*DECEMBER TERM 1834.

JUDGES PRESENT.

*Daniel,*

*Taylor,*

*Thompson,*

*Brown,*

*Semple,*

*Baker,*

*Leigh.*

#### Hendrick v. The Commonwealth.

December, 1834.

Criminal Law — Jurors—Voir Dire — Mistaken Statement —Correction,—Aperson called to serve as a juror in a criminal case, being examined on his voir dire, first says he is not a freeholder, but soon after-wards, before the panel is completed, returns into court, and says he was mistaken, that he had been reminded of his mistake by a friend, and that he is a freeholder; the court holds him a good and lawful juror, and then the prisoner challenges him peremptorily; Held, the court was right in permitting such correction of the first mistaken statement, and in holding this a good and lawful iuror.

*Same — Same—Competency— Opinion Formed from Evidence on Former Investigation.* — Persons called to serve as jurors in a criminal case, examined on their voir dire, say they have heard part,of the evidence on a former investigation, and formed some opinion thereon, yet the opinion so formed would nowise incline their minds, as jurors, for or against the prisoner, but they could pass upon his case, on the whole evidence, as impartially as if they had never heard of it; Held, such persons are good and impartial jurors.

Same — Same—Peremptory Challenge — When It Can Be Made. — A person called to serve as a juror in a criminal case, is elected by the prisoner, but before he is sworn, the prisoner retracts his election, and asks that he may be permitted to challenge him peremptorily; the court refuses to permit such peremptory challenge, and the juror is sworn and serves on the jury: Held, this was error, the prisoner having an absolute right to challenge any juror peremptorily, at any time before he is sworn. .

Same — Uttering Counterfeit Notes on United States Bank — Charter of Bank Unconstitutional — Effect.— Upon an indictment for passing a counterfeit check or 07 der of a president of a branch of the bank of the U. States, on the cashier of the bank, payable to T. R. or order, and indorsed by T. R. to bearer: Held, that, whether the charter of the bank of U. S. be constitutional or not, and whether the charter authorizes the issue of such checks or orders or not, the counterfeiting or passing counterfeits of such checks or orders, is felony by the statute 1 Rev. Code, ch. 154, § 4.

Same — Same — Jurisdiction of State Courts.† — And though the offender be indictable in the courts of the U. S. for the offence against the laws of U. S., he is also indictable in the courts of Virginia for the offence against the laws of the state.

Same — Uttering Counterfeit Bank Note — Proof, of Scienter. — On the trial of an indictment for passing a counterfeit bank note or check, after evidence that the prisoner passed the note, and that it was counterfeit, evidence that the prisoner had in his possession and attempted to pass other counterfeit notes of the same kind to other persons, the day after he passed those in the indictment mentioned, is admissible to prove the scienter.

Error to a judgment of the circuit superiour court of Kanawha. At October term 1834, Hendrick and one Hays were indicted upon the statute against thefts and forgeries, 1 Rev. Code, ch. 154. There were *265three counts in the indictment, on which he was convicted.

The first charged, that Hendrick and Hays feloniously uttered and published as true, to W. Rand, and attempted to use and employ as true, for their own benefit, a certain false, forged and counterfeited check, purporting to be a check on the cashier of the bank of the U. States, of the following tenor—

*“10. I. 1799. I. 1799. 10.

Cashier of the Bank of the United States: pay to T. B. Robertson or order ten dollars. Office of discount and deposit in Norfolk, 6 May 1831.

Jos. B. Roberts, Cashr.

Geo. Newton, Prest.” (Indorsed) “Pay to bearer, T. B. Robertson.”

with intent to injure and defraud one P. Brooks, they, Hendrick and Hays, and each of them, at the time of so uttering, publishing and passing the counterfeit check, well knowing the same to be false, forged and counterfeited; contrary to the statute In such case made &c.

The second count was like the first, in all respects, except that it described the counterfeit paper, not as a check, but as a bill of exchange, and that it charged the uttering, publishing and passing thereof, to have been done with intent to injure and defraud W. Rand.

