#### *Kirk v. Commonwealth.

December, 1838.

Indictment — Defective Counts* — Effect.—Tlie defect of *221some of the counts in an indictment does not affect the validity of the rest, and if any count is good. Judgment may he given against the accused.

Criminal Law — Passing Counterfeit Coin — Evidencet— Production of Coin — When Excused. — In a prosecution for passing a counterfeit coin to a person who resides in another state, if a subpoena for such person as a witness has been issued and returned not found, the fact of the passing, and the counterfeit character of the coin, may be proved without producing the coin at the trial.

Same — Same—Same†—Necessity of Producing Coin.— It seems, that in a prosecution for passing a counterfeit coin, the prosecutor is at liberty to prove the fact of the passing, and the counterfeit character of the coin, without either producing the coin, or accounting for its nonproduction.

Indictment — Verdict of Guilty on Some Counts — Effect as to Others.‡ — Where a verdict finds a prisoner guilty upon some of the counts in an indictment, saying nothing- of others, judgment of acquittal should be entered upon those counts of which the verdict takes no notice.

Writ of error to a judgment of the circuit superiour court of lav? and chancery for Cabell county, rendered against the plaintiff in error at April term 1838, upon an indictment for counterfeiting and passing base coin.

The indictment contained three counts. The first stated, “that James Kirk, on the 10th of March 1838, at the county of Cabell, feloniously did pass to one Aly Williams a *222certain counterfeit, forged and base coin, of the likeness and similitude of the mexican coin and monej' called a dollar, current within the commonwealth of Virginia, as and for a dollar, with intention to injure and defraud the said Aly Williams, he the said James Kirk, at the time he so as aforesaid passed the said base coin, well knowing the same to be false, forged and counterfeited, contrary to the form of the statute &c.” — The second count charged a passing and offering to pass to Aly Williams, with intent to injure and defraud the persons inhabiting the commonwealth of Virginia. — The third count charged the said Kirk with forging and counterfeiting two base coins of the likeness and similitude *of the mexican dollar, with intent to injure and defraud the persons inhabiting the commonwealth of Virginia.

The prisoner moved to quash each count in the indictment; which motion was overruled. He then pleaded not guilty, and the jury impanelled for his trial rendered a verdict in these words : “We the jury find the prisoner, James Kirk, guilty of the felony-charged in the two first counts in the indictment, which passing and offering to pass was committed on the first day of March 1838 ; and we do ascertain the period of his confinement in the public jail and penitentiary house to be ten years, if from the law that is the least period prescribed; but if five years be the minimum, then we ascertain the period of his confinement in the public jail and penitentiary house to be five years.” The verdict took no notice of the third count.

On the trial the prisoner filed two bills of exceptions. The first bill set forth, that at the trial the attorney for the commonwealth offered to give evidence and proof that the prisoner, at his residence in Cabell county, had passed to a certain Aly Williams a counterfeit dollar of the likeness and similitude of a mexican dollar, current in this commonwealth, knowing the same to be forged and counterfeited; but without producing the coin so alleged to have been passed, and for passing which the prisoner was then on trial. That it had also appeared in evidence that the said A.ly Williams resided in Kentucky at the time of the trial, and that a subpoena had been issued for him, returnable to that term of the court, which subpoena had been returned not found. Whereupon the prisoner objected to the admissibility of any evidence going to prove the passing of such counterfeit dollar as aforesaid, or that the same was forged and counterfeit, unless the attorney for the commonwealth first produced in court the same coin so alleged to be forged and counterfeit, and to ' have been ^passed as aforesaid. This objection was overruled, and the attorney for the commonwealth permitted to give evidence of the passing aforesaid, and that the dollar so passed was forged and counterfeit, and passed by the prisoner with full knowledge thereof ; without the production of the said forged and counterfeit dollar, and without any other preliminary proof than as aforesaid. To which opinion of the court the prisoner excepted.

