
    
      Mowbray v. The Commonwealth.
    June, 1841.
    Forgery — Commitment lor Forging and Uttering— Effect. — A person examined in county court on a .charge of forging an order, and committed by that court for trial in circuit superior court for .the forgery only, cannot he tried there for uttering and publishing the order.
    Indictments — Counts for Distinct Offences — Effect.— Therefore, if the indictment against the prisoner contains counts for the forgery, and counts for uttering and publishing, the circuit superior court ought to quash these latter counts.
    Same — Defective Counts — Effect upon the Good Counts in Cases of Penitentiary Crimes. — The rule of practice in criminal cases, that ii an indictment contain several counts, some good and others faulty, and a general verdict of guilty be found, the bad counts will not effect the validity of the good, and j udgment will be given on those which are good,— is not applicable to cases of penitentiary crimes in Virginia, where the jury is to ascertain the term of imprisonment, since the evidence on the bad counts may aggravate the punishment imposed by the verdict. v
    Error to a judgment of the circuit superior court of Kanawha, whereby Mowbray was sentenced to three years imprisonment in the penitentiary.
    The indictment against him contained seven counts. The first four of them were alike, only varying from each other in minute particulars, which it is unnecessary to mention, and charged him with having felo-niously forged, procured to be forged, and assisted in forging, the following order in writing, directed to Lewis Ruffner and company, to wit, “ Kan : Salines, Dec. 22nd 1840. Messrs. Lewis Ruffner & Co. Please let the bearer have twelve dollars in the store, and ch’d A. Donally by V. B. D.” The last three counts varied likewise from each other in some immaterial particulars, and charged the prisoner with having feloniously uttered and published as true, and attempted to use as true, for his own benefit, a certain other forged and counterfeited order in writing (setting out the same order recited in the first four counts).
    Upon the arraignment of the prisoner, and before he pleaded, his counsel “moved the court to quash the whole indictment, and each count thereof, because the offences charged therein were variant and different from the offences for which the prisoner was tried by the examining court, and sent on to be tried in the circuit superior court.” And in support of this motion he produced a copy of the record of the examination of the prisoner in the county court of Kanawha, whereby it appeared, that the prisoner was examined there, and remanded for trial in the circuit superior court, upon the charge of forging the order only, and not at all on the charge of uttering the forged order. The court overruled the motion, and the prisoner’s counsel excepted.
    The prisoner then pleaded not guilty, and was put upon his trial. The jury found him “ guilty of the charges as in the indictment against him alleged, and ascertained the term of his confinement in the public jail and penitentiary house to be three years.” And the court passed sentence on him accordingly.
    Upon the petitiori of the prisoner, this court allowed him a writ of error to the judgment.
    
    G-reenhow for the prisoner.
    The attorney general for the commonwealth.
    
      
      Indictments — Counts — Forgery. — The principal case is cited in Scott v. Com., 14 Gratt. 689; foot-note to Linkouns v. Com., 9 Leigh 608; foot-note to Page v. Com., 9 Leigh 683; foot-note to Com. v. Cohen, 2 Va. Cas. 158; footnote to Com. v. Ervin, 2 Va. Cas. 337; Dowdy v. Com., 9 Gratt. 731, 732; Hausenfluck v. Com., 85 Va. 710, 8 S. E. Rep. 683; Jones v. Com., 86 Va. 952, 12 S. E. Rep. 950; State v. Smith, 24 W. Va. 817.
    
    
      