The third count charged, that Hendrick and Hays feloniously uttered and published as true, to W. Rand, and attempted to use and employ as true, for their own benefit, a certain false, forged and counterfeited ■order, of the following tenor:

“5. E. 700. E. 700. 5. Cashr. of the Bank of the United States: Pay to W. T. Smith or order five dollars. Office of discount and deposit in Bexington, 10th August 1830.

J. Harper, Cashr. J. Tilford, Prest.” with intent to injure and defraud W. Rand; they, Hendrick and Hays, and each of them, well knowing &c. contrary to the statute &c. This order was not alleged to have been indorsed by W. T. Smith.

Hendrick, being arraigned, pleaded not guilty. Much difficulty occurred in empanelling the jury, in the course of which the prisoner filed exceptions to several opin - ions of the court. 1. W. Bandcraft, being called as a juror, and examined on oath touching his freehold qualification, first answered, that he was not a freeholder, but shortly after, returned into court, and said, that he had been mistaken in that answer, and had been reminded of the mistake by a *friend; that he had a deed for land, on which he had paid the taxes for some time, but he was not otherwise in possession thereof, by himself or by any tenant, though there was no adversary possession, the land being unoccupied. The court held that Bandcraft was a freeholder; and he was then peremptorily challenged by the prisoner. 2. J. Hall, being called as a juror, and examined on voir dire, said, he had heard a part of the evidence on a former investigation, and had formed some opinion thereon, which yet remained on his mind, but the opinion so formed did not give his mind any leaning for or against the prisoner, and he was satisfied he could pass upon his case as impartially as if he had never heard of it. Being asked by the prisoner’s counsel, whether, if the evidence now should be the same with that he had before heard, his opinion would not be the same in relation thereto? he answered, he presumed it would, as far as his opinion would be founded on that evidence, but, as a juror, his opinion would be the result of the whole evidence in the cause. The court held that he was an impartial juror; upon which the prisoner challenged him peremptorily. 3. S. Hudson, being called as a juror, and examined on his voir dire, said, he had heard W. Rand’s testimony on Hays’s trial, and had formed some opinion on the facts testified by him, but had never expressed the opinion so formed; that the impressions made by Rand’s testimony still remained on his mind, but he felt no leaning for or against the prisoner, and could try him as impartially as if he had never heard of his cause. The court held, that he was an impartial juror; and the prisoner challenged him peremptorily.

4. D. Hudson, being called as a juror, the prisoner elected him; but as the juror was taking his seat, and after the sheriff had called another juror, the prisoner objected to Hudson; and one of his counsel stated, that the prisoner was acting under his advice in relation to his challenges, and in electing Hudson had mistaken his advice; and he insisted, that the prisoner had a right to retract his election of this juror, and to challenge him peremptorily. But the court refused to permit him now to make such peremptory challenge; and this juror *was sworn and served as one of the jurj-. To these opinions of the court, the prisoner filed exceptions.

At the trial, evidence having been given for the commonwealth, that the prisoner had passed the checks, drafts or orders, in the indictment mentioned, and that they were counterfeits, the attorney for the commonwealth, for the purpose of proving the prisoner’s knowledge that the papers were counterfeits, at the time he passed them, offered evidence to prove, that the prisoner and Hays, on the day after the passing of those counterfeits, had offered and attempted to pass to other persons, two other checks or drafts purporting to be drawn by a branch of the bank of the U. States on the bank at Philadelphia, and a note purporting to be a note of the bank of Virginia, all of which were also counterfeits. The prisoner’s counsel objected to this evidence as inadmissible: but the court held, that the passing of counterfeits of the like kind with those mentioned in the indictment, whether before or after passing the counterfeits in questions, if near or about the same time before or after, though they were distinct transactions, was proper evidence to shew the guilty knowledge of the prisoner in passing the counterfeits for which he was indicted; and therefore, admitted the evidence, for the purpose of proving the scienter. The prisoner’s counsel excepted.

The jury found the prisoner guilty, and ascertained the term of his imprisonment in the penitentiary, to be two years.

