*JULY TERM 1835.

JUDGES PRESENT.

*Smith,*

*Saunders,*

*Parker,*

*Upshur,*

*Field,*

*May,*

*Scott,*

*Leigh,*

*Thompson,*

*Bstill,*

*Duncan,*

*Clopton,*

*Lomax.*

#### Murry v. The Commonwealth.

July, 1835.

Criminal Law — Uttering Counterfeit Bank Note — Indictment — Sufficiency.*—Upon an indictment of passing a counterfeit note of the bank of Louis*269ville, without alleging that the bank is a chartered bank, or that there is no such bank, and without alleging that the note was passed “to the prejudice of another’s rights,'’ or “for the prisoner’s own benefit, or for the benefit of another:” Hum), the offence so charged is a felony within the meaning of the statute 1 Rev. Code, ch. 154, § 4, and the indictment is good and sufficient.

Error to a judgment of the circuit sttperiour court of Cabell. At April term 1835, Murry was indicted upon the statute against thefts and forgeries, 1 Rev. Code, ch. 154. There were two counts in the indictment. The first charged, that the prisoner, at the county of Cabell, a certain false, forged and counterfeit note, purporting to be a note of the bank of Louisville for five dollars, feloniously did pass as a true bank note for five dollars, to one Couchman, of the following tenor:

*with intent to defraud the said Couch-man, and with intent also to defraud the corporation of the president, directors and company of the bank of Louisville; he Murry at the time of passing the said false, forged and counterfeit bank note, well knowing the same to be false, forged and counterfeited; contrary to the statute in such case made and provided. The second was like the first, only it charged the passing of a different counterfeit note of the same bank of Couchman, with intent to defraud Couchman. The prisoner pleaded not guilty. Verdict, guilty, and term of imprisonment in the penitentiary, two years. The prisoner made a motion in arrest of judgment, ‘ tl. because the indictment did not allege that the bank is chartered, or that there is no such bank in existence, according to the provisions of the first section of the statute; and 2. because the offence as charged is not embraced by the provisions of the fourth section, under which, it is stated, the prisoner is indicted.” The court overruled the motion, and sentenced the prisoner to imprisonment in the penitentiary for two years, according to the verdict, and that he should be kept in a solitary cell there, on low and coarse diet for one fourth part of that term.

Leigh, for the prisoner.

Attorney general, for the commonwealth.

*

Forgery — Indictment—Allegation—“ To the Prejudice of Another’s Rights.” — See, citing the principal case, *foot-note*to Hendrick v. Com., 5 Leigh 707; Powell v. Com., 11 Gratt. 822.

See generally, monographic *note*on “Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865; monographic *note*on “Indictments, In-formations and Presentments ” appended to Boyle v. Com., 14 Gratt. 674.

Excessive Judgment — Effect — If a judgment is *269In excess of that which the court rendering it had by the law the power to pronounce, such judgment is void for the excess only. *Ex parte*Mooney, 26 W. Va. 41, citing, among others, Brooks's Case, 4 Leigh 669; *Murry’s*Case, *5 Leigh 720,*724; Hall’s Case, 6 Leigh 615, 618.

Same — Solitary Confinement — Appellate Practice. — In Brooks’ Case, 4 Leigh 669, 670, the trial court sentenced a convict to be kept in a solitary cell, etc., in the penitentiary for one-sixth of the term of imprisonment fixed by the verdict, while the statute fixed the maximum period of solitary confinement at one-tweltth of the term. The general court, on appeal, reversed the judgment of the lower court for this cause; but proceeded to enter judgment that the prisoner should be kept in a solitary cell, etc., for one-twelfth part of his term, according to the statute

In the principal case, the lower court fixes the solitary confinement at one fourth part of the term of the imprisonment, though the statute fixed the maximum limit of solitary confinement at one twelfth of the term. The General Court reversed the judgment for this error, and entered the proper judgment according to the precedent established in Brooks’ Case, 4 Leigh 669.

Again, in Hall's Case, 6 Leigh 618, the prisoner was sentenced to solitary confinement for one tenth of his term of imprisonment, whereas, by statute, the maximum of solitary confinement was limited to one twelfth. The General Court held, on the authority of Brooks Case, 4 Leigh 671, and *Murry's Case,*5 *Leigh*724, that the j udgment must be corrected in this particular.

