132 S.E. 368 | W. Va. | 1926
The indictment charges that defendant, Walter Perry, forged and uttered a check. Upon a verdict of guilty "as charged in the within indictment," he was sentenced to serve seven years in the penitentiary. This writ followed.
The first error assigned is that the court erred in overruling the motion of the defendant to quash the indictment because it attempts to charge defendant with two separate and distinct felonies, of which, upon proper proceeding and proof, the jury could have found him guilty or not guilty of either or both charges, under Code 1923, Chap. 146, Sec. 5. Counsel for defendant contends that two distinct offenses cannot be joined in an indictment, except by two separate and distinct counts, each being complete in itself.
It is undoubtedly true that the forging of an instrument and the uttering of the same knowing it to be forged are two distinct felonies, each being punishable by a sentence of not less than two nor more than ten years in the penitentiary. Sec. 5, Chap. 146, Code; Johnson's Case,
But counsel for defendant argues that the crime of forgery and the crime of uttering a forged instrument are charged in the one and only count in the indictment, and the crime of forgery being imperfectly charged because the intent to *125
defraud is not charged; wherefore the offense of uttering must also fall, because if there was no forged instrument, properly charged, there could be no crime for uttering it. The indictment charges that defendant on the _____ day of May, 1924, "did unlawfully and feloniously forge a certain order for the payment of money, commonly called a check, for the sum of $9.55 purporting to be the order or draft of one J. E. Bradley, upon the Madison National Bank, of Madison, Boone County, West Virginia, and purporting to be payable to the order of Willie Akers, and did then and there feloniously utter and attempt to employ the same as true and genuine check, he, the said Walter Perry, knowing the same to be forged, with intent to defraud, and against the peace and dignity of the State." If there be a defect in charging the forgery, as claimed, then it becomes necessary to determine if the charge of uttering can be sustained. In charging the crime of uttering it is only necessary to set out the instrument or its substance, and charge that defendant knowing it to be forged did utter and attempt to employ it as true with intent to defraud. It is not necessary to predicate the charge with an averment that defendant or some other person at a time stated forged the writing with intent to defraud, against the peace and dignity of the State. If a person has in his possession a writing which he knows to be forged and attempts to utter it and employ it as true, with intent to defraud, he is guilty, and it makes no difference by whom or when it was actually forged.State v. Tingler,
There are numerous other assignments of error relating to the introduction and rejection of evidence, refusal to give an instruction offered by defendant, the sufficiency of the State's evidence, and refusal of the court to set aside the verdict as contrary to the law and evidence. To pass upon these errors we must examine the bill of exceptions No. 1 which purports to contain all of the evidence, and was certified by the official shorthand reporter as a true and correct transcript of the testimony and proceedings had in the trial. There is a vacation *127
order which says that defendant's bill of exceptions No. 1 was presented to the judge and signed and sealed by him and made a part of the record, within thirty days from final adjournment of the term. The bill of exceptions printed in the record is not signed or sealed by the judge, consequently there is no proper bill of exceptions, as we have heretofore decided in many cases, and we cannot look to the purported evidence. Nor can we consider the instruction offered and refused, unless saved by a proper bill of exceptions; nor can we consider the instructions given which are now by law a part of the record.Shepherd v. McQuilkin,
Affirmed.