JOSEPH A. CAMPBELL v. COMMONWEALTH OF VIRGINIA
Record No. 921406
Supreme Court of Virginia
June 11, 1993
Carrico, C.J., Compton, Stephenson, Whiting, Lacy, Hassell, JJ., and Poff, Senior Justice
174
Robert Q. Harris, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
SENIOR JUSTICE POFF delivered the opinion of the Court.
We awarded this appeal from the Virginia Court of Appeals to consider the question presented by the defendant‘s assignment of error, that is, whether conviction of forgery of public records requires proof of harm or prejudice to the rights of another person. We also granted the cross-error assignеd by the Commonwealth in order to address the question whether this Court has jurisdiction to adjudicate that assignment. Because we decide both questions in the negative, we do not reach the subsidiary issues raised by the parties.
Joseph H. Campbell, a judge of the General District Court of the City of Norfolk, was convicted by a jury in the Circuit Court of the City of Norfolk of a violation of
The evidence adduced at trial is detailed in the record before us and, under familiar principles, we will review the evidence in the light most favorable to the Commonwealth. On March 20, 1989, Paul A. Sciortino, then Commonwealth‘s Attorney for the City of
Pursuant to a longstanding policy of the General District Court, Sciortino and his attorney, Andrew Ege, met with Campbell in his chambers to plead guilty to the ticket. During the meeting, Ege, in a “lighthearted manner“, asked Campbell if the court could “just dismiss it.” Campbell informed Ege and Sciortino that “the usual disposition on a plea of guilty is $60 fine and thirty suspended and traffic school.” Sciortino and Ege agreed that this was acceptable and Sciortino paid the fine. Ege then asked if Sciortino‘s name had to “appear on the docket“. Campbell said that the case had to appear on the docket. Next, Ege asked, “if his name is misspelled you don‘t have to correct it, do you?” Campbell responded that “there are a lot of clerical errors.”
After Sciortino left, Campbell approached Kathleen Baker, a deputy clerk, and asked her to display Sciortino‘s rеcord on the computer. This computer was utilized to create a daily docket record for the General District Court. Sciortino was engaged in a political campaign for reelection, and Campbell told Mrs. Baker that Sciortino was “scared to death about this accident because Paul thinks that the newspaper is going to crucify him again, and they probably will.” Campbell then asked Mrs. Baker to “scramble or jumble” the letters of Sciortino‘s last name on the computer scrеen. Mrs. Baker changed the spelling from “Sciortino” to “Schortinoe” and asked Campbell, “How is that?” Campbell then asked her to switch the middle and the first name from “Paul A.” to “Anthony P.“. As he walked away from the computer, Campbell told everyone to “get back to work“.
The jury fixed Campbell‘s punishment at three years’ confinement in the penitentiary.1 Campbell moved to set aside the verdict on the ground that the Commonwealth had produced no evidence of harm or prejudice to another‘s rights. The trial court ruled that conviction of forgery of public records did not require such proof, denied the motion, and imposed the sentence fixed by the jury with the balance of the term of imprisonment to be suspended after six months’ confinement in jail.
As thе forgery of a public record is specifically listed as a writing or document which serves as a predicate to the offense of forgery, as codified in
Code § 18.2-168 , it need not be considered under the catch-all provision ofCode § 18.2-172 which addresses “other writings.” The words “to the prejudice of another‘s right” are only employed in cases involving writings other than those specifically listed as predicates to the offense of forgery. In the context of “other writings,” the words “to the prejudice of another‘s rights” serve to distinguish “between those writings which might affect the rights of others whereof forgery might be committed, and other writings, by which, whether false or genuine, the pecuniary interests of others could not be affected.”
Campbell v. Commonwealth, 13 Va. App. 33, 40, 409 S.E.2d 21, 25 (1991) (citation omitted). Applying Rule 5A:18, the panel further held that it could not consider Campbell‘s challenge to the intent-to-defraud instruction granted by the trial court because he had not properly preserved the issue at trial. Id. at 42, 409 S.E.2d at 27.
Granting Campbell‘s petition for a rehearing enbanc, the Court of Appeals limited the rehearing to the question whether the panel should have applied the “ends of justice” exception to Rule 5A:18. Campbell v. Commonwealth, 14 Va. App. 988, 421 S.E.2d 652 (1992). In the August 11, 1992 opinion, the Court of Appeals decided that question in the affirmative but left “unchanged the panel‘s disposition of other issues originally raised on appeal“. Id. at 990, 421 S.E.2d at 653. The en banc court reversed Campbell‘s conviction and remanded the case for a new trial. Campbell appeals so much of that decision as upholds the rulings of the panel and the trial court that harm or prejudice to the right of another is not an еlement of forgery of public records. The Commonwealth assigns error to the en banc ruling underlying the decision to reverse the conviction.
[i]f any person forge a public record, or certificate, return, or attestation, of any public officer or public employee, in relation to any matter wherein such certificate, return, or attestation may be received as legal proof, or utter, or attempt to employ as true, such forged record, certificate, return, or attestation, knowing the same to be forged, he shall be guilty of а Class 4 felony.
