
    A. Morris vs. The State of Mississippi.
    Where an indictment contains four counts, and the jury find the defendant guilty on three of them, without any express finding on the other, such finding is sufficient to warrant a judgment, and is tantamount to an acquittal, as to the count upon which there was no express finding.
    On the trial of a party indicted for forging a bank note of the Bank of the State of North Carolina, the circuit court permitted evidence to go to the jury of a supposed attempt by the defendant, three years previously to the trial and the finding of the indictment, to utter some forged bank notes of the Northern Bank of Kentucky; held, that the evidence was maniflstly illegal, and had a strong tendency to prejudice the minds of the jury against the defendant.
    Where a party, charged in four counts in an indictment, is tried and found guilty on three, and acquitted on one of them, and a new trial is granted, the new trial should be confined to the three counts on which he was found guilty.
    ErRor from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge.
    This was an indictment preferred by the grand jury of Lowndes county, against A. Morris, at the April term of the circuit court, in the year 1846. The indictment contained four counts. The first count charged the defendant with making and forging a promissory note, commonly called a bank bill, which was in these words, to wit:
    
      “ The Bank of the State of North Carolina will pay ten dollars, on demand, to A. Smith, or bearer. Raleigh, 1 Jan. 1844.
    “ C. Dewey, Cash’r. D. Cameron, Pres’t,” with intent to defraud the Bank of the State of North Carolina. The second count charged the defendant with uttering and publishing, as true, a forged promissory note, commonly called a bank bill, with the intent to injure and defraud the Bank of the State of North Carolina; which promissory note was in these words, to wit: the same as statedfirst count, which was numbered 516, and marked A. The third count charged him with having in his possession a forged promissory note of the Bank of the State of North Carolina, with the intent to utter and publish the same, knowing it to be forged. And the fourth count was similar to the third. The defendant demurred to the indictment, because the defendant’s Christian name was not set out; it did not conclude against the form of the statute, and was not a common law offence; it did not allege that the state of North Carolina was a corporation or company, by the laws of the United States, or of this state, or of any other state, government, or country, the forgery of which is made punishable by the laws of this state, &c. No disposition appears to have been made of the demurrer. At the October term, 1846, the defendant pleaded not guilty, was tried, and the jury returned a verdict, in these words, to wit: “ That the said A. Morris is guilty of the second, third, and fourth counts in said indictment.” On the trial the district attorney offered to read to the jury, as the forged bank bills or notes described in the indictment, two bank bills, proved not to be genuine, the first of which was in the words and figures following, to wit:
    “ Ten dollars. Ten dollars. Ten dollars. Ten dollars.
    “10. . No. 516. A. 10.
    “X. X.
    “ The Bank of the State of North Carolina will pay ten dollars, on demand, to A. Smith, or bearer. Raleigh, 1 Jan. 1844.
    “ C. Dewey, Cash’r. D. Cameron, Pres’t.
    
    “ 10. Randon, Wright & Hatch, N. York. 10.
    “Ten dollars. Ten dollars. Ten dollars. Ten dollars.”
    And the second was in these words: Exactly like the first, except that it was numbered 417, instead of 516. To the reading of which the defendant objected, on the ground of variance, but the court overruled the objection, and permitted the notes to be read to the jury; to which the defendant filed a bill of exception. The defendant, after the verdict was returned, moved, in arrest of judgment: “ 1st. Because the court permitted improper evidence to go to the jury. 2d. Because the jury found contrary^PPraw and evidence. 3d. Because there was no finding or verdict on, or disposition made of the first count in the bill of indictment. 4th. Because the indictment was insufficient in law, and will not support a judgment of the court, for errors apparent on the face of the record. 5th. Because the ‘record does not show that any such bill of indictment was ever returned in court by the grand jury, a true bill as to three counts, upon which the defendant has been found guilty by the jury.” The court overruled the motion, whereupon the defendant filed a second bill of exceptions, and set out all the evidence adduced upon the trial. From which it appears that the district-attorney read the above described notes to the jury, and proved by John Crusoe and Richard T. Brownrigg, that the signatures of C. Dewey, cashier, and D. Cameron, president, to the notes, were not genuine; and that the same were forged. It was shown that there was such a corporation in North Carolina as that described in the indictment.
    L. D. Carrington testified that a warrant was issued by a justice of the peace for the apprehension of defendant on a charge of having uttered and passed off as genuine, the note No. 516. Witness was present when the constable arrested defendant; they found him in bed, at a tavern in Columbus, in Lowndes county, Mississippi, about three.weeks before the indictment was preferred; that the constable searched defendants person, trunk, carpet bag, bed, and pocket book, and found about ten or fifteen dollars in silver, eighty or a hundred dollars in gold, some Mobile and other kinds of paper money, and five ten dollar bills, similar to those read to the jury; defendant’s pocket-book was found in the pillow-case, near his head; he was observed to have something concealed and wadded up, in his hand, which, upon examination, was discovered to be three of the five forged ten dollar bills, abovementioned. Defendant was taken before a justice of the peace, and committed to jail. Defendant stated that if the note, No. 516, upon which he had been arrested, was not genuine, witness, whose clerk had received it of defendant for goods, might take ten dollars of any other money of defendant’s, in place of it.
    
