Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1839-06-27

'"e diu moi apply to criminal The defecf of
some Of the counts does not affect tie validity II
the rest, and any count is good, Judgment may 10
gwen. Chit. C,im Law, o4g Id. $40 Il isnot
perceived that the prisoner is subjected to any in
convenience, or liable to be taken BY surprise ky
me operation OF this rule. He is appfised by the in
dc,ment OF the CHARGES against hun, and should be
prepared to meet them and IL upon tie trial he
supposes that the evidence does not Justify con.
ve'ion upon any o. tho cotfnts, he can save the
point by spreading the facts proved upon tho record
and moving IN arrest Of judgment or tora new trial
I'm his trial the prisoner objected TO the admission
o'any testimony to prove the passing Of The cn or
'hai The same was forged or counterfeit wnhout-she
production OF the piece Of money alleged TO b
forged and passed; and ,ha, ii. under any circum-
stances such evidence would be admissible, pro-
per ground Tor its introduction had not been laid
here. The abseree Of the forged pieces may in
sreasr the difficulty Of proving the prisoners gull
but there seems 10 good reason for rejecting evil
lenee tending TO satisfy the Jury Of The fact of tho
ie'oo'ous passing, and that the pieces rasssd were
couneticit. II the rule rs contendcd for then
secondary evidence could never be received in pros
cen',on Tor forgery, Tor the objection covers the
whole ground that the production Of the forged
piece was essential tina, all testimony 10 prove its
counterfeit character and the leonlous passing Was
indispensable unless The cain was produced. Tho
contrary has been repeatedly established by tho
courts IN this country and England, 'Pnndleton's
case, Leigh, 69l.2 Russell Ga. Ia the ease be-
tore MS, the Attorney Tor the Commonwealth had
proved the passing 10 Ally Williams that Williams
then resided in the State OF Kentucky aud ,ba, n
subnrna fol him Lad been issued, aud returned nor
found. Without deciding that the case OF coun-
te'le coin falls within tho rule that the best evi-
dcnceg TO be produced, or its loss or absence ac-
connled for and eonceding, for iba sake ofarpu-
menI, that II does, II would seem that sufficient
ground Tor the introduction Of such testimony was
laid here. The coin had been passed to . person
living without tho Commonwe allh. there was no
mode Of enforcing his attendance, and the Common
wealth had done al that was in her power 10 do.
The ground Of the rule Is suspicion OF fraud
For II Il appears that there is better evidence of tho
fact, which is withheld, presumption arises thar
the party has some sinister motive for not produ-
cling H. No such presumption can arise here. The
coin IN question was never in the custody Of tho
officers OF the Commonwealth or under their con-
troll. Nor would inquiry OF Williams have aided
hem. Ills statements not under oath could not
have been used, and unless he appeared and proved
the identity Of The coU, the inquiry would have
been vain. Somr OF the Court, however, are of o.
piOion that tho rule rciemcd To does not apply /,
the ense in question. Where forged insirumen.
is sci out in Tie indictment, il may be more necessary
10 produce tho instrument 10 compare IL with the in
slrnmcnt described, but the fact oil its counterfeit
character is still 10 be established by proof and
though IN inspection et The instrument may tend TO
facilitate the proof, the fact may also he established
by the testimony OF Witnesses who have examined it,
or by the confessions OF the accused liz Moore's
case, . Leigh 705, the defendant indie ed Tor
the larceny OF bank notes Ii WAS ol JeetedLihnt tho
notes should have been Produced, TO ascertain their
identity. and whether they were genuine and DIVA
lue. The Cuur decided that il was unnecessary TO
produce them thai II was the province Of the Jury
10 Judge Of their gennncuessby the evidence. lfnot
produced, that circumstance ~eakens' the proof,
but does not destroy the competency of tho other
evidence to Prove ibe /. be Of value. II ~ conc civ
ed by some Of the Court thai the same principle
appesto The eass III question. The coin alleged tn
be forged IL not set out IN the Indictment by its ten
OF or pprporI, IN the ease of foi ged Instruments
Whether thy piece, II Essdsted was the one passed
and rs counterfeit would depend At las, upon the
evidence, and the question is one wlpirh relates 10
the measure and quanIiIy Of evidence, Of winch tho
Jury are the mlges, aud not 10 the quality Of tho
evidence when compared with some other evidence .
OF n superior degree.
It's unnec essary 10 out the facts detailed in the
see ond bill perceptions tho Court being IMAM
mously of opinion, that the jury well warranted
by the facts aud circumstances proved on The trial.
There IL error, however, IN the judgment OF the
sentencing the prisoner To ten years conine
rnrnt in tbs psniteDtiary. Tile conviction took
rlac after the passage Of the act of March 7, 1885,.
This Law took effect from its passage, and provides
that il any persons shall he convicted Of any Of the
offences mentioned in The first section Of The act 10
punish forge,ics, Rev. Code, eh l54. p. 57s, il
shall be lawful TO sentence such person 10 confne-
nent in the penltcniary for term not less than five
years. FROM the VERDICT Appeals that the offence
10 this eommlttea before the passage Of
the act, But the law IS genssal IN IT'S terms, and
applies all eases OF convictions after its passage
The trial IN this crned sfortly after The law
was passed, and though famor of its passage
had reached the csnniy where the ria took place il
is manifest from the Ending, that the precise terms
of the law not kuowut whether il wis gene
raj or was eonbned To eases which might occur
thereafter. The verde, was intended TO give tho
prisoner the benefit Of the law If ii applied TO his
case and the Court, acting he law then before it,
sentence ed hru to ten years confinement. This error
can be corrected By this Court reversing the iudg-
ment aud entering such judgment The Circuit
Coun should have entered. The verdict takes no
notice ofihe third count of the indictment. In such
case il has been decided BY this Conn, Common
wealth =. Bennet, Va Cas-, 1851 that a Judy
mept Of acauiual should be entered on the CONT az
to which the jury have not iou,d, This can be
done in the Judgment Ip be entered here.
Judgment reversed; and this Court proceeding,
&c. considered that the plaintiff in error be i'm
prl,oDed 10 the public Jail and penite nary house
for the term OF five years, the lowest period by the
Jurors in h-m verdict asceainedS and thai he be kept
IN solitary cell. low aud coarse Diet for the space
ofone twelfth part OF the said term; aud that he he
acquitted of the charge in the third of the n-
dictment
Sbadyack Brown y. Commonwealth.
Pentiou for Of error 10 Judgment of the Cir<
cult Superior Court Of Law and Chancery for WASH
insIon courty,
The petitioner was indicted and tried at October
Term, 1888, for horse stealing. The jury having
found him guilty the charge, and ascertained his
term Of Imprisonment in he pencnt,a,y 10 be hvs
years. he theleupon moved the Couyt set aside the
verdict and gran, him Trial, the ground that
the evidence did not warrant the finding; and the
4. III a