The second bill of exceptions was taken to an opinion of the court refusing a new trial, which was moved for by the prisoner, on the ground that the evidence did not warrant the verdict. This bill set out all the facts proved in the cause. It is unnecessary to state them, since, by the unanimous opinion of the general court, they fully sustained the conviction.

The circuit court rendered judgment that Kirk be imprisoned in the penitentiary for ten years, “the period by the jurors in their verdict ascertained.”

P. R. Grattan for the plaintiff in error,

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

*

Indictment — Defective Counts — Effect.—The common-law rule of practice in criminal cases, that one good count in an indictment is sufficient to sustain a general verdict of guilty, however defective the other counts may be, is applicable to offences punishable by confinement in the penitentiary. As so holding; the principal case is cited in Shifflet v. Com., 14 Gratt. 672.

But in Mowbray’s Case, 11 Leigh 643, contrary to 'the principal case, it was held that this rule of practice is not applicable to cá^es of penitentiary crimes *221in Virginia, where the jury is to ascertain the term of imprisonment, since the evidence on the had counts may aggravate the punishment imposed by the verdict. The court, in this case, speaking through Gholson, J„ said that, while it did not question the soundness of the broad general rule that one *good*count in an indictment is sufficient to sustain a *general*verdict of guilty, however defective the others may be, it did not think It applicable to cases of general verdicts under our law, which not only declare the *guilt*but ascertain the *punishment*of the accused ; or, in other words, that, while the rule holds good where the verdict Is limited to the simple Issue of guilty or not guilty, it does not apply to cases in which the jury is required not only to pass on the guilt of the accused, but also to ascertain the amount of punishment; and where, from the finding, It cannot be known in what manner the jury intended to apportion the punishment. Three of the judges, Fry, Lee, and Nicholas, dissented from the opinion of the majority of the court. To the dissenting opinion of Fry, J., is appended a note in which he says : “ When this case was decided. I had not seen *Kirk's*Case, 9 *Leigh*627, nor was it adverted to in the discussion of the present case. It may be referred to. I think, as strongly supporting tile views I have taken in this opinion.”

In Clere v. Com., 3 Gratt. 615, 618, it was said that, while Page’s Case, 9 Leigh 687, can be distinguished from the principal case, the conflict between Mowbray’s Case, 11 Leigh 643, and the principal case, is necessary and irreconcilable. In this case (Clere v. Com.) the decision of the court in Mowbray’s Case, 11 Leigh 643. is approved as sound law, the court holding that the common-law rule, that a good count In the indictment, where there are other counts which are bad, will support a general verdict of guilty, is overruled in Virginia as to offences which are punishable by confinement in the penitentiary.

Thus stood the law and adjudications upon it when the Act of March 14, 1848, was passed, containing a provision (Sess. Acts, p. 152, sec. 43), which has since been substantially embodied in the Code 1849, p. 778, § 34 ; Va. Code 1887, § 4045, in these words : “ When there are several counts in an indictment or information, and a general verdict of guilty Is found, judgment shall be entered against the accused, if any count be good, though others be faulty. But on the trial, the court, on the motion of the accused, may Instruct the jury to disregard any count thatis faulty.” The effect of this provision is to make the common-law rule applicable to all criminal cases, whatever may be the mode of punishment, and however the measure of it may be ascertained. But the accused is effectually protected from injury, by the right which is given him to have the faulty counts excluded from the consideration of the jury. If he does not avail himself of that right he cannot complain of injury. Shifflet v. Com., 14 Gratt. 672 ; Rand v. Com., 9 Gratt. 749. fn this last case, the cases and statute on this subject are reviewed in the opinion of the court, but the court did not consider it necessary to express any opinion as to how far the question decided in the cases above mentioned was affected by the statute, further than to say that one of its manifest designs is to furnish a prisoner arraigned on an indictment containing various counts, some of which are faulty, a means of protecting himself against any prejudice or injury that might arise from such faulty counts, to wit, by a motion, on his trial, to the court, to instruct the jury to disregard them ; and that if the court should refuse, to the prejudice of the prisoner, to give such instruction, it would be an error which he would have a right to have redressed by an appeal. In this case it was held that a motion to exclude evidence which could only be applicable to a faulty count is in effect a motion to disregard that count. See also, *foot-note*to Clere v. Com., 3 Gratt. 615 ; monographic *note*on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

†

Passing Counterfeit Coin — Evidence.—See mono-graphic *note*on “ Forgery and Counterfeiting ” appended to Coleman v. Com., 25 Gratt. 865.