      Several other witnesses testified to the ss^re facts spoken of by Carrington.
    Sandford, the constable, testified to the same facts that Car-rington did, and in addition, that early the next morning after defendant was arrested, witness went to the tavern and made a further examination of the bed in which defendant was taken the night before, and between the bed and mattress he found a roll of bank notes, all of which were similar to those read to the jury, except two, which were on some bank in Indiana ; that he, witness, carried the roll of bills to the defendant, who stated that they did not belong to him.
    All of these bills, except the two on the bank of Indiana, about which there was no evidence adduced, were then proved to be forged.
    C. D. Warren testified that defendant had offered to pass or exchange two similar bills with him, but he did not like their appearance, and put defendant off.
    Orrall Brown testified that about three years before the trial, defendant passed to him, in Oolumbus, Mississippi, some money in bills purporting to be on the Northern Bank of Kentucky : that afterwards, suspecting the bills not to be genuine, he followed defendant to Aberdeen, and requested defendant to give him other money for them, which he did, stating, at the same time, that he, defendant, supposed the bills to be genuine. Witness did not know whether they were genuine or not.
    This was all the evidence adduced on the trial. The judgment of the court, after stating the style of the case, &c., proceeds thus: “It is now, therefore, considered by the court, that the said A. Morris be now remanded to the jail of this county ; and that, at some convenient time, he be taken from thence by the sheriff of Lowndes county, and conveyed to the penitentiary of this state, and then and there delivered to the keeper thereof. And that the said A. Morris, for the offence aforesaid, do undergo confinement at hard labor in said penitentiary, for the term of ten years. And it is further considered by the court that the said A. Morris pay the cost of this prosecution.” To reverse which judgment the defendant now prosecutes this writ of error,
    
      
      Harris and Harrison, for plaintiff in error.
    1. The name of the prosecutor is not marked upon the indictment. 3 How. 27, 433.
    2. The sentence, or judgment, does not set forth the time from whence the imprisonment shall date. Kelly & Little v. The State, 3 S. & M. 518.
    
      3. The sentence is for forgery; of which offence the prisoner was not convicted. The form of the judgment is, “The State v. Morris. Forgery.” “ That for the offence aforesaid,” &c. This is the only offence mentioned, and being expressly referred to necessarily excludes any other.
    4. The bills offered in evidence were variant from those set out in the indictment. See bill of exceptions as to the words “Rawdon, Wright & Co.” and “signed” and “ and” preceding the names of the president and cashier. The words last mentioned are inserted in the part of the indictment that purports to give a literal copy of the bills alleged to have been forged. None of the precedents set out the forged instruments in that way. 3 Chitty’s Crim. Law, 1065, 1071, 1072, 1075; Arch. Crim. PI. 351, 353; 8 Leigh, 733. It is the method of describing genuine instruments.
    5. There was no joinder in, or disposition made of the demurrer. Nor was there any continuance of record from the April to the October term of the court.
    6. We insist that the return of the grand jury expressly limits and confines their finding to the offence of forgery. The record specifies as to what the finding extends to. It is in substance, “ The State v. A. Morris. Forgery. This day came the grand jury into court, &c., and returned the bill of indictment against A. Morris, for forgery.” This directly negatives the idea that they found upon any count, as a true bill, except the one for forgery.
    7. We contend that the court erred in overruling the motion in arrest of judgment.
    The prisoner was found guilty upon the second, third, and fourth counts. The verdict did not respond to or make any disposition of the first count. The first is for forgery — Bank Note No. 516, letter A; second, for uttering and publishing said note as true; third, for feloniously having in possession a bank note (which is not described at all) and uttering and causing the same to be uttered as true; fourth, for feloniously having in possession note No. 417, letter A, intending to defraud the bank, and then and there uttering, or causing the same to be uttered as true.
    We admit that a general verdict of guilty will be supported, though all the counts in the indictment be l^ad but one, provided the evidence applies to that one. It will be presumed that the jury were controlled in their action by a reference to the good counts. But in the present case the verdict is partial, and the judgment of the court is general. Nor does the evidence apply. The second, third, and fourth counts are all on different bills.
    It will also^be found that there was no evidence of any kind to support the conviction upon the third and fourth counts, or that the prisoner ever saw, or had anything to do with the bills described in said counts. The testimony relates entirely to note No. 516!
    The first count cannot support the judgment, for the jury did not find upon it. The second cannot, because it is bad. It does not bring the offence within the statute. It does not allege that it was a “negotiable” note, issued, or purporting to have been issued by a “corporation” or company duly authorized by the United States, or one of the states, or where the corporation was situated. The People v. Davis, 21 Wend. 309 ; How. & Hutch. 705, § 36.
    There is the same objection to the third and fourth counts. The indictment should be certain not only to a common intent, but against every intendment to the contrary.
    If the words “signed” and “and” do not constitute a variance, as before contended, the use of them amounts to an allegation in the second, and other counts, that the bills were actually signed by the parties thereto, (or whose names appear upon their face,) and the allegata et probata do not agree.
    No one, it is presumed, can contend that the third and fourth counts are sufficient.
    
