State v. Wood

• Decision Date: 01 January 1868
• Parties: STATE OF MINNESOTA v. CHARLES WOOD.
• Court: Minnesota Supreme Court

13 Minn. 112

STATE OF MINNESOTAv.

CHARLES WOOD.

Supreme Court of Minnesota.

Appeal from a judgment of the district court, Olmsted county.

The indictment against defendant contained two counts, one charging him with having forged a promissory note; the

other charging him with having uttered and published the forged note. When arrainged he demurred to the indictment on the ground that it charges more than one offence. The demurrer was overruled, and on trial defendant was found guilty.

R. A. Jones, for appellant.

O. P. Stearns, for respondent.

BERRY, J.

To an indictment found against him, the defendant demurred, on the ground "that more than one offence is charged" in the same.

The demurrer was overruled and exception taken. A trial being had, the jury rendered the following verdict: "The jury find the prisoner guilty as charged in the indictment." Sentence was pronounced as follows: "It is adjudged by the court that you, Charles Wood, as punishment for the offence of which you have been proved guilty, be conveyed hence without unnecessary delay to the state prison at Stillwater, in the state of Minnesota, and that you be confined in said state prison for the term of one year at hard labor." The defendant appeals to this court.

1. Section 3, p. 651, Gen. St., provides that "the defendant may demur to the indictment when it appears from the face thereof * * * that more than one offence is charged

in the indictment, except in cases where it is allowed by statute."

Sections 1 and 2, pp. 610-11, Gen. St., read in this wise:

"Section 1. Whoever falsely makes, alters, forges, or counterfeits * * * any * * * promissory note * * * with intent to injure or defraud any person, shall be punished by imprisonment in the state prison not more than five years nor less than two years, or by imprisonment in the county jail not more than two years nor less than one year.

"Sec. 2. Whoever utters and publishes as true any false, forged, or altered * * * instrument, or other writing mentioned in the preceding section, knowing the same to be false, forged, or altered, with intent to injure or defraud as aforesaid, shall be punished by imprisonment in the state prison not more than five years nor less than one year."

The first count in the indictment charges making, forging, and counterfeiting; the second count charges uttering and publishing. In so doing we think the indictment charges two offences. The first of the two sections last quoted relates solely to making, altering, forging, or counterfeiting any promissory note, etc., and prescribes punishment therefor.

The second section relates solely to uttering and publishing, as true, any false, forged, or altered promissory note, etc., and prescribes a punishment therefor differing from the punishment prescribed in the first section.

It is obvious that one of these offences is not the same as the other, and the difference of punishment shows a difference between the offences in the mind of the legislature. As one person may forge, and another person may utter the same instrument, each may commit a distinct offence, and one of them be punishable under the first section, the other under the second. Nor does the uttering imply forging by the person uttering, as a battery implies and includes an assault.

2. Is this a case in which "it is allowed by statute" to charge more than one offence in an indictment? Section 6,

p. 646, Gen. St., enacts that "when by law an offence comprises different degrees, an indictment may contain counts for the different degrees of the same offence, or for any of such degrees. The same indictment may contain counts for murder, and also for manslaughter, or different degrees of manslaughter. When the offence may have been committed by the use of different means, the indictment may allege the means of committing the offence in the alternative. When it is doubtful to what class an offence belongs, the indictment may contain several counts describing it as of different classes or kinds." This section, taken in connection with the section before quoted, which enumerates the grounds of demurrer, changes to some extent the rules of the common law. We are not aware that it has been enacted elsewhere, and we do not find that any judicial construction has been put upon its language. The first clause would appear to have reference to such an offence as murder, which by statute comprises different degrees, or...