      Same — Defective Counts — Effect.—Eor a discussion of this question, see the principal case cited in foot-note to Kirk v. Com., 9 Leigh 627; Clere v. Com., 3 Gratt. 618. and note; Rand v. Com., 9 Gratt. 749; Shifflet v. Com., 14 Gratt. 672; Richards v. Com., 81 Va. 115.
      See monographic note on “Indictments, Informa-tions and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
      In order to understand the points adjudged in this case, it is necessary to advert to the following provisions of the statutes of Virginia—
      1. The statute regulating criminal proceedings against free persons, 1 Rev. Code, ch. 169, after providing for the examination of free persons charged with crimes by the county and corporation courts, and for the commitment of them for trial in the circuit superior courts, in case the county or corporation courts shall think they ought to be there tried; and providing that if the accused shall be acquitted or discharged by the county or corporation court on such examination, such acquittal or discharge shall be a bar to further prosecution for the same offence ¡ — enacts (§8, p. 661,) that “before any person charged with treason or felony shall be tried before any circuit superior court, he or she shall be examined, in the manner prescribed by law, by the court of the county or corporation wherein such offence was committed, unless such examination be dispensed with by the assent of the prisoner entered of record in such circuit superior court.”
      2. The statute against thefts and forgeries &c. Id. ch. 154, § 4, p. 579, enacts, that if any free person shall falsely make, forge or counterfeit &c. — any letter of credit or other writing, to the prejudice of another’s right — or shall, with like intent, utter or publish as true, any false, forged or counterfeited paper or writing, knowing the same to be false, forged &c. — such person shall be deemed guilty of felony; and being lawfully convicted thereof, shall be punished by confinement in the public jail and penitentiary for not less than one nor more than ten years. Which was so altered by an act of March 1826, Supp. to Rev. Godefch. 237, § 1, p. 299, that the imprisonment shall not be less than two years.
      And 3. by the statute concerning the penitentiary. 1 Rev. Code, ch. 171, § 12, p. 619, in all cases where the punishment is imprisonment in the penitentiary, the jury which convicts, ascertains by its verdict the term of imprisonment. — Note in Original Edition.
    
   G-HOLSON, J.,

delivered the opinion of the court. The motion of the prisoner which the court overruled, was a motion “to quash the whole indictment, and each count thereof.” Construing the motion in such manner as to give to all its parts their full and fair meaning, we deem it, not as a motion or as only equivalent to a motion to quash generally, but that it embraced a motion to quash each of the counts of the said indictment, singly and separately. . And so viewing it, this court is of opinion, that the circuit superior court erred in wholly overruling it. The prisoner had been examined by the county court, and sent on to be tried of and concerning the offence of having feloni-ously forged the order in writing set out in the indictment, and for that offence only. But he was arraigned in the circuit superior court on an indictment, which not only contained four counts for forging the order, but also three other counts charging him with having uttered and published it as true &c. The last three counts were “improperly inserted in the indictment: they charged, not degrees of the same offence charged in the preceding counts, but (according to the decision of this court in Page’s case, *9 Leigh 683), a distinct substantive crime. Being a distinct crime, the circuit superior court had no jurisdiction to try the prisoner therefor, until he had been regularly examined by the county court, and sent on to the circuit superior court to be tried for it according to law, M’Caul’s case, 1 Virg. Ca. 271, 300 ; Mabry’s case, 2 Id. 396 ; Huffman’s case, 6 Rand. 685, but the three counts being improperly contained in the indictment, the motion of the prisoner’s counsel to quash each one of them was legal and in order, Com’th v. Cohen, 2 Va. Ca. 231, and ought to have been sustained.

It is then proper that we should reverse the judgment of the court below, which overruled the prisoner’s motion. But what more ? Shall we > arrest the judgment and direct a new trial ? — or shall we sustain the verdict of the jury, because it was general, and the indictment contained some good counts ? This is a question not entirely free from difficulty. The english rule is broad and general, that one good count in an indictment is sufficient to sustain a general verdict of guilty, however defective the others may be. The soundness of this rule we do not question, — and we deem it to be the law of V irginia as well as Bngland : but we do not think it applicable to the case now under consideration, nor indeed to many cases of general verdicts which may arise under our criminal laws. In JBngland, it is always true and always applicable, because there juries in criminal cases never do more than find the guilt or innocence of the accused, and the nature and quantum of the punishment are fixed by law or confided to the courts. In Virginia, it is always applicable and always true, except in certain cases where the funciions of juries in criminal cases have been extended and enlarged by statute; or, in other words, whenever the province of a jury in Virginia is the same as it would be in a like case in Dngland, the same rule is *applicable here as there. But owing to several causes-, especially the introduction of the penitentiary system, we have, in relation to a large class of crimes, considerably enlarged the powers and duties of juries in criminal cases, and clothed them with functions entirely unknown to the english law. Thus, in the trial of nearly all offences punishable with imprisonment, we have required our juries not only to say whether the accused be guilty or not guilty, but, if guilty, to say also what shall be the quantum of punishment. Such verdicts as these are clearly not those general verdicts of guilty merely, contemplated by the english law, and to which the rule now under consideration was intended to apply. The rule is sound and philosophical when applied to verdicts limited to the simple issue of guilty or not guilty ; because it cannot by possibility operate in such case to the injury of the accused. A general verdict of guilty declares the accused guilty of each and every count in the indictment, and if all were quashed but one, the verdict would still be the same, guilty, and no more. A discovery of defective counts, or a misjoinder of counts, might change the judgment of the court, but it could not affect the verdict of the jury, Bar different, however, would be the operation of the rule on those general verdicts under our law, which not only declare the guilt but ascertain the punishment of the accused. They find the prisoner guilty on all the counts of the indictment, and declare generally that he shall suffer imprisonment for so many years. Who shall say how they proportioned the punishment to the various offences ? We cannot charg'e them with the folly or injustice of having" punished some of the offences and pardoned others, after having found the prisoner equally guilty of all. How shall this court measure or estimate the verdict of the jury in the case of Mowbray ? It fixed his term of imprisonment at three years : did the jury intend to confine him two years for *the forgery, and one year for the uttering the forged order, or vice versa ? or did they intend to punish one offence and pardon the other ? if so, which ? But if the english rule, which we are now considering, be applicable to this case and others like it, we are bound to apply the entire finding of the jury to four out of the seven charges contained in the indictment, and to visit upon four offences a quantum of punishment which the jury themselves declared they intended to inflict on seven. Ray, had the jury doubled or trebled the amount of punishment, arid we should decide to quash every count of the indictment but one, the whole punishment would have to be visited on the isolated offence left, though it was the least, and though we might know from the declaration of every juryman, that but a trivial portion of the punishment was intended for it. But to place this question beyond doubt, let us suppose the jury in this case to have transcended the maximum punishment prescribed by law for the crime of forgery : can it be conceived that we would sustain the verdict after having stricken from the indictment the charge of every other offence whatever ? And yet, if the distinction we have taken above be not correct, the english doctrine would apply in all its force, for there would stand the general verdict of guilty, and the one good count in the indictment.