This statute controls our determination of the case; however, the first inquiry we make in our interpretation of this statute concerns the posture of English common law.
Campbell argues that by “utilizing the common-law term ‘forge,’
“Of Forgery there are two kinds; First, by common law. Secondly, by the Statute. Sect. 1. Forgery by the common law seemeth to be an offence in falsely and fraudulently making or altering any matter of record; or any other authentic matter of a public nature ....” 1 William Hawkins, Pleas of the Crown 263 n. 1 (London, 8th ed. 1824).
“[A]t Common Law the Counterfeiting a Matter of Record is Forgery; for since the Law gives the highest Credit to all Records, it
The question whether proof of harm or prejudice was essential to conviction of forgery of public documents, as well as conviction of the crime of forgery of private writings and the distinctions between the common-law crimes and the statutory offenses were considered in Rex v. Ward, 92 Eng. Rep. 451 (K.B. 1727). There, Ward was convicted of a charge of “falsely making and forging a writing upon the back of a certificate in writing“. Id. at 452. On appeal, Ward contended that forgery was an offense at common law only if the writing was a public document and that the writing in issue was a private paper. Ward also maintained that the statutes creating the crime of forgery of such a paper required proof of actual harm or prejudice and that, absent such proof against him, he was wrongfully convicted of forgery. The King maintained that forgery of private papers was not a crime at common law; that “if such counterfeit letters had been at common law punishable as forgery, the making [of] that statute was unnecessary and useless“, id. at 453; and that the proof of harm or prejudice resulting from Ward‘s acts was sufficient to support his conviction.
Resolving these conflicting views, the court in Ward concluded that forgery of private writings, as well as forgery of public records, was an offense at common law; that proof of the potential for harm or prejudice to another was an element of the former but not of the latter; that the writing in issue was a public document;
Most commentators have understood the Ward decision to establish that
at common law it was forgery to make false private writings, as a bill of sale, bill of lading, an acquittance, a warrant of attorney, a bill of exchange. And [Ward] made this distinction between forgery at common law, and cheats by means of false tokens, under the stat. 33 Hen. 8. c. 1. that by the statute it was necessary the party should receive an actual prejudice, which was not necessary in forgery; in the latter case, it was sufficient if the party might be prejudiced by it.
1 William Hawkins, Pleas of the Crown 263 n.1 (London, 8th ed. 1824) (emphasis added); accord 2 William Russell, On Crimes 348-49 (Philadelphia, 4th ed. 1841); 3 Chitty‘s, Criminal Law 449-50 (Philadelphia, 1819); 2 Edward East‘s, Pleas of the Crown 859-60 (Philadelphia, 1806); 2 Matthew Bacon, Abridgment *568 (1786).
Applying the rules reconciled and the principles established in Ward and summarized by contemporary commentators, we hold that actual harm or prejudice to the rights of another was not an element of the crime of forgery of public records at English common law and that, pursuant to
Even so, Campbell contends that the posture of the English common law in 1776 has been altered by the General Assembly. Specifically, he maintains that “the history of
The Code of 1819 defines the crime of forgery for
any land warrant ...; any paper bill of credit ...; any certificate, manifest or receipt of any public inspector of flour, hemp, tobacco, or other thing; any loan office certificate; certificate of ... stock ...; or any rеcord of any court, or public office, or of any body politic or corporate; or any will, testament or codicil; any deed, bond, writing or note; any bill of exchange, draft or order; any assignment, transfer or endorsement; any defeasance, acquittance or receipt; or any letter of credit, or other writing, to the prejudice of another‘s right ....
Va. Code ch. 154, § 4 (1819).
Construing this language, the Attorney General asserts that “[t]he descriptive phrase ‘to the prejudice of another‘s right’ appeаrs only in relation to ‘other writings.‘” Campbell believes that “[t]he better reading of the 1819 act ... is that in each of its list of objects, forgery requires proof of the element of prejudice, just as forgery of the ‘other writings’ in the residual category also requires proof of prejudice” (emphasis in original).
We agree with the Attorney General‘s construction. We think that the purpose of the 1819 Act was to codify the English common law and to preserve its distinctions between forgery of public records and forgery of private documents. In our view, the language “to the prejudice of another‘s right” modifies only writings other than those specifically listed by name.
Campbell‘s reading of the language ignores both English common law and this Court‘s decisions construing that language. In Murry v. Commonwealth, 32 Va. (5 Leigh) 720 (1835), this Court faced the issue whether the Code of 1819 required an allegation of actual prejudice of another‘s right in an indictment charging forgery of a bank note. We concluded that those words
relate, not to the different writings particularly mentioned in the previous part of the section, the counterfeiting of most of which hаd, long before, been made [a] felony; but only to the words immediately connected with them; ”any other writing, to the prejudice of another‘s right.”