‡

Indictments —Verdict of Guilty on Some Counts — Effect as to Others. — In State v. Cross, 44 W. Va. 321, 29 S. 15. Rep. 529, it is said : “ It is clear, by authority imperatively binding this court, that where there are different counts in an indictment, and the verdict finds the party guilty on one or more, though silent as to the others, it operates as an acquittal on the others by inevitable implication, because all the counts were the subjects of decision before the jury, and, by selecting those counts on which the party is guilty, the jury necessarily found him not guilty on others. The court should render judgment of acquittal on the counts on which he is not found guilty, though the verdict is silent as to them, and. if the court omits such judgment, the law enters it. Lithgow’s Case, 2 Va. Cas. 297 ; Bennet’s Case. 2 Va. Cas. 235 ; *Kirk's Case,*9 *Leigh*627; Stuart’s Case, 28 Gratt. 950, 953. ” To the same effect, see the principal case cited in Livingston v. Com., 14 Gratt. 606 ; Page v. Com., 26 Gratt. 946 ; Richards v. Com., 81 Va. 116 ; Briggs v. Com., 82 Va. 558 ; *foot-note*to Com. v. Bennel, 2 Va. Gas. 235. See also, *foot-note*to Page v. Com., 9 Leigh 683 ; monographic *note*on “ Indictments, In-formations and Presentments ” appended to Boyle v. Com., 14 Gratt. 674.

ALEEN, J.,

delivered the opinion of the general court.- — The first question for the

consideration of this court grows out of the motion to quash each of the counts in the indictment. A majority of the court are of opinion, that it is not necessary to decide upon the sufficiency of each count. The first count is free from objection, and the verdict finds the prisoner guilty of the felony charged in the first and second counts, and ascertains the term of his imprisonment at the lowest period allowed by law. Every separate count is in the nature of a distinct indictment ; and though in civil actions, before the law was changed by our statute, where the declaration contained several counts, some of which *were good and others defective, and the jury gave entire damages, judgment could not be given, this rule did not apply to criminal cases. The defect of some of the counts does not affect the validity of the rest, and if any count is good, judgment may be given. 1 Chit. Crirn. Law, 249 ; Id. 640. It is not perceived that the prisoner is' subjected to any inconvenience, or liable to be taken by surprise, by the operation of this rule. He is apprized by the indictment of the charges against him, and should be prepared to meet them ; and if upon the trial he supposes that the evidence does not justify a conviction upon any of the counts, he can save the point by spreading the facts proved upon the record, and moving in arrest of judgment of for a new trial.