For these reasons, we are satisfied that the rule does not apply to cases in which the jury is required not only to pass on the guilt of the accused, but also to ascertain the amount of the punishment; and where, from the finding, it cannot be known in what manner the jury intended to apportion the punishment.

It is therefore the opinion of this court, that the circuit superior court erred in refusing to quash the last three counts of the indictment, and that as that error probably affected the verdict of the jury, the judgment on the verdict ought to be arrested.

*FRY, J.

I must dissent from the judgment of the court in this case. Admitting that the circuit court on the authority of Page’s case, ought to have quashed the counts which charged offences for which the prisoner had not been examined in the county court (which one of the judges thinks the circuit court was not bound to do, because the prisoner did not point his exception to those counts), I am yet of opinion, that there is no error in the judgment of which 1he prisoner can complain. He is indicted in four counts for forging a paper, and in three others for uttering the same paper. Before pleading, he moved to quash the indictment, and each count thereof, because they were variant and different from the offence for which he had been examined. And it appeared, by the production of the record, that he had been committed and examined for forging the paper, but not for uttering it. His motion was overruled, and he pleaded not guilty. Whereupon he was tried, and the jury find him “guilty of the charges as in the indictment against him is alleged, &c.”

Each count is regarded as a separate indictment, and is supposed to present a distinct offence. 1 Chitt. Cr. Law 249, Linkous’s case, 9 Leigh 612. It is a rule of the common law, that if any count be good, and the prisoner be convicted generally, or upon the whole, judgment shall be entered upon the count that is good, notwithstanding the other counts are bad. 1 Chitt. Cr. Law 249. If two or more distinct offences are charged in an indictment by separate counts, the prisoner can neither demur nor move in arrest of judgment: his only mode of objecting to them is “by an application to the court to quash the indictment before plea, or to compel the prosecutor to elect which charge he will try in a subsequent stage of the proceedings. But the court will only listen to such request, when they see that the charges are actually distinct, and may confound the prisoner, or distract the attention of the jury.” Ibid. *In Harman v. The commonwealth, 12 Serg. & Rawle 72, Tilghman, C. X, said — “It may be proper to remark, that where two offences are charged in separate counts, if the defendant can make it appear, that this mode of proceeding will subject him to unreasonable difficulty or embarrassment on the trial, the court have it in their power to protect .him, by quashing the indictment, or compelling the prosecutor to elect on which count he will proceed, and discharge the defendant from the other.” In The People v. Rynders, 12 Wend. 429, we have the case of a prosecution for forgery, with some counts for uttering the forged paper, and others for the forging it. A motion was made to compel the prosecutor to elect for which offence, and upon which class of counts, he would proceed to try the prisoner. The motion was denied ; and the court said : “That there would be an incongruity in incorporating in the same indictment, offences of a different character, such for instance as forgery arid perjury, cannot be denied, and that in such case, a court would refuse to hear a trial upon both, there can be no doubt; but when offences of the same character, differing only in degree, are united in the same indictment, the prisoner may and ought to be tried on both charges at the same time. Such is this case. The prisoner was indicted for forging the check, and also for publishing it as true, knowing it to be false. These are different offences, and punished with different degrees of severity, but were properly united, both in the indictment and trial. The prisoner might be convicted of one, and not of the other.” See also The People v. Gates, 13 Wend. 311.