      
      John D. Freeman, attorney-general, for the state.
    This is an indictment and conviction for the crime of forgery, and is therefore a felony. How. & Hutch. Dig. 726, sec. 24.
    The first error assigned is, “ that there is no prosecutor’s name marked on the indictment.”
    The statute provides that it shall be the duty of the district-attorneys of this state to mark on all bills ofindictment the name of the prosecutor, (How. & Hutch. Dig. 669, sec. 30,) but no penalty is attached for'the neglect of this duty. If, therefore, the district-attorney fails to perform this duty, he is only liable to indictment for neglect of official duty, under art. 6, sec. 3, of the state constitution, and no other consequence follows. The object of the statute is to protect the state against frivolous prosecutions; and in case of inferior offences, to charge the prosecutor with costs. How. & Hutch. 600, sec. 5. This case being a felony, the prosecutor could not be charged with costs, and hence the reason of the law fails. The statute further provides that when the grand jury shall make any presentment they shall write at the foot thereof the name and surname of the prosecutor, or informer, if there be one, and the name of the town or county in which he shall reside, with his title or profession, for the more effectual prosecution of such presentment, &c. No penalty is attached to a neglect of this duty by the grand jury, and, as the common law provides no remedy, the statute is merely a direction to the grand jury, which they may disregard with impunity. 5 Rand. 669.
    A presentment is a bill charging a criminal offence against one or more individuals, preferred on the volition of the grand jury alone, and is only signed by their foreman. 1 Chitty’s Cr. Law, 162.
    An indictment is a criminal prosecution, based on the written accusation of either a private or a public prosecutor, and preferred to the grand jury, and by them indorsed on the back “a true bill,” and returned into court. Arch. Cr. PL 589; 2 Hawk. P. C. ch. 25, s. 1; 1 Chit. Cr. L. 324; 5 Rand. 674. The case at bar is therefore an indictment for a felony.
    It is said that no prosecutor’s name is marked on the indictment, and for this the indictment is sought to be quashed. In the first place the record does not show that there was any prosecutor other than the district-attorney, whose name is attached to the indictment. The law does not require impossibilities, and if there were no private prosecutor the district-attorney would not be authorized to mark one on the indictment. This court will presume the proceedings below to be correct, in the absence of proof to the contrary. The presumption of law, therefore, is, that there was no private prosecutor. It is not essential to the validity of an indictment, or presentment, that the same should be signed by the district-attorney. 1 Chitty’s Cr. Law, 334, and note A. The constitution of the United States requires only that an indictment, or presentment, shall be preferred by a grand jury. Art. 7, sec. 5. The statutes of this state do not require the district-attorney to sign his own name to any presentment or indictment. They are simply required to “ appear and prosecute for the state, in their respective districts, in all criminal prosecutions,” (Flow. & Hutch. 278,) “and to attend the deliberations of the grand jury, &e. and give them the necessary information touching the law and the facts of each case,” &c. Laws of 1844, p. 91. If, therefore, the district-attorney signs his own name to an indictment it is a voluntary act, and an assumption of the responsibility of the prosecution. In this case, then, the district-attorney is the prosecutor.
    The case of Cody v. The Slate, 3 How. 27, is relied on as authority to the reverse of this position. That was an indictment for murder. It does not appear that the name of the district-attorney was signed to the indictment; but admitting that it was not, and that there was, in fact, no prosecutor, I dispute the authority of that case. That case was reversed on other points. The only authority relied on to quash the indictment for the absence of the name of the prosecutor, was that of the cases in 2 Bibb’s Rep. 210, 315. Those cases were decided on a statute of Kentucky, materially different from our statute. That statute provides that “ no information for a trespass or misdemeanor, shall be filed in any court, but by express order of the court, entered upon record,” <fcc., “ and the name and surname of the prosecutor, and the town or county in which he shall reside, with his title, or profession, shall be written at the foot of the information, before it be filed, and of every bill of indictment, for any trespass or misdemeanor, or before it be presented to the grand jury.” See Statute Laws of Kentucky, 531, sec. 38. This statute applies only to cases of trespass and misdemeanor, and not to felonies. The case of Cody v. The State, was neither trespass nor misdemeanor, but murder. The authority relied on does not, therefore, sustain the decision made in that case. Besides, the Kentucky statute prohibited the filing of presentments, or indictments, for inferior offences, unless the name of the prosecutor was marked. Our statute has no such prohibition. The cases in Bibb were dismissed, or quashed, because they could not be filed in court, and not being lawfully filed they were not before the court, and the court could not take jurisdiction of them. No such disability arises under our statute. In Pennsylvania no person is obliged to answer to any presentment, or indictment, unless the prosecutor’s name is inserted therein. 1 Smith’s Laws of Penn. 56. In Michigan a prosecution, at the instance of a private person, cannot be filed, unless the prosecutor’s name is given. Rev. Stat. of Mich. 56. In Virginia, the statute provides that the “name and surname of the prosecutor shall be signed at the foot of every bill of indictment for any trespass or misdemeanor, before it is presented to the grand jury.” Yet in the case of Northen v. The Commonwealth, the court refused to quash the indictment for this defect. 5 Randolph, 669. At common law an indictment could only be quashed for a defect in the caption, or in the indictment itself. The name of the prosecutor, under our statute, forms no part of the caption, or of the indictment. It is a mere direction to the district-attorney, after the indictment is found, (because a bill presented to the grand jury is not an indictment until the jury indorse it a true bill,) to mark the prosecutor’s name, without prescribing any disability or penalty arising therefrom. The only advantage which the defendant could take of the neglect of the district-attorney to mark the name of the prosecutor, would be to indict him for neglect of duty; and if on such indictment the district-attorney proved there was no private prosecution it would bar the indictment.
    2d. The sentence of the court is admitted to be defective, in not stating the time at which the imprisonment is to commence; but this does not affect the verdict, and the defendant will be returned to the circuit court for a re-sentence. 3 S. & M. 528.
    The 3d assignment, that the indictment does not conclude contra formam statuti, is falsified by the record.
    The 4th assignment, that the bills read in evidence did not correspond with those described in the indictment, is also untrue in fact. With the exception of ciphers and hieroglyphics, they are, verbatim, the same. See 1 Wheeler’s Crim. Cases, 195 ; 2 Binney, 332; 3 Johns. 299 ; Roscoe’s Cr. Ev. 462.
    5th. The motion in arrest was correctly overruled, for the reasons heretofore given.
    6th. The record shows a demurrer undisposed of; but the defendant subsequently plead not guilty, which was a waiver of the demurrer, and disposed of the same as effectually as if the demurrer had been sustained by the court.
    7th. The statute continues all cases undisposed of, without any order of court.
   Mr. Justice Thacheb.

