Opinion
11-13-1855
COCKE v. THE COMMONWEALTH.
Crump and August, for the prisoner, insisted: The Attorney General, for the commonwealth, insisted:
1. An indictment charges the forgery of an endorsement on a negotiable note, which is described as to the amount, date, to whom payable and when due; but the indictment does not state who is the maker of the note or where it is payable. It is a good indictment.
2. Upon a trial for the forgery of an endorsement on a note, the commonwealth having proved that the note went into the prisoner's possession, and notice to the prisoner to produce it, may prove the note and the forgery in its absence; and the note having been deposited in bank for collection, the original entries in the book of the note clerk of the bank, proved by the clerk to have been made by him from the note, are competent evidence to prove that the note and endorsement thereon was as described in the indictment.
3. The indictment charges in one count the forgery of a note, and in another count the forgery of an endorsement upon the note. The jury find the prisoner not guilty on the first count; and then say, " On the second count, viz: that of uttering a negotiable note knowing it to be forged, we find the prisoner guilty, and affix the term of his imprisonment for the term of two years." The verdict upon the second count is too uncertain to authorize any judgment upon it; and a venire facias de novo on that count should be awarded.
At the April term 1854 of the Circuit court of the city of Richmond, Edwin Cocke was indicted for forgery. The first count was for the forgery of an endorsement of the name of J. V. Crawford upon a paper purporting to be a negotiable note for the sum of ninety-five dollars and six cents, bearing date the 16th day of April 1852, payable to Crawford, or order, four months after date. The second count was for uttering as true the forged endorsement upon a note described as in the first count.
When the prisoner was arraigned he moved the court to quash the indictment against him, and each count thereof; but the court overruled the motion; and the prisoner then pleaded " not guilty."
On the trial which commenced on the 30th of April 1854, the commonwealth called a witness, Robert Hill, and asked him if he knew any thing of the forgery charged against the prisoner of a certain note for ninety-five dollars and six cents, dated April 16th, 1852, payable to J. V. Crawford, or order, four months after the date of said note. Whereupon the prisoner by his counsel called for the production of the note, and objected to any evidence of its contents being given. But the attorney for the commonwealth produced a notice to the prisoner, dated the 12th of April, requiring him to produce before the court a note described as in the indictment, and for an endorsement of the name of Crawford, on which note he had been indicted for forgery; and stating that if the note was not produced he would offer secondary evidence of its contents: And the attorney stated that he proposed to prove by the witness that the note had gone into the possession of the prisoner. To this notice the prisoner objected as insufficient, it having been served on Saturday at 5 P. M. when the court commenced its session on the next Tuesday; and also as informal as not describing the paper described in the indictment. But the court overruled the objection to the notice, and admitted the secondary evidence of the contents of the note: And the prisoner excepted.
Hill deposed that the prisoner gave to him a note similar to the one described in the indictment, the date of which he could not recollect, for the sum of ninety-five dollars and six cents, purporting to be drawn by Edwin Cocke, and endorsed by J. V. Crawford; but that he could not say whether or not it was payable to order. That he sold it as a negotiable note, but could not say at what bank it was payable. That he sold the note to H. J. Christian, and paid the proceeds to the prisoner. That afterwards there was a rumor that the note was forged, and he had a conversation with the prisoner, in which the prisoner said it was genuine, and requested him to take the note back from Christian, and that he would convince Crawford it was genuine. That he paid Christian for the note, who gave witness his order on the bank for it; that under this order it was withdrawn from the bank; and he afterwards purchased a piece of property from the prisoner and gave the note as money. The note was in the Farmers Bank.
The commonwealth then introduced Charles B. Williams as a witness; who deposed that he was the note clerk in the Farmers Bank. That he recollected generally that he saw a note purporting to be drawn by Edwin Cocke, and endorsed by J. V. Crawford, but what was the amount of the note, or its date, or where it was payable, he could not say. That from his general knowledge of Crawford's signature, derived from seeing his checks and notes, he suspected that the note which he saw was a forgery. And that he was unable from his own knowledge to give any other testimony in respect to said note; but that he had in court the book kept by him which contained a description of the note, which description was taken by him from the said note about the time it was deposited, and registered in said book as the original record of the particulars and identity of said note: and that the particulars of description set out in this book were sustained by another book, which was also an original record kept by the witness, and that the entries therein relating to said note were taken from the note itself, and made by him. But the entries in these books do not state in which of the banks at Richmond the note was payable.
The commonwealth then offered in evidence the books spoken of by the witness in connection with his evidence, so far as they related to said note. To the admission of these books the prisoner by his counsel objected; but the court overruled the objection and admitted the evidence: Whereupon the prisoner again excepted.
The jury having retired after the argument of the cause was concluded, came into court and rendered a verdict as follows:
We the jury in this case beg leave to state that on the first count of the indictment it is our opinion forgery is not clearly proven, and we therefore find the prisoner not guilty on this charge.
On the second, viz: that of uttering a negotiable note, knowing it to be forged, we find the prisoner guilty, and affix his sentence to imprisonment in the penitentiary for the term of two years, the shortest allowed under the law.