Id. at 723 (emphasis in original); accord Powell v. Commonwealth,
Our interpretation of the 1819 statute is reinforced by the content and structure of the forgery sections contained in the Code of 1849. In its revision of the 1819 Code, the General Assembly divided the old statute into six sections. One dealt with public documents generally, one with keeping an instrument to forge the seal of court, one with forgery of official currency, one with the forgery of stamps, and one with forgery of bank notes. Section five alone dealt with forgery of private papers, and only that section required proof of “prejudice of another‘s right“.
For more than a century, the statutory scheme framed in the Code of 1849 has remained essentially unchanged in form and substance. In every revision made by the General Assembly, “prejudice of another‘s right” or equivalent language has been written into only those sections of the forgery statutes defining forgery of private writings.6 In no revision has any such language been includеd in those sections defining forgery of public records.7
Construing the seven sections of the current forgery article literally and strictly, we find that the article emphasizes legislative intent to continue that policy.
To give the decision in Coleman the interpretation Campbell urges is to assume that this Court ignored the scheme of the Code current at that time and that of all its predecessors, the opinions of this Court in Murry, Powell, and Linton cited above construing the Code of 1819, and the common law of England as pronounced in Ward. We make no such assumption, and to the extent Coleman fairly may be subject to the interpretation Campbell urges, that decision is expressly overruled.
We agree with the ruling of the panel of the Court of Appeals affirming the ruling of the trial court that harm or prejudice to the right of another person has never been and is not now an element of the crime of forgery of public records in this Commonwealth.8 The Court of Appeals sitting en banc upheld those rulings; to that extent, we will affirm its judgment.
As we have said, our order granting the cross-error assigned by the Commonwealth in Campbell‘s appeal was сonditioned upon our instruction that the parties address the question whether this Court has jurisdiction to adjudicate that assignment.9
In support of the affirmative, the Attorney General argues on brief that “[w]hen a criminal defendant appeals to this Court, he brings the entire judgment of the Court of Appeals before this Court for review, and there is no valid constitutional or statutory prohibition to assignment of cross-error by the Commonwealth.” We disagree.
The source of the original and appellate jurisdiction оf the courts of this Commonwealth is
[t]he General Assembly may also allow the Commonwealth a right of appeal [from certain pre-trial orders] in felony cases ... [provided the appeal is pursued] before a jury is impaneled and sworn ... or, in cases tried without a jury, before the court begins to hear or receive evidence or the first witness is sworn ....
However, the Constitution expressly mandates that “[n]o appeal shall be allowed to the Commonwealth in a casе involving the life or liberty of a person“.
The final sentence in
The case at bar is suсh a case. Campbell was convicted of a criminal offense. Confirming the penalty fixed by the jury‘s verdict, the trial court sentenced him to confinement for three years in the penitentiary, the balance of the term to be suspended after he had served six months confinement in jail. In support of his assignment of cross-error,10 the Attorney General, posing a question wholly distinct from the issue raised in this appeal, contends that the Virginia Court of Appeals erred in reversing Campbell‘s conviction and thаt “the judgment of the circuit court should be affirmed.”
As the Attorney General observes, the Supreme Court of the United States has held that the double jeopardy clause of the federal constitution does not bar reprosecution following reversal of conviction on appeal. Green v. United States, 355 U.S. 184, 189 (1957). Yet, if we were to consider and uphold the Attorney General‘s assignment of cross-error, Campbell would lose the opportunity for acquittal in the new trial afforded him by the en banc judgment of the Court of Appеals. We think such a case is one “involving the life or liberty of a person“.
It is true, as the Attorney General says, that “[t]he Commonwealth filed no notice of appeal or petition for appeal, and is a party
The Commonwealth of course cannot appeal criminal cases which do not involve State revenues. We will nоt in this appeal permit the Commonwealth to accomplish indirectly what it cannot do directly ....
Hart v. Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 811 (1980) (citations omitted).
We hold, therefore, that the Attorney General‘s assignment of cross-error is tantamount to the appeal expressly excluded from appellate jurisdiction by the Constitution of Virginia.11
We will vacate that portion of our order that granted the assignment of cross-error and, as we said above, we will affirm the judgment of the Court of Appeals to the extent it upheld the ruling of the panel of that court challenged in this appeal by Campbell‘s assignment of error.
Affirmed.
JUSTICE LACY, concurring:
I concur in the majority opinion in this case and write simply to clarify my understanding of that holding regarding this Court‘s jurisdiction to consider the assignment of error raised by the Commonwealth.
The issue before this Court today is whether, in an appeal by a defendant from a decision of the Court of Appeals in a criminal case, this Court has the appellate jurisdiction to consider a cross-error raised by the Commonwealth. The answer to this question is straightforward and plain. The Constitution and statutes are the source of this Court‘s appellate jurisdiction. There is nothing in either which creates appellate jurisdiction of this type in this Court. Consequently, this Court does not have the jurisdiction to consider
Notes
But
The Court of Appeals erred in invoking the ‘ends of justice’ exception to Rule 5A:18 to review the propriety of an instruction on grounds never raised in the trial court, and to reverse Campbell‘s conviction in the absence of any possibility that the jury was misled by the instruction at issue.