#### Page v. Commonwealth.

December, 1839.

Forgery — Examination—Indictment *—Case at Bar. — A prisoner is committed for examination, is examined. and remanded by tbe examining- court for trial, for “feloniously using and employing as true, for bis own benefit, a certain counterfeit note, well knowing tbe same to be counterfeit:” Held, an indictment for forging tbe note is not warranted by tbe examination, and must be quashed.

Same — Indictment—Conviction on One Count — Effect. †—An indictment (described in the record of the finding, and in the entry of tbe arraignment, as an indictment for forgery) contains, 1. a count for forging and counterfeiting a note, and 2. a count for feloniously using and employing as true a counterfeit note; verdict finds tbe prisoner guilty of forgery, as alleged in tbe indictment: Held, an acquittal must be entered on tbe second count.

In the circuit superiour court of law arid chancery for the county of Henrico and city of Richmond, at the term held in October 1839 for the trial of criminal causes, the grand jury presented “ an indictment against William H. Page for forgery, a true bill.” The indictment thus described as an indictment for forgery contained*six counts. The first charged that William H. Page did falsely make, forge and counterfeit, and cause and procure to be falsely made, forged and counterfeited, and willingly act and assist in falsely making, forging and counterfeiting, a certain promissory note, with intention to injure and defraud one Henry Miller. The second count charged that the said W. H. Page did knowingly utter and publish as true, and attempt to use and employ as true, for his own benefit, a certain other false, forged and counterfeited promissory note, with intention to injure and defraud one Henry Miller. The third count charged that the said *W.*H. Page did knowingly use and employ as true, for his own benefit, a certain other false, forged and counterfeited promissory note, with intention to injure and defraud one Henry Miller. The fourth count charged that the said W. H. Page did falsely make, forge and counterfeit, and cause and procure to be falsely made, forged *240and counterfeited, and willingly act and assist in falsely making, forging and counterfeiting, a certain other promissory note, with intention to injure and defraud one George K. Crutchfield. The fifth count charged that the said W. H. Page did knowingly utter and publish as true, and attempt to use and employ as true, for his own benefit, a certain other false, forged and counterfeited promissory note, with intent to injure and defraud one George K. Crutchfield. The sixth count charged that the said W. H. Page did knowingly utter and publish as true, for his own benefit, a certain other false, forged and counterfeited note, with intention to injure and defraud one Henry Miller. The instrument alleged to be counterfeit was set out in each count, in the following terms : “August 31st 1839, $55. I promise to pay to Henry Miller for William H. Page, in three months from above date, for value received.” (Signed) “ George K. Kryhfield.”

The indictment was found on the 28th of October. The record of the proceedings next had in the cause, *which were on the 31st of October, states that “the said William H. Page, who stands indicted of forgery, was set to the bar in custody, and being arraigned of the said forgery, moved the court to quash the first, second, fourth, fifth and sixth counts of the indictment;” which motion being overruled, he tendered a bill of exceptions, which was received and made a part of the record. In this bill it is stated, that the motion to quash the several counts aforesaid was made for the reason and upon the ground that the prisoner had not been, according to law, examined by a court of examination for the facts and offences set out in the said counts, and remanded to the said circuit court for trial for the same ; and for other errors apparent on the face of the said counts ; in support of which motion the prisoner offered to the court a copy of the record of his examination, under which he had been remanded to the said circuit court for trial: but the circuit court overruled the said motion and refused to quash all or any one of the said counts, being of opinion that it sufficiently appeared, from the record aforesaid, that the prisoner had been, according to law, examined by a court of examination, and remanded to the said circuit court for trial, for the facts and offences of which he stood indicted in the said several counts, and that there were no errors in the said counts for which they or any of them ought to be quashed. The record of the examining court (consisting of the warrant for' summoning the justices, the proceedings and judgment of the court, and the depositions of the witnesses for the commonwealth) was set out in hsc verba in the bill of exceptions. The warrant was under the hand and seal of P. Wicker, recorder of the city of Richmond; reciting that William H. Page had been committed to the jail of said city for a felony bv him committed in said city on the 31st of August 1839,” in then and there feloniously using and employing as true, for his own benefit, a certain false, forged *and counterfeit note and writing,” (set out in precisely the same terms as in the indictment) “with intention to injure and defraud one Henry Miller in said note and writing mentioned, he the said William H. Page then and there well knowing the said note and writing to be false, forged and counterfeited ;” — and, therefore, requiring the serjeant to summon at least eight of the justices of said city to meet at the courthouse thereof, on &c. to hold a court for the examination of the fact with which the said William H. Page stood charged. In the proceedings of the examining court, the offence was described, verbatim, as in the warrant for summoning the court; and then it was stated that “the court, having heard the evidence, are of opinion that the said William H. Page ought to be tried for the said offence before the circuit superiour court of la w and chancery for the county of Henrico and city of Richmond.”