But in consideration of the mitigating circumstances of the case, we each individually do earnestly recommend the said Edwin Cocke to the clemency of his excellency Governor Johnson.
After the reading of the verdict, the clerk of the court asked if he should put the verdict in proper form; and the counsel for the prisoner thereupon objected to any alteration of it, and insisted that it should be entered literally as the jury had rendered it. But the court permitted the clerk to put the verdict in the following form:
" We the jury find the prisoner not guilty upon the first count of this indictment; but we find him guilty upon the second count of the same, and ascertain the term of his imprisonment in the penitentiary at two years."
And directed the clerk to read it to the jury, to ascertain whether they would assent to it. To which opinion and action of the court the prisoner excepted.
The amended verdict only appears in the bill of exceptions; and it does not appear whether or not the jury assented to it. From the fact that their own verdict stands on the record as their verdict, it is to be presumed they did not assent to that prepared by the clerk.
The prisoner moved the court in arrest of judgment and for a new trial, but his motions were overruled; and sentence passed upon him in accordance with the verdict. From this judgment the prisoner obtained a writ of error from this court.
Crump and August, for the prisoner, insisted:
1st. That the indictment should have been quashed, because it does not state who made the note. That though under the English statute no fac simile of the paper is necessary, and it is sufficient to describe it as in larceny; still the indictment must so describe the paper that the judgment upon it shall be a protection to the prisoner against another prosecution for the same forgery. That whatever might be the case in England, certainly in Virginia the offense must be so accurately and fully stated, as that it will show for what he is prosecuted; and thus be evidence of what is the charge for which the prisoner has been tried.
2d. That the notice to the prisoner to produce the note, was not sufficient, and was not sufficiently explicit. Moreover that according to the bill of rights of Virginia the prisoner could not be required to produce a paper; and not having this right, the secondary evidence of the note was inadmissible.
3d. That the books of the bank were not by themselves admissible in evidence. Courtney's Case, 6 Rand. 666. And though it is said they may be given in evidence in connection with the evidence of the teller; that is where the teller is able to testify as to the facts. But where the witness knows nothing, as was the case with the witness in this case, the mere introduction of him as a witness cannot render the books admissible evidence.
4th. That the verdict was too uncertain to authorize a judgment upon it; or it should have been a judgment of acquittal. They referred to Starkie Crim. Pl. p. 383 to 395; Anonymous, 3 Salk. R. 373; 6 Comy. Dig. title Pleader, Verdict, § 20; 8 Bac. Abr. Verdict, C, p. 98; The King v. Woodfall, 5 Burr. R. 2661; Sharff v. The Commonwealth, 2 Binn. R. 514; Commonwealth v. Call, 21 Pick. R. 509; Dyer v. The Commonwealth, 23 Id. 402; 1 Archb. Cr. Pr. & Pl. Verdict, 176, note 4; Percavil's Case, 4 Leigh 686; Hatton's Case, 3 Gratt. 623; Marshall's Case, 5 Id. 663; Perkins' Case, 7 Id. 651; Powell's Case, 11 Id. 822.
The Attorney General, for the commonwealth, insisted:
1st. That the statute now dispensed with the necessity of setting out the paper forged; and allows a description which would be good in larceny. And in larceny as the paper is not in possession of the commonwealth it cannot be described minutely. He referred to 2 Russ. on Crimes 108, 109, 110, 372 to 385; Kearne's Case, 1 Va. Cas. 109; Pomeroy's Case, 2 Id. 342.
2d. That the notice was unnecessary; but when it was proved that the paper was in possession of the prisoner the proof of the paper was admissible. Indeed it was admissible without that proof; though if the paper was in possession of the commonwealth, it would be suspicious if it was not produced. Kirk's Case, 9 Leigh 627; Moore's Case, 2 Leigh 701.
3d. As to the books of the bank as evidence, he referred to 1 Starkie's Evi. 128, 129.
4th. That the verdict on the second count was guilty. That the videlicet referring to the count is repugnant not only to the count but to the verdict. The jury find expressly that on the second count the prisoner is guilty; and they have only added a matter under a videlicet, which is surplusage, and may therefore be disregarded. He referred to 1 Wms. Saund. 169; 2 Id. 290, note 1; Pomeroy's Case, 2 Va. Cas. 342; Boatright v. Meggs, 4 Munf. 145; Roane v. Drummond, 6 Rand. 182.
ALLEN, P. delivered the judgment of the court:
It seems to the court here, that the verdict of the jury upon the second count in the indictment is too uncertain to authorize any judgment upon the said verdict and finding on the second count of the said indictment, and that the judgment of the Circuit court on the verdict on said second count is erroneous. It further seems to the court, that there is no other error in said judgment. It is therefore considered that so much of said judgment as acquits and discharges the plaintiff in error from the felony charged in the first count of said indictment be affirmed, and that the residue of the said judgment be reversed and annulled; and it is ordered that so much of said verdict as relates to the said second count be set aside, and that this cause be remanded to the said Circuit court with directions to award a venire facias de novo upon the said second count of said indictment, and for further proceedings, & c.