State v. Stanton

Full title: STATE v. JAMES STANTON

Court: Supreme Court of North Carolina

Date published: Jun 1, 1841

23 N.C. 424 (N.C. 1841)

Opinion

(June Term, 1841.)

1. 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 genuine, 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.

2. 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 retry the whole case.

3. In an indictment under the act of Assembly, Rev. St., ch. 34, sec. 21, for "showing forth in evidence" a forged instrument, although "the showing 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 "shown forth." It is sufficient to state the charge in the words of the act of Assembly.

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

FORGERY, tried at Spring Term, 1841, of JOHNSTON, before Settle, J., 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.:

J. H. Bryan for defendant. (427)

Attorney-General for the State.

STATE OF NORTH CAROLINA, } Superior Court of Law, Johnston County. } Fall Term, 1839.

The jurors for the State, upon their oath present, that James Staunton, 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: (425)

Received of James Stanton, thirty-five dollars and ninety-one cents, this 22 May, 1838, in part of the rent of land that I rented to him for 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, towit, on the day and year aforesaid, in the county of Johnston aforesaid, feloniously did utter and publish as true, and show 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 22 May, 1838, in part of the rent of the land that I rented to him for 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 showed 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 $35, given for rent of a tract of land for 1837; that the defendant had paid him $10 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 (426) 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 $10, 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 show cause why a new trial should not be granted, on account 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.

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. Ev., 124; Phil. Ev., 88; 2 Strange, 728; 2 East P. C., 993. But it was said in the argument that the rule was originally adopted upon the notion, now admitted to be erroneous, that the witness would, by procuring the conviction of the accused, be (428) discharged himself; and thence it was urged that he should not enforce the rule itself. Certainly parties injured are generally competent to prove the crime. But the case of forgery, though an anomaly, is certainly an exception. Although it may have been admitted inadvertently, and upon a wrong principle, yet as a court administering the common law, we have no authority to abrogate a rule or an exception so perfectly settled in that law. In England the courts, though not satisfied with it, could not alter the rule; and it became necessary for the Legislature to interpose. Stat. 9, Geo. IV., ch. 32. In like manner, we think legislative authority is alone competent here to change the law, which our ancestors brought with them upon their emigration, and which became as obligatory on the judicial tribunals they established as it continued to be on those they left behind. Besides, there have been, as it is well known, many cases in which such witnesses have been held incompetent in this State, and we feel bound not to depart from them, and therefore deem the judgment erroneous, and reverse it.

As this is done at the instance of the prisoner, the former verdict must be set aside entirely, and a venire de novo awarded, to retry the whole case.

Upon the form of the indictment, the Court would perhaps not be bound now to decide, since the other point disposes of the case here But as the point may be material upon the next trial, and would, probably, soon arise in other cases, we deem it fit to state the opinion we have formed on it, with the view of settling the question. It would have been more satisfactory to us if in the books of criminal pleading or in an adjudication a precedent or a direct authority could have been found. We have, however, looked through the standard works on Crown law, from my Lord Coke's commentary on the statute 5 Eliz., ch. 14, in 3 Inst., down to Mr. Chitty's treatise, and through many books of forms, without succeeding in finding an indictment upon these words in that statute, "show forth in evidence," or a rule laid down upon them. This circumstance may not perhaps be deemed so very singular, when (429) it is remembered that the same act contains also the words "pronounce and publish," which are more extensive, and include "show forth in evidence." This furnishes a reason why the indictment should always be for "pronouncing and publishing," and none for "showing forth in evidence," since, although every publication is not showing forth in evidence, yet showing it forth in evidence is a publishing of it: Lord Coke saying that using any words, written or oral, whereby the instrument is set forth or held up as true is "to pronounce and publish it." We have, therefore, only principle for our guide, and, being so guided, we have arrived at the conclusion that the second count is sufficient.

In the first place, we adhere to S. v. Britt, 14 N.C. 122, that the words "show forth in evidence," refer to a judicial proceeding. The question then is, whether the particular proceeding must be set forth at large in the indictment, or may not be shown on evidence under the general words used in the statute and in this indictment.

