71 Miss. 874 | Miss. | 1894
delivered the opinion of the court.
The motion to quash the indictment was properly overruled. Objections to an indictment for defects appearing on
If we should consider the motion to quash as though it were a demurrer, as urged by counsel to do, no different result would follow, for, as a demurrer, it should be overruled, because it goes to the whole indictment, and since one count thereof is confessedly good, the demurrer is too broad, and, for that reason, could not be sustained.
Whether the state shall be required to elect upon which of several counts of an indictment it will proceed is a matter that rests within the discretion of the trial court, and where, as here, it appears that the defendant was not prejudiced by the refusal of the court to compel an election, such refusal is not available as error. Hemingway v. The State, 68 Miss., 371.
If the indictment would have been bad had it contained the name only of the First National Bank as the person intended to be defrauded, because of the want of an averment that the bank was an incorporation, it is protected from attack on this ground by the averment that the intent was to defraud the bank and W. X. Wilson. Bishop’s Dir. and Forms, § 457; 2 Bishop’s Cr. Proc., § 425.
The second count of the indictment is defective, in that it fails to charge that the forged instrument was “knowingly” uttered by the defendant. But a general verdict of guilty upon an indictment containing one good count will not be disturbed because of another defective count in the indictment if the evidence supports a conviction on the good count. Miller v. The State, 5 How., 250; Scott v. The State, 31 Miss., 473; Wash v. The State, 14 Smed. & M., 120.
We find no error in the action of the court in its rulings upon the competency of evidence or in the instructions, and
The judgment is affirmed.
