
    Henry Huffman v. The Commonwealth.
    November, 1823.
    Forgery— Remanding for Trial — Indictment for Forgery Procuring lnstrument. — If an Examining Court remand to the Superior Court for trial, a prisoner charged with forgery, the prisoner may be indicted in the Superior Court, not only for the forgery, but also for procuring the instrument to be forged, and for acting and assisting in the forgery.
    
      Same — Same—Same-Sufficiency oí. is not necessary to set forth in the count, the persons whom the prisoner procured to forge the instrument, or with whom he acted and assisted in the forgery. A general description, in the words of the Statute, is sufficient, -
    Same — Indictment — Sufficiency of.— An Indictment which charges that the prisoner caused and. procured a certain instrument to be forged, and willingly assisted in the forgery, &c. is to be understood as charging that he caused it to be done in his presence, and that he aided, being present, in other words, as charging him as principal in the second degree, and not as accessary. See Rasuick’s Case. 2 Virg. Ca. 356.
    Same — Examining Count — indictment.—If an Examining Court remand a prisoner, on a charge of passing a forged note, he may be indicted for passing it, knowing it to be forged.
    Indictment — Counts— Sufficiency oi — In a Bill of Indictment with three counts, if in the third count it is omitted to he stated that the Grand Jury “on their oath” present, (the first two counts being regular in that respect,) the objection is obviated by tb e fact, that the Record states, that the Grand Jury were sworn in open Court.
    Forgery — Evidence—Case at Bar. — A forged paper is passed by a prisoner bearing date in 1828: immediately after, with the knowledge of the holder, the prisoner alters the date to 1827. The Indictment ' sets forth its tenor, and describes it as dated in 1827. The paper is proper evidence to go to the Jury in support of the Indictment, notwithstanding the proof that it bore date in 1828, when passed.
    This was an application for a Writ of Error to a Judgment of the ' Superior Court of Law for Hampshire County, *whereby the petitioner was sentenced to the Penitentiary for the term of two years, on a conviction of forgery.
    From the transcript of the Record filed with the petition of the prisoner, the following statement is extracted, A Court was called and held in the County of Hampshire, in March, 1828, for the examination of the prisoner, upon the charge of having “feloniously forged and counterfeited, and passed a single bill • or note, purporting to be a note made by William Duling with his seal thereto affixed, for the sum of fifteen dollars, bearing date the 28th December, 1827, and made payable to Henry Huffman, twelve months after date;” it is charged to have been passed “to a certain William Sherrard. ” The single bill, and assignment by Huffman to Sherrard, thereon endorsed, are in the following words and figures:
    “Twelve months after date I promise to pay Henry Huffman or his assigns, the just and full sum of 15 dollars for value received of him. As witness my hand and seal this 28th day of December, 1827.
    “William Duling, (Seal.)”
    “March 13th, 1828. I assign the within amount to William Sherrard for value received.
    “Henry Huffman.”
    It was proved before the Court of Examination, as appears from a memorandum of the evidence as recorded, that the said single bill had not been executed by William Dul-ing; that the prisoner carried it to the store of William Sherrard, and there sold it for goods. The transaction on the part of Sherrard, who was not present, was negotiated by Charles Blue, his Clerk in the store'. The Court of Examination was of opinion that the prisoner was guilty, and remanded him to Jail to undergo a trial, for the offence with which he stood charged, before the next Superior Court oí Eaw.
    At the next Superior Court of Law, the Grand Jury- found an Indictment against him containing three counts. The first count charges, that he “feloniously did falsely make, *forge and counterfeit, and did feloniously cause and procure to be falsely made, forged and counterfeited, and feloniously did act and assist in the false making, forging and counterfeiting a certain false writing,” &c. describing and setting forth in hasc verba the single bill before-mentioned, and averring it to have been done “to the prejudice of the right, and with intent to injure and defraud the said William Duling.” The second count charges, that he “feloniously did utter and publish and employ as true for his own benefit, a certain other false, forged au.d counterfeited writing,” describing again the same single bill, and setting it forth according to its tenor and effect, and charging the intent to have been “to injure and defraud the said William Duling,” and averring that the-pris--oner knew it to be “false, forged, and counterfeited.” The third count is the same as the second, except that the intent is alleged therein to have been “to injure and defraud William Sherrard.” It is not stated upon the face of this count, as it is-in the two preceding, that it was found upon the oath of the Grand Jury.
    The prisoner, upon his arraignment, and before pleading, moved the Court to quash each count in the Indictment, because “there is no substantial offence charged, and because the offence charged in the Indictment is variant from the charge for-which the prisoner was sent on to be tried by the Examining Court.” The motion to quash was over-ruled. The prisoner then pleaded not guilty, and was put on his trial by a Jury.