In State v. Mooney, 27 W. Va. 546, on an indictment for an injury done with intent to maim, etc., under statute, a verdict was rendered finding the defendant notguilty of maliciously doing the act charged, but of unlawfully doing said act. Judgment was entered on this verdict sentencing the prisoner to confinement in the penitentiary and also imposing a fine. On appeal, it was held that the court could not, under the statute, sentence the prisoner to confinement in the penitentiary and also impose a fine, and that, therefore, the judgment must be reversed. It was contended by the attorney general, —citing, as his authority, Brooks’ Case, 4 Leigh 669; *Murry's Case,*5 *Leigh 720;*Hall’s Case, 6 Leigh 615, and State v. Gould, 26 W. Va. 258; — that the court of appeals, ou reversing the j udgment, should enter such judgment as the lower court ought to have1 rendered. But the court of appeals held that they could not do this, but that they must remand the case to the lower court for a proper judgment to be rendered on the verdict of the jury. In referring to the cases cited by the attorney general, the court said that in none of these cases was the discretion of the court below in fixing the punishment on the verdict of the jury interfered with; but that, if they should do as requested by the attorney general in the case at bar, they would interfere with the discretion lodged in the lower court.

MAY, J.,

delivered the opinion of the court. The writ of error was asked on the same grounds on which the motion in arrest of judgment was founded; and it is now further contended, that the indictment cannot be sustained on the *4th section of the statute, because it does not charge the offence to have been committed “to the prejudice of another’s right;” and also because it is not alleged to have been done ‘ ‘for his own benefit or for the "benefit of another.”

Whether the bank was chartered, no where appears; but it must be presumed, that the prisoner was not prosecuted under the 1st section of the statute, because the minimum term of imprisonment therein, is ten years; the reasons in arrest of judgment state that the prosecution was founded on the.4th section; and the bank is no where *270alleged to have been chartered. We regard the indictment, therefore, as one on the 4th section, which prohibits the counterfeiting of various public certificates, warrants, and other writings, particularly enumerated therein ;■ and the uttering or publishing of such counterfeits as true. Among them, we find “any deed, bond, writing or note;” “any letter of credit, or other writing to the prejudice of another’s right.” In the latter part of the same section, it is provided, that if an3r person “shall, with the like intent, (to defraud &c.) utter or publish as true, or attempt, in any manner, to use or employ as true, for his own benefit or for the benefit of another, any false, forged, (counterfeit, altered or erased, paper or writing, as is aforesaid, knowing the same to be false &c.” he shall be guilty of felony; and there is an exception of ‘ ‘the bank notes, bills, post notes and checks,” mentioned in the three preceding sections. If the note in question was the note of an unchartered bank, it is not embraced by either of those first three sections; and it has been said, that the legislature did not intend to prohibit. the counterfeiting of the notes of such banks. At the revisal of 1819, the notes of every bank, chartered by the U. States, or either of the states, were, for the first time, placed on the same footing, as to this class of offences, with the notes of the banks of this state. Previously, there was no express provision for the offence of counterfeiting the notes of any bank of another state, whether chartered or not; but there was one in relation to notes generally, similar to that in the 4th section of the present statute. And this court decided in Henley’s case, 2 Virg. Ca. 149, ’‘that the passing of a counterfeit note, purporting to be for a bank in another state (without inquiring whether it was chartered or not), was felony, because the words of the statute then in force comprehended all notes. And we are all of opinion, that the words any note, in the present statute, in like manner, embrace the notes of unchartered banks. Although the legislature designed, by another statute, to suppress such banks in this state, we have no reason to believe that it intended to interfere with the policy of other states which may permit them. And, certainly, there is nothing in either statute, from which we can infer, that the legislature would tolerate the offence of forgery, for the mere purpose of endeavouring to suppress unchartered banks.

As to the objection, that the indictment does not charge the act to have been committed “to the prejudice of another’s right;” we are of opinion, that these words relate, not to the different writings particularly mentioned in the previous part of the section, the counterfeiting of most of which had, long before, been made felony; but only to the words immediately connected with them; ‘ ‘any other writing, to the prejudice of another’s right.” So too, in the last part of the section, the words “for his own benefit, or for the benefit of another,” are not properly connected with the offence of uttering and publishing as true, any of the forged writings and papers therein stated; but only with that of attempting to use or employ them for his own benefit, or for the benefit of another. These terms were probably intended to apply to the various warrants, certificates and writings of public officers, which a person might attempt so to use or employ.

On the whole, then, we are of opinion that the note of an unchartered bank is not embraced by the 1st section of the statute, but is clearly embraced by the words any note in the 4th section; that the words “to the prejudice of another’s right,” relate only to the forging of other writings not particularly named; and that the words ‘ ‘for his own benefit or for the benefit of another,” refer, not to the actual uttering and publishing as true, of counterfeit notes &c. *but to the mere attempt to use or employ them and the other writings mentioned.

So far, there is no error in the judgment; but the court below erred in sentencing the petitioner to solitary confinement for one fourth part of the term of his imprisonment. There have been divers statutory provisions on this subject; but there is now one which fixes the maximum period to one twelfth; while the old penitentiary law established the same proportion for the minimum. The judgment must be reversed for this error, and the proper judgment entered, according to the precedent of Brooks’s case, 4 Leigh 669.