*266The prisoner, thereupon, made a motion in arrest of judgment, “because the matters and things alleged in the indictment, in manner and form as therein alleged, did not constitute any offence, indictable as a felony, under the laws of Virginia.” The court overruled the motion, and sentenced the prisoner to two years imprisonment in the penitentiary, according to the verdict.

The prisoner applied by petition to this court for a writ of error; which was allowed.

J. Hendrick and B. Smith for the prisoner.

Lyons for the commonwealth.

*

Criminal Law — Jurors—Competency—Preconceived Opinions. — In State v. Baker, 33 W. Va. 324, 10 S. E. Rep. 641, Brannon, J., in collecting the Virginia cases upon the incompetency of jurors in criminal cases on account of preconceived opinions, cites the principal case. These same cases are collected in the first part of the *foot-note*to Oom. v. Hailstock. 2 Gratt. 564.

See further on this subject, *foot-note*to Wormeley v. Com., 10 Gratt. 658; *foot-note*to Jackson v. Com., 23 Gratt. 919; *foot-note*to Shinn v. Com., 32 Gratt. 901; monographic *note*on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.

†

Criminal Law — Crimes Punishable by Federal Courts —Jurisdiction of State Courts. — A state court has jurisdiction to punish an act made an offence by the laws of the state, though the same act is made an offence by a law of the Congress of the United States. Thus, a state court has jurisdiction to punish the offence of attempting to pass a forged note purporting to be a note of one of the national banks of the United States. Jett v. Com., 18 Gratt. 933. In this case, *Hendrick v. Com., 5 Leigh*707, is cited with approval at pp. 939, 953, 957, 967.

See further, *foot-note*to Jett v. Com., 18 Gratt. 933; monographic *note*on “Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865; monographic *note*on “Indictments, Informations and Presentments” (sub-head Forgery and Counterfeiting) appended to Boyle v. Com., 14 Gratt. 674.

Forgery — Indictment—Allegation—“To the Prejudice of Another’s Right.” — The words, “to the prejudice of another’s rights,” in the Code, ch. 193, sec. 5, p. 733, in relation to forgeries, are descriptive not of the offence, but of the writings of which forgery may be committed; and it is not therefore necessary that they shall be inserted in the indictment in describing the offence charged. Powell v. Com., 11 Gratt. 822, 825, citing the principal case and Murry’s Case, 5 Leigh 720, as establishing the proposition.

' See further, *foot-note*to Powell v. Com., 11 Gratt. 822; monographic *note*on “Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865; monographic *note*on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

*DANIEL, J.

The arguments of the prisoner’s counsel against the judgment of the circuit court on the motion in arrest of judgment, are ingenious and plausible; but they all resolve themselves finally into this,- — that the act of congress incorporating the bank of the U. States, is unconstitutional and therefore void; or, if that be not so, yet that the charter does not authorize the officers of the bank to issue and put into circulation, such papers as either of those mentioned and described in the indictment; that the bank of the U. States is itself not bound to pay them, and so these papers do not necessarily import to be of any value, if genuine, and are, therefore, not protected by our laws against forgery.

The court is of opinion, that it might be admitted, that the charter of the bank of the U. States is unconstitutional, and that, if otherwise, the making and putting into circulation, checks, bills or orders, such as are described in the indictment, constitute an abuse or violation of the charter, — without involving the consequences for which the counsel contend. The statute of Virginia for punishing thefts and forgeries, 1 Rev. ch. 154, p. 578, was not enacted to protect the bank of the U. States; it was made to protect the citizens of this commonwealth against the thefts and forgeries therein mentioned, and to punish the offenders. It recognizes the existence of the bank of the U. States, de facto, whether it was created constitutionally or not. The provisions of the third section of the statute, may not apply to checks, drafts or orders of the bank of the U. States (other than those of its branches in this state), because the bank is not in this state. But the fourth section, among other things, makes it felony, in any free person, to forge or counterfeit any deed, bond, writing or note, any bill of exchange, draft or order, or any acceptance thereof, any assignment, transfer or indorsement, or any letter of credit, or other writing to the prejudice of another’s right, (other than the bank notes and bills, post notes, checks and orders on banks, their branches and offices, in the statute before mentioned,) with intent to injure or defraud any person *or persons, body politic or corporate; or, with like intent, to utter or publish as true, or attempt to use and employ as true, for his own benefit, or for the benefit of another, any such false, forged, counterfeited, altered or erased paper writing as aforesaid, knowing the same to be false, forged, counterfeited, altered or erased. The provisions of the statute, are as various and broad as the rights of property which may be prejudiced, by forging, or uttering as true any forged paper writing .whatever, knowingly, and with fraudulent intent, and therefore, they include such paper writings as those mentioned and described in this indictment.

