30 La. Ann. 401 | La. | 1878
The opinion of the court was delivered by
On the sixth of December, 1877, the District Attorney filed in the District Court of Ouachita an information against the defendant, •charging that on the twenty-first of November, 1868, he did falsely and fraudulently forge and counterfeit a certain draft, order, or bill of exchange; and in a second count, that on the same date, November 21, 1868, said defendant did feloniously, etc., offer, utter, dispose of, and put off as true and genuine said forged document or writing, knowing the same to be forged and counterfeit, etc. On the eighth of December, 1877, the accused was arrested, arraigned, and pleaded not guilty. The District Attorney thereupon made an affidavit for continuance to obtain the-testimony of one Morris, by whom he swears that he expected to prove “ that the check alleged to have been forged and counterfeited was not drawn by D. T. Head nor executed for his benefit, as it purports on its face, and he is informed that he can also prove by this witness that the indorsement “ W. T. Morris ” upon the back thereof is not his genuine signature and indorsement, but a forgery.” To' avoid a continuance and obtain an immediate trial, the accused agreed to admit that the witness if present would swear to the facts stated in the affidavit. The trial was then begun, and during its progress the District Attorney, with leave of the court, amended the information “ by averring that the offenses ■charged in the original information to have been committed on tho twenty-first of November, 1868, were in reality committed on the twenty-first of November, 1867.” To this amendment the counsel for the accused
A motion for new trial was filed and overruled, and a motion in arrest of judgment made.
First — Because the second count in the' information was prescribed by the lapse of more than one year from the time it was brought to the knowledge of the officer charged with the prosecution.
Second — That under the charge of the court the jury should have brought in a verdict upon each count of the information.
In support of the plea of prescription the defendant’s counsel filed in evidence a copy of a bill of indictment against the same defendant for the same forgery (as admitted by the District Attorney), filed March 16, 1869. This bill however contained no count or charge of uttering. The plea of prescription should have been maintained as to the charge of “uttering” contained in the second count of the information. The offense charged is distinct from that of forgery, of which it is not even a necessary element. It is punishable differently, and is prescriptible by .twelve months, as forgery is not. R. S. 1870, section 986. There is nothing in the information or evidence to take it out of prescription, and the plea was good on the face of the information. State vs. Walters, 16 An. 400; State vs. Freeman, 17 An. 69; 23 An. 433. The burden is upon the State to rebut the plea. It has not done so, and it must prevail. In indictments for forgery at common law it was necessary to set forth the exact tenor of the forged instrument, and any, even a very slight variance, was fatal. This rule which was likewise applicable to misdemeanors also, was relaxed as to them by act of parliament. 9 Geo. IV C.; 15, 12, and 13 Victoria C., 45. Subsequently this relaxation was extended by statute, 14 and 15 Victoria C., 100, from which our own statute regulating the mode of procedure in criminal cases is borrowed almost in exact terms. The adjudications under these acts of parliament, and under similar statutes of other States, are therefore not without weight in interpreting our own law, and so it has been considered by our courts. See 20 An. 145 and 408; 29 An. 601, and cases there cited. By section 1049 R. S., 1870, it is provided that in any indictment for
The information in the present case sets out at length the exact tenor and date of the forged instrument in accordance with that stated in the amendment, -which was for that reason and under the statute just quoted unnecessary, and may be treated as surplusage, so far at least as relates to the charge laid in the first count, which is imprescriptible, while the amendment did not cure the defect as to the charge laid in the second count, which -was prescriptible and prescribed on the face both of the original and amended information. Its allowance therefore worked
The admission of the accused,' though made prior to the amendment, which was not onty unnecessary but immaterial, was therefore properly received in evidence. The general verdict did not vitiate the finding on the good count of the information.
It is therefore ordered, adjudged, and decreed that the defendant’s plea of prescription be sustained, and the judgment arrested as to the second count for the uttering of the forged instrument, and that he bo discharged from further answering thereto, and that the verdict and sentence on the first count for the forgery charged therein be and they are affirmed,