Let us apply these principles and authorities to the case before us. Admit the court ought to have quashed three counts of the indictment, and to have sustained four, and that the prisoner has been tried upon the whole seven; what is the legal effect of the verdict of the jury? Simply this, and no more: We find the *prisoner guilty of the felonies charged upon him, in the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th counts of the indictment, in manner and form as therein alleged against him &c'. Nay, this is, substantially, the very words of the finding: he is guilty of the charges alleged against him in the indictment : and the indictment consists of all its counts; the whole comprehends every part. Here is a verdict, then, upon the seven counts of the indictment, expressly finding the prisoner guilty upon each count, of the crime in each count alleged, in manner and form as laid. Say, that on three counts the finding should be set aside, and the counts quashed; why should the finding on the other four be disturbed ? They are complete ; the prisoner was triable upon them ; there is a verdict on each, and judgment. If the verdict on three counts be in vain, why should this make it void as to the other four? Let us consider that as done, which ought to have been done, and the three counts quashed, and the prisoner as. to them acquitted or discharged; yet there are the other four counts, and verdict upon each. Do they not support the finding and judgment ? And wherein does the case differ from any other case, in which there has been a finding on all the counts, yet there are some which the court ought to have quashed, or on which they ought to arrest the judgment ? Por myself, I do not perceive the difference.

It is said the verdict is general, and the jury may have found only on the faulty counts. The answer is, that this is against the record; against the legal effect of the finding, as before mentioned, which applies to all the counts; against the very words of the finding.

But it is said, if the finding was for the forgery as well as for the uttering, the jury have punished but one only. This is true. Yet it is no error of which the prisoner can complain. It is for his benefit. He might as well allege, that he has not been punished seven * times, once on each count, —as that he is not twice punished, once for the forgery, and once for the uttering. If prisoners may obtain new trials, where there are several counts, and general verdicts, or verdicts upon all, and but one offence punished, I apprehend half the prisoners in the penitentiary might obtain them.

If it be said, there being but one crime punished, it is proof that the jury did not find on all the counts, I answer, as before, that this is against the finding itself ; and is, besides, no necessary consequence. The jury may find a prisoner guilty on all the counts, yet find imprisonment on but one : and this is every day’s practice where there are more counts than one, and general verdicts. Looking at the record only (apart from any thing extrinsic), there were seven several offences (for each count, we have seen, presents a distinct offence) and though the verdict and judgment inflict imprisonment for one only, this is for the benefit of the prisoner; if error, it is error only against the commonwealth.

Then, as to the argument, that the prisoner may have been prejudiced on his trial upon the four property counts, by evidence being offered under the three which ought to have been quashed, and that this prejudice may have been twofold, first embarrassment in his defence from evidence of two crimes instead of one, and next, increase of the term of his imprisonment for the one for which he is punished. As to the first, I think it sufficient to say, that the prisoner did not address his motion to the court on any such ground. He moved to quash because the indictment varied from the offence for which he had been examined in the county court. And we have seen that he must call the attention of the court to the subject, and satisfy it that he will be prejudiced on his trial; and that the court will exercise a sound discretion, and quash only where such prejudice will arise. But the case of The People v. Rynders shews that if the attention of the court had been called to the subject of prejudice on the trial, it would not have granted the motion on that ground. And in support of this case, and to shew that the prisoner could not be surprised or prejudiced by evidence of his uttering the paper with knowledge of its being counterfeit, I may here remark, that evidence of such uttering would be proper on the trial for forgery. It would prove the in-, tent with which the paper was forged. Por if he had forged and never uttered, or offered to use it, it might be difficult to establish that he had made the false paper malo animo. At all events, such evidence would be proper to shew the mind or intent in the forgery.

