Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1829-06-09

W Keep 10 MS own use the moneys he had obtain
ed by means OF the said drafts, and thereby de-
fraud the United States, did afterwards, 10 wit on
the day and year aforesaid atthe county aforesaid,
falsely and frauduienuy alter the said abstract by
erasing therefrom the words
" 7. Watkins draft
"dO do $500
opposite the said dates of September lst, 10th,
and I'D, prehxed Is the aforesaid three items and
charges in the said abstract. under the head of
arrearages prior TO 1927 herein before set out
with intent TO defraud the U. So
And there is a subsequent averment that the let
tiers, drafts, and requsition, and also the era
sure of the said abstract, were made and done
with intent TO defraud the United States, and as
false pretcnces 10 enable him. IT. w. )sstO obtain
and keep to his use and benefit the said seve-
raj sums OF money therein mentioned and that
by means of The sad several false prefences, The
SAID II. W. did, at the time and times aforesaid
dsfTdud the said United States IF the said several
Sums, amounting TO the sum of two thousand dol
lars, and dispose of the same TO his own use and
benefit, to the great damage of the United States
and against the peace and government tAereof."
The averment respecting the endorsements Of
Mr.. Poiiinger seems to be wholly immaterial to
the charge contained in this Indictment, which,
like that in the other indictment, is for obtaining
money by false pretences; and Their. is no false
pretence alleged in regard to that endorsement
But ii IT were material, its alternative form would
render it perfectly nugatory. 1t is an ayerment
Dir. Watkins, without fixing it upon either This
aVerment has no connexion with the charge, and
may be considered as mere surplussagc.
The erasure oil part of the abstract is charge.
ed TO have been done by the defendant as a false
pretence for obtaining the money for his own use
The indictment itself shows this 10 be impossible
because it shows that the money obtained be-
fore the erasure was made. But il is also averred
TO have been done by the defendant to enable him
10 Keep the money to his own use But The offence
he mo tltat hut,
tanning II by false preteBces. The erasure, how
ever, is also aveTred TO have been made with in
tent to cOnSunD,afe his said iraud-that is. the
fraud IN obtaining money by false preteDces. But
the Indictment shows that that fraud, ii commit
ted at all, had been consummated before the
erasure was made. 1t also averred that the era.
sure was made with intent to couer and conceal
his said fraud. But the charge in the indictment
Is for perpetrating, not for covering or conceaig
the fraud. This aYerment, therefore so far as il
regards the charge in the Indictment of obtaining
money by false pretences, is wholly immateral
and irrelevant, and therefore, in that respect, may
be considered as mere surplussage.
But II is said that the AvermeDt concerning this
erasure constitutes substantive and sufficient
charge OF another offence, to wit charge of for
gerry at common law, and that, whether the indict-
ment be good or bad, an indictment for obtain
ing money by false preiences, it is good as an in
dctment for forgery.
1t cannot escape notice that the only injury to
the United States complained of in this indictment
IS by the fraud committed by false pretences; and
that this forgery II il be one, is only alleged incl
dentally as one of those pretences. The defendant
was not informed by this indictment that he was
to come prepared 20 10 the crime OF forge
ry. 1t contains but count, and that is for OBJ
tanning money by false pretences, and if the same
count contains also specific charge Of forgery, il
IS bad for dupicity. No man is bound 10 answer 10
two or more criminal Offences iD Count; and
ven IL they are contained in several Counts and be
not OF the same nature or class, the Court will
compel the prosecutor TO elect that upon which he
intends to put the accused upon his trial: but in no
case is he % be permitted to join several offences
in one Count. In civil actions advantage can be
taken OF duplicity only by special demurrer-but
in criminal cases it is fatal on general demurrer
The present Count undoubtedly contains clear
and distinct, although not sufficient charge Of
fraud by false preences. IL il also contains
charge OF forgery, il is bad for duplicity.
IL does not, however, seem TO us 10 contain a
charge OF forgery as a separate offence. What is
said OF the erasure is merely surplussnge. If this
indictment cannot be supported as an Indictment
Tor forgery, land think il cannol,) il is bad az
an indictment for obtaining money by false preten
ces for the reasons stated respecting the preceding
indictment. The judgment upon this demurrer,
also, must therefore be for the defendant.
After the reading Of the opinion Of the Court was
concluded
Judge Thurston said, that on the day that the
argument in this case was opened. Re rad not sat
IN Courts and the state oftae weather.. bis SD health
and the distance OF h,. residence from the Court
room, had put il out OF his power 10 examine The
authorities on the subject ss closely "a nc could
have wished But, he believed he had heard The