    Upon the trial, the Attorney for the Commonwealth offered in evidence a single bill, corresponding with the one set forth in the Indictment. The prisoner objected to its going in evidence to the Jury. The Court over-ruled his objection, and the prisoner filed a Bill .of Exceptions to the opinion of the Court, which states, that on the trial of this Indictment, Charles Blue, a witness in behalf of the’Commonwealth, produced a single bill, set forth in the Indictment, and testified. “that on the 13th day of March, 1828,-*he was in the employment of William Sherrard, of Hampshire County, in the capacity of clerk in the store of the said Sherrard, who was a merchant; that the prisoner on that day took up sundry goods in the store of said Sherrard, in payment of which, he assigned said paper-writing to William Sherrard: that about half an hour after making the assignment, the witness discovered that the paper-writ-' ing was dated in the year 1828; upon which, he stated that circumstance to the prisoner, who remarked to the witness that it had been so dated by William Duling by mistake; and therefore, he, the prisoner, (the said paper-writing being handed to him for that purpose by the witness,) with the assent of the witness, with the pen-knife of the witness, erased the figure 8, and made in lieu thereof, with pen and ink, the figure 7, so as to change the date from 1828 to 1827;” and then returned the single bill to the witness. Upon this evidence the prmoner contended, that the instrument had not been properly described in the Indictment, and being variant from the single bill therein set forth, should be therefore excluded from the Jury, which the Court refused.
    Samuels, for the petitioner,
    argued in writing to the following effeci:
    1. That the motion to quash each count, ought to have been sustained. As to the first count, there was a variance between it and the record of the Examining Court. By the Indictment, the prisoner is charged with three distinct offences: 1st, the forging and counterfeiting; 2d, the causing and procuring the single bill to be falsely forged and counterfeited; and 3d, the acting and assisting in the false forging and counterfeiting the said instrument. But, he was only examined for one of these offences; namely, the forgery. He contended, that the fact of forgery does not ex vi termini include the other two facts: that, the Legislature thought it did not so include them, or they would not have provided separately for the other two offences: *that the fact of forgery may exist in the absence of the other two classes of facts, which shows, that it does not include them. He concluded, that as the prisoner was indicted for a greater number of offences than he had been examined for, the Superior Court had no jurisdiction of these latter offences, and that therefore the first count ought to be quashed.
    2. That the first count was defective in itself, in not setting forth the person or persons who the prisoner caused and procured to forge the instrument, and those with whom he willingly acted and assisted in the forgery. The persons ought to have been designated, to enable the prisoner to prepare for his defence, and to plead the Judgments in bar of other prosecutions for the same offences.
    3. He contended that the first count confounded principal and accessorial guilt. If the procurers or aiders are present, they are principals in the second degree, but if absent, they are accessories, and must be indicted specifically as such, as is agreed by the General Court, in Kasnick v. The Commonwealth, 2 Virg. Ca. 356. Here the count does not aver either the presence, or the absence of the prisoner at the procuring or aiding the forgery to be done, and it is therefore entirely uncertain whether the prisoner is charged as principal or accessory. For this want of certainty. the count ought to have been ■quashed. He drew the distinction between this cuse and Rasuick’a. There the prisoner did not demur to the count, nor move to quash it, before plea, but it was on a -motion to arrest the Judgment, and the , ¡General Court seems to have proceeded on the ground that '‘after verdict on such Indictment, the count must be understood as charging the procurers and aiders as principals in the second degree.” But in this case there was a motion to quash befóte plea, and the case is to be considered as on demurrer. If it is supposed that thedegrees of guilt are to be ascertained by the evidence, such supposition ought not to avail. The Indictment itself ought to set out the offences charged as criminal, *and they should be so charged as to leave nothing to intendment. Whatever the evidence may be, the vice inherent in this count, that it does not inform the prisoner whether he is charged as principal or accessory, ought to overthrow it.
    4. He objected to the second and third counts. In the Examining Court he was charged with passing the instrument. He might have passed it without being guilty of any crime, for he may riot have known that it was counterfeit. But the second and third counts go further, and charge that he passed it, knowing1 it to be false, forged and counterfeited. He is therefore indicted for an offence for which he had not been examined, and both counts ought to have been quashed.
    5. The third count is defective in another particular. It commences thus: “And the Jurors aforesaid, do further present,” omitting the words, “upon their oath aforesaid,” arid soil is not a valid Presentment.
    6. The single bill ought not to have gone in evidence to the Jury. From the Bill of Exceptions, it appears, that the single bill, when it was passed to Blue, the clerk, bore date the 28th December, 1828, a day then yet to come: that after the bill had been passed, and the goods received by the prisoner, and the transaction closed, it was discovered that the bill was dated on that day; this fact was communicated by Blue to the prisoner, and by the consent of Blue, and in his presence, the prisoner erased the figure 8, and inserted 7 in lieu thereof: by this erasure neither Blue nor Sherrard was defrauded. When the single bill was first passed to Blue, it bore date the day before mentioned. It is charged in the Indictment to have been dated on the 28th December, 1827, and is therefore different from the bill as originally passed, and consummated. If the bill was forged by Huffman, it was so done before it was altered, and the paper described in the Indictment is in fact different from the paper as it was when passed to Blue.^
    
      
      Forgery. — See monographic note on “Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865.
    