The objection to the 4th count, that the order therein set forth was made payable to W. T. Smith or order, and was not indorsed by Smith, cannot avail to arrest the judgment; because the judgment is sufficiently warranted by the verdict finding the prisoner guilty upon the other two counts of the indictment.

It was argued by the prisoner’s counsel, that the judgment ought to have been arrested, on the ground, that the courts of Virginia ought not to punish, criminally, any forgery committed of the notes, bills, orders or checks, of or upon the bank of the U, States; because this is an offence punishable by the courts of the U. States; and if a state court, which cannot oust the courts of the D. Stales of their jurisdiction, should proceed, it might happen that a person might be punished twice for the same offence. The answer to this is, that the law of Virginia punishes the forgery, not because it is an offence against the U. States, but because it is an offence against this commonwealth, committed within its limits; and the punishment of it is designed for the protection of our own citizens.

Upon the whole, the court is of opinion, that the motion in arrest of judgment was properly overruled.

But there are several exceptions taken upon points ruled by the circuit superiour court, in the course of the proceedings, which it is necessary to examine, since if any one of those opinions was erroneous, the judgment must be reversed.

"This court concurs in the opinion of the court below, stated in the bill of exceptions filed at the trial, as to the admission of the testimony therein mentioned, to prove the guilty knowledge with which the prisoner passed the counterfeits, for passing which he was indicted. That such testimony is proper for the purpose for which it was received, though it relates to independent transactions with other persons, at or about the time of the commission of the offence charged, whether before or after, this court has no doubt: but how long before or after, — one minute or ten, one hour or twenty-four, a day, a week, or more or less, — must be determined by the circumstances of each case. In the present case, the transactions of which the proof was offered, were of the day after the offence charged was committed; at which time, that is, the day after the offence committed, the prisoner and Hays had in their possession, and offered to pass as true, other counterfeit bank paper of the like kind with that mentioned in the indictment which they had actually passed off the day before. This court is of opinion, that the proof of this circumstance was properly submitted to the jury, as tending to prove the-guilty knowledge with which the counterfeits were passed off the day before, for passing which the prisoner was on trial.

*267Then, as to the exceptions in relation to the jurors.

With respect to the juror Landcraft, either the prosecutor or the prisoner might have required the juror to be examined on his voir dire: it does not appear, at whose instance he was so examined. It was right to permit the juror to explain; and considering him a qualified freeholder, it was the duty of the court to subject him to the election or challenge of the prisoner. The court could not know but that the prisoner might elect to be tried by him; if not, he might challenge him for cause, or peremptorily. The latter was done. There is no error in this proceeding.

This court also concurs in the opinions of the court below, in regard to the two jurors, Hall and S. Hudson. We think those opinions of the court right in principle, and sustained by the authority of several adjudged cases in this court.

*But we think, that the court below erred in refusing to permit the prisoner to retract his election of the juror D. Hudson, and to challenge him peremptorily. Some circumstances are stated to shew the reason of this decision, which it is not necessary to advert to; for this court is unanimously of opinion, that the right of a prisoner to challenge any juror peremptorily, is absolute at any time before the juror is sworn, and that no circumstances can bring that right within the discretion or control of the court, so long as it is confined to the number of peremptory challenges allowed by law.

Por this error the judgment must be versed, the verdict set aside, and a venire de novo directed._