102 Va. 927 | Va. | 1904
delivered the opinion of the court.
The accused was convicted of two offences: (1) For forging and (2) for uttering as true a writing purporting to he the last will and testament of his deceased wife. !n their verdict, the jury fixed the punishment at two years in the penitentiary for each offence.
The court is of opinion that there was no error in overruling the demurrer to the second and third counts of the indictment. If the first count was insufficient, as claimed—as to which we express no opinion—the failure to sustain the demurrer thereto resulted in no prejudice to the accused, as the jury only found him guilty upon the second and third counts. For was it necessary, when the jury found a verdict of guilty on the second and third counts, for the court to enter a judgment of acquittal upon the first count, for, when the verdict is silent as to any of the
The court is further of opinion that it was not error to overrule the prisoner’s motion in arrest of judgment. The ground of this motion, was that the two counts—one for forging and the other for uttering the will—constituted one and the same offence, and that the verdict of guilty under each, fixing a punishment for the offence charged in each count, was convicting the prisoner twice for the same offence. This position is not tenable. The second count charged the prisoner with forging the will. The third count charged him with uttering the same. The statute (section 3737, Code 1887), prescribes as the penalty for forgery not less than two nor more than ten years in the penitentiary. The same section prescribes the same punishment for uttering a forged paper, knowing it to be forged. The verdict of the jury was as follows: “We, the jury, find the prisoner, C. C. Johnson, guilty as charged in the second count of this indictment, and fix his punishment thereon at two years in the penitentiary; and we, the jury, further find the prisoner, C. 0. Johnson, guilty as charged in the third count of this indictment, and fix his punishment thereon at two years in the penitentiary.” The judgment of the court was in accordance with the verdict, fixing the term of imprisonment at two years for the offence charged in the second count, and at two years for the offence charged in the third count; the latter punishment to commence at the termination of the term of confinement ascertained for the offence charged in the second count.
It is well settled that forging and uttering are separate and distinct offences. Indeed, the statute makes them separate and distinct. It is equally well settled that each of these offences may be charged in separate counts of the same indictment. It is also true that the jury may find the prisoner guilty upon each count and ascertain the punishment for each offence separately.
While, in view of these authorities, we feel constrained to hold that in a case like this the jury may find the prisoner guilty upon each count, and ascertain the punishment, separately, we are of opinion that the usual and better practice in such cases is to find a general verdict for the two cognate offences charged.
The court is further of opinion that it was not error to admit as evidence other writings of the prisoner, proved to be genuine, and writings of his deceased wife, shown to be genuine, for the purpose of comparing by expert testimony the genuine hand-writings with the handwriting of the alleged forged will. Yor was it error to admit enlarged photographs of these genuine writings for the purpose of facilitating such comparison. Hanriot v. Sherwood, 82 Va. 1; United States v. Ortiz, 176 U. S. 422, 20 Sup. Ct. 466, 44 L. Ed. 52.9. Yor was it error for the jury to take the genuine papers, thus introduced, to their room. After the papers had become part of the evidence in the case, no reason is perceived why they should be excluded from the inspection of the jury. The Code of 1887 (section 3388) provides that “papers used in evidence, though not under seal, may be carried from the bar by the jury.” See, also, Hansbrough v. Stinnett, 25 Gratt. 495, 505.
The court is further of opinion that it was not error to reject the instruction offered by the prisoner, and set forth in his bill of exceptions Yo, 6. Without expressing any opinion as to the áccuraey of this instruction, as an abstract proposition of law, it is sufficient to say that there is not a word of testimony in the record tending to sustain the theory propounded by it.
The remaining assignment of error to be disposed of calls in question the action of the court in failing to have the jury kept together during the progress of the trial. Section 4025 of the Code of 1887, as amended by Acts 1893-’94, p. 223, c. 211, provides that, “in any case of felony, when the punishment can
For the error, therefore, of not keeping the jury together during the progress of the trial, the judgment complained of must be reversed, the verdict of the jury set aside, and the cause remanded for a new trial.
Keith, P., concurs in the views expressed by Harrison, J.
Reversed.