    
      
       Same-Remanding of Examining Court — Indictment. — On this subject, the principal case is cited in Com. v. Adcock, 8 Gratt. 670.
      Same — Indictment — Distinct Charges. — There are some cases of felony in which, even though the charges are distinct, the prisoner would not be confounded or the attention of the jury distracted: and in which, therefore, the charges may properly be included in the same indictment and tried together: as, for example, the case of forgery and uttering the same instrument, which are distinct offences, and yet are often charged m diiferent counts of the same indictment. Dowdy y. Com., 9 Gratt. 732 citing the principal case as authority. See principal case also cited in Hausenfluck v. Com., 85 Va. 710, 8 S. E. Rep. 683. See further, monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
      Criminal Law — Indictment—Charging Offence in Words ot Statute. — where an indictment charges an offence in the words of a statute creating the offence, the indictment as to the description of fact is good. Brown v. Com., 2 Leigh 772. citing principal case as so holding. See further, on this subject, monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674. The principal case is also cited in Mowbray v. Com., 11 Leigh 646.
    
   *FH3LD, J.,

delivered the opinion of the Court.

[After making the slatement prefixed to this report, he proceeded.]

In his petition for a Writ of Error, the prisoner coni ends, that the Superior Court of Law should have quashed each count in the Indictment for the reasons there assigned; and should have quashed the third count for the additional reason oí its not appearing upon its face to have been upon the oath of the Grand Jury. He also contends, that the single bill should have been excluded from the Jury, for the reason assigned in the Bill of Exceptions.

The Court has attentively and maturely examined and considered the transcript of the Record in this case, and the written argument of Counsel in tbe Country, 'Sled in support of the petition, and is of opinion that there is no error in the Record. It is an established general rule, that where an Indictment, as this does, charges an offence.in the words of the Statute creating the offence, the Indictment as to the description of the fact, is good. In Arch-bold’s Criminal Pleading, p. 188, and in Chitty’s Crim. Law, vol. 3, p. 1,049, may be found the form of an Indictment upon the English Statute of Forgery of 52 Geo. 3, ch. 138, which our Statute on the same subject resembles. It charges, that the prisoner “feloniously did falsely make, forge 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, &c.-with which form, the Indictment in this case corresponds.

The only seeming difficulty upon this point, arose from the Act of Assembly in relation to Courts of Examination, which secures to the prisoner the right of being examined, upon a charge of felony, by a Court of Examination, composed of five or more of the Justices of the County Court, before he shall be indicted and tried for the alleged crime in the Superior . Court of Law. The first count of the ^Indictment in this case, charges inter alia, that the prisoner caused, and procured the forgery to be committed. In the Court of Examination, he was charged with having “feloniously forged, counterfeited, and passed,” the single bill in question, which the prisoner contends, does not embrace the accessorial offence of causing and procuring a forgery to be committed by another person. If it were conceded that the charge which was made against the prisoner before the Court of Examination, and upon which he was examined, is not sufficiently comprehensive to embrace a case of accessorial guilt, properly so called, as where one man, being himself absent at the time, causes and procures another to make a forged writing, which at Common Law would constitute the absent procurer an accessory before the fact, still there would be no weight in this objection. The “causing and procuring,” charged in the Indictment, contemplates a causing and procuring the forgery to be committed by some other person in the presence of the prisoner, which would render him a principal felon in the second degree, and consequently proof of accessorial guilt could not have been received upon the trial.

In looking into the Record of a trial before a Court of Examination, to see for what offence a prisoner has been examined, the Court should regard the substance of the offence, and not the manner in which it may have been perpetrated; nor should the offence be required tobe described rhere with technical precision. The offence charged against the prisoner, and which was examined into by the Court of Examination, was forgery. Whether that offence was committed by the prisoner alone with his own hands; whether he caused and pro-1 cured it to be done by another, or acted and assisted in the commission of the fact, were incidental enquiries. And whatever may have been the proof relative to the main charge of forgery, it was the duty of the Examining Court, if they thought the prisoner ought not to be discharged from further prosecution, to send him on for further trial in the Superior .Court of Law. ^without undertaking to discriminate as to the grade of the offence, or to designate the mode in which it had been committed. Upon these principles, the Court of Examination acted in this case; and it was competent for the Prosecuting Attorney to prefer against the prisoner such an Indictment as has been found.

As to the objection taken to the third count, of its not appearing on the face of it to have been found upon the oath of the Grand Jury, that difficulty is obviated by the fact of the Grand Jury’s having been actually sworn in open Court, before the Indictment was found, as appears from the transcript of the Record filed with the petition ; and therefore, the whole Indictment' must necessarily have been found upon the oath of the Grand Jury.

The only remaining objection to be considered, is that w-hich arises from the Bill of Exceptions. If the single bill therein mentioned, were in its original form a forged writing, it did not cease to be so, by the alteration in the date of the year, as mentioned in the Bill of Exceptions. And if it were in either shape a- forged writing, as it corresponded in tenor and effect with the single bill described and set forth in each count of the Indictment, there was no cause shown for excluding it from the Jury. The Writ of Error is refused.  