Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1839-06-21

into Court and their oath do say We Of the ury
nno the prisoner Allen NJ Sperry, guilty Of the felony
charged anu DO ascertain the period of his confinement
In the public Jail and penentiay house be five years
ana we further find that the mare stolen has been re
stored to the owner thereof" Whereupon The prisoner
was remanded 10 Jail
IL il can be inferred from the circumstance that The
prisoner was remunded TO Jail that he personally
present during the proceedings The 2Sih Of pri
when The verdict Of conviction found there is ne
such circumstance stated in the proceedings Of the pre-
ceding day. The only statement in regard 10 the an
pearance Of the prisoner that day that he appeared
by his attorney without any circumstance slated IRON
which II can necessarily be Inferred that the prisoner
personally present An appearance by attorney cannn
imply that the prisoner was personally present in Cour,
and therefore The record is deficient in hat the law
CARDS as essential 10 be stated in such case.
For this error therefore, the Court is of opinion tina
the Judgment must be reversed, and renire acias d.
moro awarded
James KIRK " Commonwealth
Writ Of error 10 judgment of Circuit Superior Cour
OF Law and Chancery Tor Csbell county, rendered
against the Plaintiff in at April Term, 1885, upor
an indictment for counter eiting and passing base coin
The indictment contained three counts The frs
stated, sthat james Kirk the 10Th of March, 1888
al The county Of Cabe, felonously did pass 10 one Ally
Williams, certain counterfeit, forged and base coin
the Likeness and simude Of the MEXICAN coin and mo
ney called dollar, current within the Common wealth o.
Virginia, and for dollar, with intention 10 niure
defraud the said Ally Williams; he the said James Kirk
al the time he aforesaid passed The said base coin
well knowing the TO be false, forged and counter
feted, contrary TO the form Of the statute &c. The
second charged passing aud offering pass tc
Ally Williams, with intent injure and defraud the
persons inhnbi,ing the Common wealth of Virginia
The third count charged the said Kirk with forging and
counteeitng two base cuins of the likeness and sInl
tude of the Mexican dollar, with intent 10 init ano
deiraud the persons inhabng the Commonwealth o.
Virginia.
The prisoner movedto qussh each count in the nd;c
meht; which motion ovesruled He then pleadet
not guilty, and the jury mpannelled for his trial len
dered vedc, in these words: I'VE the jury find The
prisoner james Kirk guilty OF the felony charged in the
two first counts IN the indictment, which passing and
offering 10 pass committed the first day of March
1885, and we do ascertain the period Of his confinement
in The public jail and pen.enary house to be ten years
If from The law that The eusl period prescribed but
FIVE years be the minimum then ascertain the period
Of his confinement in the public Jail and penentiary
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 forth that the trial the attorney for
The Commonwealth offered to give evidence and proof
that the prisoner at his residence in Cabrll county, had
passed 10 certain Ally Williams counterfeit dollar Of
the likeness and smililude Of Mexican dollar, current
in this Commonwealth, knowing the same 10 be forged
and counterfeit, but without producing the coin al
legged TO have been passed. and for passing which the
prisoner then trial. That il had also appeared
in evidence that the said Ally Williams resided in Ken
lucky at the time of The trial, and that subpoena had
been issued for him, nabe TO that term OF the Court
which subpoena had been returned not found Where
upon the prisoner objected 10 The admsslby OF any
dencc ening 10 prove the passing Of such counterfeit
dollar aforesaid, that The was forged and coun
terie unless the attorney for The Commonwealth hrs
produced in Court the same cnn alleged TO be forged
and counterfeit and to have been passed as aforesaid
This objection overruled and The attorney for the
Common wealth permitted 10 give evidence OF The pass
ing aforesaid and that the dollar passed 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 aforesaid To which opinion
Of the Court the prisoner excepted
Tie second bill of exceptions was taken 10 the opin
ion OF The Court refusing new trial. which was moved
for by the prisoner The ground that the evidence did
not warrant the verdict Tins b!l set out all The facts
proved in the cause II is unnecessary 10 state them
since By The unanimous opinion OF the General Court
they fully sustained the conviction.
The Circuit Cour, rendered judgment that Kirk be
imprisoned in the Penenliary Tor ten yeors the period
by the Jurors in their verdict ascertaned"
T. r Grattan for The plaintiff in erSor and the Auor
ney-Genea for the Commonwealth submitted The case
without argument.
Allen J. delivered the opinion of the General Court
The first question for the coRsde ration OF this Court
grows Of the motion to quash each of The counts in
the indictment majority Of the Court are OF opinion
that il necessary TO decide upon the sufciency o
each The fist count ia free from objection and
the indictment finds the prisoner guilty OF the felony
charged in the frat and second counts and the
term Of Imprisonment al The lowest period allowed
BY law. Every separate count Is in the nature Of DIS
tnct inQctmeBtJ anu though ClSH ufioie
Law was changed byour statute, where the declaration
contained several counts Of which good and
others defective, and the jury gave entire damages
Judgment could b, given this rule did not apply to
criminal The defect some Of the counts does not
affect the validity of the rest and if any count is good
iudpmen, may be given. Chit. Grim Law, 2i9 ID 64O
1t not perceived that the prisoner is subjected TO any
ncon venience liable 10 be taken by SURPRISE by the
operation of this rule. He Is upprlsed 6y the lndcl
men, of the charges against him, and should De pre-.
pared TO them; and il upon the trial he supPoses
that the evidence doee not justify conviction upon my
of the counts he The point by spreading The
facts proved upon the record, and moving IN arrest OF
Judgment for new trial.
On his trial the prisoner objected 10 the admission ct
any testimony prove The passing OF the com, or tho'
the same forged counterfeit without The prodoc
lion of the piece Of money alleged 10 be forged and pass
ed and that it, under any circumstances, such evidence
would be admissible proper ground Tor lis introduction
had moi beer laid here The absence OF the forged pieces
NAV increase the difficulty OF proving The prisoner gult;
but there 10 be good reason Tor reecng evi-
dence eudng to satisfy the jury of the fact of the feo
nors passing, sDd that the passed were counter
felt If the rule commended Tor then secondary
evidence could never be received IN prosecution Tor
forgery for the objection covers The whole ground mat
the production Of the forged essential and that
all testimony TO prove its counterfeit character and the
feonious passing inadnissble unless The coin was
produced. The contrary has been repeatedly
by the courts in this country and England Pendleton
case Leigh, Gg4 Russell, GA In The case before
Ms the Attorney for the Commonwealth had proved the
passibg 10 Ally Williams that Williams then resided IN
The State Of Kentucky; and tina, subpoena for him had
been issued, aud returned not found Without deciding
that The case Of counterfeit coin falls within the rule that
the hes, evidence is be produced lis loss absence
accounted for and concedng for the sake OF argument
that il does it would that sufficient ground Tor
the introduction OF such testimony laid here he
coin had been passed 10 person living without the Com
mouwealth there mode of enforcing his attend
ance and the Common wealth had done all that was IN
her power do. The ground Of the rule is suspl-
con OF fraud For if it appear that there is better
evidence of the fact, which is withheld, Presump-
lion arises that the party has some sinister motive
for mol producing it, No such presumption can
mise here The coin in question was never IN the
custody of the officers of the Commonwealth or un'
der their control. Nor would inquiry OF Williams
have aided them His statements not under oath
could no, have been used and unless he appeared
"a nrnred The identity of the coin, the inquiry