To pursue the subject of prejudice on the trial, further: Such prejudice would arise in every case, where the prisoner was indicted, in the same indictment, for more than one offence, and for all of which he had been properly examined. As, for example, where he is indicted for passing two bank notes to the same person at different times. If the prisoner for any cause (suppose for defects in the counts, or irregularity in the finding by the grand jury) should move to quash them, and afterwards plead, and 'be 'convicted : would (not the court who tried him, and who knew the evidence, and the incidents of the trial, but) the appellate court, of its own mere motion, take up the subject with a view to its possible prejudice to the. prisoner on the trial, and award him a new trial upon that ground ? I apprehend not, and that there is no precedent of' any such case.

In point of fact, the appellate court cannot know that the prisoner was prejudiced or embarrassed. It cannot know what the evidence was, as it is not in the record. And in truth the prisoner never presented the subject to the court, in any way.

Suppose, on this head of embarrassment or prejudice at the trial, the jury had acquitted the prisoner on the three counts objected to, and convicted him on the other four : would this court be prepared to grant a new trial ? If not, I humbly think it is conclusive to shew they •should not in the present case. Por it is obvious, his embarrassment or prejudice may have been the same, whether acquitted or convicted on the three counts; since, though acquitted, he was tried upon them improperly, and much evidence may have been given in support of them, and much contest had about it before the jury. Yet, I feel assured, the court in such case would not grant a new trial.

Nor do I think they ought to grant it, because the imprisonment may have been enhanced for one crime, from evidence having gone to the jury of others. To assume this, would be to say there could be no trial of a prisoner on an indictment which charged more than one offence. If convicted of more than one, the evidence of double guilt offered to the jury may have served to corroborate each charge, to contribute to the conviction for each, and to enhance the punishment of each ; and, if acquitted of one charge, and found guilty of another, it may be said, the evidence, though shbrt of proof of legal guilt on one, may have shewn circumstances of suspicion, or of moral delinquency, which served to fix the other charge, or increase its punishment. I do not think any such ground for a new trial was ever sustained. Trials may be, and often are, had on the same indictment for more than one charge ; — and this, too, where the party has been acquitted of some and found guilty of other charges, or judgment arrested on some counts and given upon others : yet I never heard it objected before, that the evidence of one charge might have sustained another, or aggravated its punishment, and that therefore the party was entitled to a new trial.

If it be said, the jury have punished for more than one offense, because they have exceeded the minimum, I answer, this is against their finding : for, if they had punished for two offences, they must have found four years of imprisonment, since the minimum for all the offences charged is two years. If they had found two years only, it seems it would have been considered sufficient, as precisely equivalent to the finding of guilty, at the common law, where the court adjudged the punishment. But the finding of three years stands upon the same footing, with that of two; fpr the. latter would be good only because it is a finding, necessarily, on one count; and the finding of three years can be no more, unless upon the idea that the evidence under the counts excepted to, added one year to the punishment given for. his guilt upon the others ; which I have attempted to combat. It is true, that if the imprisonment had been for four years or more, the reasoning, of the court in this cas.e might apply.; though I believe, that when the jury convict, in point of fact, for two or more offences, they attach a specific punishment t,o each, and judgment for consecutive imprisonment follows.

In conclusion, I have .to say, that I sat in Page’s case, and that I think, its doctrine ought not to be extended. Neither the counsel, nor the court, I am sure, thought the prisoner would have been entitled to a new trial, if the verdict had found him guilty of the uttering. The question was, whether the verdict responded at all to the counts for uttering, as it found him guilty only of the forgery: had it found him guilty of the uttering' also, it was supposed no question could have been raised'upon it.

LEIGH and NICHOLAS, J.,

also dissented from the opinion of the majority of the court.

Judgment — that the circuit superior court erred in refusing to quash the last three counts of the indictment; therefore, judgment reversed; and this court proceeding to give such judgment as the circuit superior court ought to have rendered on the prisoner’s motion to quash the last three counts of the indictment, it is considered that the said last three counts be quashed, &c.

And it appearing that the prisoner had been removed to the penitentiary according to the sentence of the circuit superior court, a habeas corpus was awarded, directed to the superintendent of the penitentiary, to bring the prisoner before this court; upon the return of which, the court committed him to the jail of Henrico county, to be thence conveyed by the sheriff of Henrico to the jail of Kanawha, and delivered to the custody of the jailor thereof, in order that' the prisoner should have a new trial on the first four counts of the indictment. 
      
      Note by Fry, J. — When this case was decided, I had not seen Kirk’s case, 9 Leigh 637, nor was it adverted to in the discussion of the present case. It may be referred to, I think, as strongly supporting the views I have taken in this opinion. — Note in Original Edition.
     