The circuit court having overruled the motion to quash the said several counts, the prisoner thereupon pleaded not guilty to the indictment. And in the entry made on the following day, it is stated that “ the said William H. Page, who stands indicted of forgery, was again set to the bar in custody, and thereupon came a jury &c. who being elected &c. and having heard the evidence, upon their oath do say that the said William H. Page is guilty of the forgery aforesaid, in manner and form as in the indictment against him is alleged, and they do ascertain the term of his imprisonment in the public jail and penitentiary house to be two years.” The circuit court rendered judgment against the prisoner according to the verdict.

On the application of the prisoner, the general court awarded a writ of error to the judgment.

R. G. Scott and R. T. Daniel for the plaintiff in error,

and the attorney general for the commonwealth, submitted the case without

argument.

*

Forgery — Examination—Indictment.—See principal case cited in Mowbray’s Case, 11 Leigh 649; Scott v. Com., 14 Gratt. 690.

Same — Uttering Forged Instrument — Distinct Of-fences. — To tbe point that tbe forging of an instrument and tbe uttering of such forged instrument are distinct and substantive offences, tbe principal case is citedJim Mowbray’s Case, 11 Leigh 645; Dowdy v. Com., 9 Gratt. 732.

In Scott v. Com., 14 Gratt. 690, Daniel, J., after setting forth tbe decisions in the principal case, and Com. v. Mowbray, 11 Leigh 643, said: “To my mind, tbe features wbicb mark tbe felonious possession of forged coin as an offence different from tbat of the forgery of tbe same, are as distinct as those wbicb have been thus declared to distingnisb forgery from uttering and publishing.”

Criminal Law — Trial for Felony — Examination by Examining Court. — On this sub: ect, tbe principal case is cited in Buskirk v. Judge, 7 W. Va. 103; *foot-note*to Com. v. McCaul, 1 Va. Cas. 271.

Indictment — Defective Count — Effect.—On this subject, *see foot-note*to Kirk v. Com., 9 Leigh 627, where tbe question is discussed at some length. Tbe principal case was distinguished from Kirk’s Case, 9 Leigh 627 in Clere v. Com., 3 Gratt. 618.

†

lndictment — Conviction on One Count — Effect.—It is well-settled law in this state, tbat where there are several counts in an indictment and tbe jury find tbe accused guilty upon one of tbe counts, saying nothing as to tbe others, tbe verdict operates as an acquittal upon the counts of wbicb tbe verdict takes no notice, and tbe court should enter a judgment accordingly. Stewart v. Com., 28 Gratt. 939, citing tbe principal case, Litbgow v. Com., 2 Va. Cas. 297, Canada’s Case, 22 Gratt. 899, and Page’s Case, 26 Gratt. 943. To tbe same effect, see tbe principal case cited in Livingston v. Com,, 14 Gratt. 606; Page’s Case, 26 Gratt. 946; Richards v. Com., 81 Va. 116; Briggs v. Com., 82 Va. 558. See also, *foot-note*to Kirk v. Com., 9 Leigh 627; monographic *note*on “Indictments, In-formations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

*The judgment of the general court was as follows : “It seems to the court here that the judgment of the said circuit superiour court is erroneous in this, that it does not acquit the said prisoner of the charges contained in the second, third, fifth and sixth counts of the indictment, as to which the verdict says nothing ; and also in this, that the said circuit superiour court refused to quash the first and fourth counts of the said indictment, charging an offence (to wit, the offence of forgery) as to which the said prisoner had not undergone any examination by an examining court as the law directs : Therefore it is considered by the court that the judgment aforesaid be reversed and annulled; and this court proceeding to enter such judgment as the said circuit superiour court ought to have rendered, it is further considered that the said William H. Page be acquitted of the charges contained in the said second, third, fifth and sixth counts of the indictment, and go thereof without day ; that the said first and fourth counts be .quashed ; and that the said William H. Page be discharged out of custody.”