It seems to be proper, and perhaps may be said to be necessary, where an offense is created by statute, to describe it in the indictment, whether consisting of the commission or omission of particular acts or of certain acts accompanied by a particular intent, in the words of the statute. This is certainly so, unless, for a word or phrase in the statute, another is used in the indictment which is clearly of the same legal import, or has a broader sense, including that in the statute. Of this exception, Rex v. Fuller, 1 Bos. and Pul., 180, is an example. But such examples are very rare; and, on the contrary, Rex v. Davis, Leach, 493, and others of that kind, show how strictly the courts adhere to the letter of the law. Finding it thus to be generally true that in describing the offense the indictment must use all the words of the statute: so, on the other hand, it would seem to be equally true, as a general rule, that the indictment is sufficient if it contain all the words of the statute. When the language of the statute is transferred to the indictment, the expressions must be taken to mean the same thing in each. There can be few instances in which the same words thus used ought to or can be received in a different sense in the one instrument from that in the other. As (430) it is certain that the indictment was intended to describe the offense which the statute describes, it follows, from the use of the very same language in both, that the one means what the other does; neither more nor less. It is true that some few exceptions from this rule have been established by adjudications; but they have not appeared to us to embrace the present case. Thus a statute may be so inaccurately penned that its language does not express the whole meaning the legislature had; and by construction its sense is extended beyond its words. In such a case the indictment must contain such averments of other facts, not expressly mentioned in the statute, as will bring the case within the true meaning of the statute; that is, the indictment must contain such words as ought to have been used in the statute if the Legislature had correctly expressed therein their precise meaning. In S. v. Johnson, 12 N.C. 360, for example, it was held that, besides charging in the words of the act that the prisoner, being on board the vessel, concealed the slave therein, the indictment should have charged a connection between the prisoner and the vessel, as that he was a mariner belonging to her; because that was the true construction of the act. So, where a statute uses a generic term, it may be necessary to state in the indictment the particular species in respect to which the crime is charged. As, upon a statute for killing or stealing "cattle," an indictment using only that word is not sufficient, but it ought to set forth the kind of cattle, as a horse or a cow. Rex v. Chalkeley, R. and R., 258. But where a statute makes a particular act an offense, and sufficiently describes it by terms having a definite and specific meaning, without specifying the means of doing the act, it is enough to charge the act itself, without its attendant circumstances. Thus, upon a statute making it felony to endeavor to seduce a soldier from his duty, an indictment is good which charges such "an endeavor," without stating the mode adopted. Fuller's case, before cited. So, in indictments founded on the words "pronounce and publish," in this same statute of Elizabeth (which are not in ours), the precedents uniformly charge "the pronouncing and publishing (431) of the forged instruments as true," without stating the means by which or the person to whom it was published. Upon the more modern English statutes against "putting off or disposing of" forged or counterfeit money or bank notes, it is also held that the circumstances need not be stated. Rex v. Holden, 2 Taunton, 334. We do not perceive why the same principle does not apply to the other words, "show forth in evidence," used in the act of Elizabeth, and in our act; and are not aware of any disadvantage to the prisoner from the omission to set out in the indictment the particular proceeding in which the evidence was offered. We agree that such a judicial proceeding must be proved; and if it be not properly proved, the prisoner can put the matter on the record by an exception, and have the same benefit thereof on a motion to reverse the judgment, and for a venire de novo, that he could have from a motion in arrest of judgment. Hence we hold the second count in this indictment to be good.

PER CURIAM. New trial.

Cited: S. v. Perry, 50 N.C. 256; S. v. Staton, 66 N.C. 642; S. v. Simpson, 73 N.C. 271, 272; S. v. Packer, 80 N.C. 440; S. v. Grandy, 83 N.C. 649; S. v. Merritt, 89 N.C. 507; S. v. Credle, 91 N.C. 644; S. v. Butts, 92 N.C. 787; S. v. George, 93 N.C. 570; S. v. Whiteacre, 98 N.C. 755; S. v. Morgan, ib., 643; S. v. Tytus, ib., 707; S. v. Howe, 100 N.C. 452; S. v. Watkins, 101 N.C. 705; S. v. Craine, 120 N.C. 603; S. v. Freeman, 122 N.C. 1016; S. v. Gentry, 125 N.C. 737; S. v. Jarvis, 129 N.C. 701; S. v. Matthews, 142 N.C. 622; S. v. Harrison, 145 N.C. 417; S. v. Leeper, 146 N.C. 668; S. v. Corbin, 157 N.C. 620.

(432)