delivered the opinion of the court.

This is an indictment preferred by the grand jury of Lowndes county, against A. Morris, charging him in four counts: 1st. With the forgery of a bank-note of the Bank of the State of North Carolina. 2d. With uttering and publishing as true a forged bank-note of the Bank of the State of North Carolina. 3d. With having in his possession certain forged bank-notes of the Bank of the State of North Carolina, with the intent to utter the same. 4th. Comprising allegations similar to those of the third count.

The verdict of the jury was, that the prisoner was guilty upon the second, third, and fourth counts, without an express finding upon the first count.

The objection to this verdict, that it is imperfect in not containing an express finding upon the first count, was examined in the case of Joel Swinney v. The State, ante, 576. And in that case, we held that such a finding was sufficient to warrant a judgment; and that it should be considered as tantamount to an acquittal upon the first count.

In regard to the evidence adduced upon the trial, it is observable that, while the fourth count charged the defendant with having in his possession, with the felonious intent to utter a bank note of the Bank of the State of North Carolina, numbered “ 417,” and, while a note of that description was presented in evidence to the jury, there was no proof adduced that the note was found in the possession of the defendant, and yet the jury found a verdict of guilty on that count.

An objection, taken to the verdict and judgment, is urged, that the court permitted improper evidence to go to the jury; and in looking through the record, we find that/the court permitted evidence to go to the jury, of a supposed attempt by the defendant, three years previously to the trial and the finding of the indictment, to utter some forged bank-notes of the Northern Bank of Kentucky. This was manifestly illegal evidence, besides having a strong tendency to prejudice the minds of the jury against the defendant.

Upon the whole, we think the plaintiff in error entitled to a new trial, which must be confined to the second, third, and fourth counts, he having been acquitted upon the first count. Campbell v. The State, 9 Yerg. 333; 1 Chitty C. L. 637.

Judgment reversed, and new trial awarded.  