Howard, 4 Johns. Rep. 296, 302, 303.

2ndly. As to the motion in arrest of judgment, he insisted that the second count in the indictment was sufficiently certain; that it contained enough to disclose to the defendant the offence with which he was charged; that the words “shew forth in evidence” had been judicially defined in State v. Britt, 3 Dev. 122, and that certainty to a common intent was sufficient, 1 Chit. Crim. Law, 236, 239. Russell on Crimes, 406. Archbold Crim. Pl. 44, 54.

RUFFIN, C. J.

It has not been denied in the argument, that at common law it was a settled rule of evidence in England, that a person, whose name had been forged, and whose interest supposing the instrument to be genuine, was affected by it, either as an obligation or acquittance, was not, while the instrument remained in force, a competent witness to prove the forgery. Gilb....

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