State v. Tingler.

• Decision Date: 26 June 1889
• Citation: 32 W.Va. 546
• Parties: State v. Tingler.
• Court: West Virginia Supreme Court

32 W.Va. 546

State

v.Tingler.

Supreme Court of Appeals of West Virginia.

Submitted June 14, 1889.

Decided June 26, 1889.

1. Certiorari.

On suggestion of diminution of the record a writ of certiorari is effectual to bring to this court the true and correct record, no matter in what respect the transcript, as certified in the first instance, may vary from or misrepresent such record.

2. Indictment──Forgery──Criminal Practice.

The form of the indictment for forgery and uttering forged instruments, found in Mayo's Guide, (Ed. I860,) p. 537, is good as to both counts.

3. Indictment Forgery Criminal Practice.

Neither in an indictment for uttering or attempting to employ as true a forged instrument, nor in one for forgery is it necessary to name the person intended to be defrauded, as the Code of 1887, c. 158, sec. 8, dispenses with that in both such cases.

4. Indictment──Forgery──Criminal Practice.

It is not necessary in such indictment to allege, that the act was to the prejudice of another's right; but it must appear from the description of the writing in the indictment, that it is such as might prejudice his right.

B. F. Ayres for plaintiff in error.

Attorney-General Alfred Caldwell for the State.

Brannon, Judge:

Writ of error to a judgment of the Circuit Court of Ritchie county sentencing Tingler to confinement in the penitentiary for two years. A preliminary question arises upon a motion by defendant to dismiss a writ of certiorari awarded in this cause. The transcript of the record accompanying the petition for the writ of error states, that the grand-jury presented "an indictment against Thomas Tingler for a misdemeanor. A true bill." The Attorney-General suggested a diminution of the record, and this Court awarded a writ of certiorari to the clerk of the Circuit Court of Ritchie, and the record as certified by him under the mandate qf said writ shows, that the grand-jury presented "an indictment against Thomas Tingler for a felony. A true bill." The defendant below moves this Court to quash this writ of certiorari. His counsel cites the provision in sec. 7, c. 135, Code 1887, that "such court may in any case award a writ of certiorari to the clerk of the court below, and have brought before it, when part of a record is omitted, the whole or any part of such record.

Certiorari, as an auxiliary writ used by appellate courts to present to them for decision of errors assigned the record in the court below, as it in truth exists there, is a remedial writ belonging to such courts under the cemmon-law without this statute, and its office should not be hampered by too strict construction. If counsel means by citing the statute, that it does not lie in this case, because the statute gives it, "when part of the record" is omitted, and because the transcript, as it first appeared, showed the indictment to be for a misdemeanor and was full on this point, I do not think the point well made. The Attorney-General suggested, that this word "misdemeanor" in the transcript was a clerical error, and that in the record-book it was in truth "felony," not "misdemeanor." Literally, if such is the fact, here is a part of the record omitted in the language of the statute,; the word "felony," and the statute would apply. Certainly, where the clerk by accident in making the copy substitutes one word for another found in the record, the spirit and object as well as the letter of this act, as well as the commonlaw function of the writ, w^ould seem to afford a remedy, whereby the record, as in truth it is, can be brought to this Court a better record. In Shifflet v. Com., 14 Gratt. 652, where there appeared an omission in the transcript of the finding of the indictment, a certiorari was held proper to secure a better record. So in Williams's Case, 14 W. Va. 869.

If a record is defective or incorrect, the errors or omis- sions should be suggested in this court, and a certiorari moved to bring up a correct record. Hudgins v. Kemp, 18 How. 530. "Where the clerk's certificate to the transcript is in point of fact not true, the remedy is by certiorari to supply deficiencies," says Waite, C. J., in Railroad Co. v. Dinsmore, 108 IT. S. 30 (2 Sup. Ct. Rep. 9). In short this writ is properly used by this Court to get before it the record of the court below, as it in fact exists, no matter what the character of the defect in the transcript as certified in the first instance here.

Defendant's counsel relies on Seabright's Case, 2 W. Ya. 591, which holds, that the purpose of the writ is not to cause a record to be made or corrected but to have brought before the appellate court, when part of the record is omitted, the whole or any part of it. That case does not apply here. There after signing the bill of exceptions the judge during the term had interpolated certain words, and the defendant asked a certiorari with the intent to have the bill certified, as it was before the interpolation of those words, and, the facts being agreed, this Court held, that the court below had the right to insert those words; and the real point of the decision was, that the record as already before the court was correct and true, and refused the writ. Judge Maxwell remarked that a certiorari could not be used to cause a record to be made or corrected. This is so. Its office is only to bring up the record as already made by the court below. Any amendment or correction of that record is to be made by that court in a proper proceeding. Vest's Case, 21 W. Ya. 796; Bias v. Floyd, 7 Leigh, 647. A certiorari will not do this. But in this case the State by the certiorari is not seeking to alter, amend or correct the record from its present showing, as it now is in the Circuit Court, but simply to present it here as it is there. The motion to quash the certiorari is overruled.

The indictment is as follows:" State of West Virginia, Ritchie county, to wit: The grand-jurors of the State of West Virginia, in and for the body of the county of Ritchie, and not attending said court, upon their oaths present that

Thomas Tingler, on the────day of────────, 1888, in said

county, feloniously did forge a certain paper-writing, pur- porting to be an order signed by────────MacFadden, and to

solicit Mr. Collins to let the bearer have three dollars' worth of goods, and which said forged order is of the following purport and effect, to wit: ' Feb. the 23, 1888. Mr. Collins: Please let the bearer have three dollars' worth of goods, and oblige me. I will pay you in. tobacco. MacFadden.' With intent to defraud against the peace and dignity of the State. Second Count. And the jurors aforesaid, on their oaths aforesaid, do further present that the said Thomas Tingler

afterwards to wit, on the────────day of-────── 1888, in said

county feloniously did utter and attempt to employ as true a certain paper-writing, purporting to be an order payable to bearer, which said last-mentioned order is of the following purport and effect, that is to say: ' Feb. the 23, 1888. Mr. Collins: Please let the bearer have three dollars' worth of goods, and oblige me. I will pay you in tobacco. MacFadden.' With intent to defraud, he the said Thomas Tingler. at the time he so uttered and attempted to employ as true the said last-mentioned forged order and paper writing, to wit, on the day and year last aforesaid, well knowing the same to be forged, agaiast the peace and dignity of the state. On information of Creed Collins and William MacFadden, sworn and sent to the grand jury to give evidence at the instance of the state. II. Peck, Pros. Atty. Indorsed: A true bill. J. M. MacKinney, Foreman."

Defendant moved the court to quash the indictment and each count, and his motion...