On his trial the prisoner objected to the admission of any testimony to prove the passing of the coin, or that the same was forged or counterfeit, without the production of the piece of money alleged to be forged and passed ; and that if, under any circumstances, such evidence would be admissible, a proper ground for its introduction had not been laid here. The absence of the forged pieces may increase the difficulty of proving the prisoner’s guilt; but there seems to be no good reason for rejecting evidence tending to satisf3r the jury of the fact of the felonious passing, and that the pieces passed were counterfeit. If the rule were as contended for, then secondary evidence could never be received in a prosecution for forgery; for the objection covers the whole ground, that the production of the forged piece was essential, and that all testimony to prove its counterfeit character and the felonious passing was inadmissible unless *223the coin was produced. The contrary has been repeatedly established by the courts in this country and in England. Pendleton’s case, 4 Leigh 694 ; 2 Russell 674. In the case before us, the attorney for the commonwealth had proved the passing to Aly Williams; that Williams then resided in the state of ^Kentucky; and that a subpoena for him had been issued, and returned not found. Without deciding that the case of counterfeit coin falls within the rule that the best evidence is to be produced, or its loss or absence accounted for, and conceding, for the sake of argument, that it does, it would seem that a sufficient ground for the introduction of such testimony was laid here. The coin had been passed to a person living without the commonwealth; there was no mode of enforcing his attendance; and the commonwealth had done all that was in her power to do. The ground of the rule is a suspicion of fraud. Eor if it appear that there is better evidence of the fact, which is withheld, a presumption arises that the party has some sinister motive for not producing it. No such presumption can arise here. The coin in question was never in the custody of the officers of the commonwealth, or under their control. Nor would inquiry of Williams have aided them. His statements not under oath could not have been used, and unless he appeared and proved the identity of the coin, the inquiry would have been vain. Some of the court, however, are of opinion that the rule referred to does not apply to the case iu question. Where a forged instrument is set out in the indictment, it may be more necessary to produce the instrument to compare it with the instrument described ; but the fact of its counterfeit character is still to be established by proof, and though an inspection of the instrument may tend to facilitate the proof, the fact may also be established by the testimony of witnesses who have examined it, or by the confessions of the accused. In Moore’s case, 2 Leigh 705, the defendant was indicted for the larceny of bank notes. It was objected that the notes should have been produced, to ascertain their identity, and whether they were genuine and of value. The court decided that it was unnecessary to produce them ; that it was the province of the jury to judge of their genuineness by the *evidence. If not produced, that circumstance weakens the proof, but does not destroy the competency of the other evidence to prove them to be of value. It is conceived by some of the court that the same principle applies to the case in question. The coin alleged to be forged is not set out in the indictment by its tenor or purport, as iu the case of forged instruments. Whether the piece, if produced, was the one passed and is counterfeit, would depend at last upon the evidence ; and the question is one which relates to the measure and quantity of evidence, of which the jury are the judges, and not to the quality of the evidence when compared with some other evidence of a superiour degree.

It is unnecessary to set out the facts detailed in the second bill of exceptions; the court being- unanimously of opinion, that the finding of the jury was well warranted by the facts and circumstances proved on the trial.

There is error, however, in the judgment of the court sentencing the prisoner to ten years confinement in the penitentiary. The conviction took place after the passage of the act of March 17, 1838. This law took effect from its passage, and provides that if any persons shall be convicted of any of the offences mentioned in the first section of the act to punjsh forgeries, 1 Rev. Code, ch. 154, p. 578, it shall be lawful to sentence such person to confinement in the penitentiary for a term not less than five years. Erom the verdict it appears that the offence in this case was committed before the passage of the act. But the law is general in its terms, and applies to all cases of convictions after its passage. The trial in this case occurred shortly after the law was passed, and though a rumor of its passage had reached the county where the trial took place, it is manifest from the finding, that the precise terms of the law were not known, or whether it was general, or was confined to cases which might occur thereafter. The *verdict was intended to give the prisoner the benefit of the law if it applied to his case; and the court acting on the law then before it, sentenced him to ten years confinement. This error can be corrected by this court reversing the judgment and entering such judgment as the circuit court should have entered.

The verdict takes no notice of the third count of the indictment. In such case it has been decided by this court (Commonwealth v. Bennet, 2 Va. Cas. 235,) that a judgment of acquittal should be entered on the count as to which the jury have not found. This can be done in the judgment to be entered here.

Judgment reversed; and this court proceeding &c. it is considered that the plaintiff in error be imprisoned in the public jail and penitentiary house for the term of five years, the lowest period by the jurors iu their verdict ascertained, and that he be kept in a solitary cell on low and coarse diet, for the space of one twelfth part of the said term ; and that he be acquitted of the charg-e contained in the third count of the indictment.