¶1 October 30, 1905. After careful consideration of the petition herein, the Court is satisfied that no material question of law has been either overlooked or disregarded.
¶2 It is, therefore, ordered, that the petition be dismissed and that the order heretofore granted staying the remittitur be revoked.
¶3 The CHIEF JUSTICE did not participate in this opinion because of illness.
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Status
Disposition: Affirmed
Case posture Disposition Affirmed. Posture Before PURDY, J., Sumter, March, 1904. Affirmed.Indictment against George W. Murray for forging and uttering a lease. From sentence on verdict of guilty, defendant appeals on following exceptions:
First. Because, it is respectfully submitted, his Honor erred in allowing the State, over the objections of the defendant, to challenge peremptorily more than two jurors; whereas, the law only allowed the State two challenges in the trial of said case.
Second. Because his Honor erred in refusing the motion of the defendant to direct a verdict of not guilty upon the close of the case for the State, which motion was made on the grounds: (1st) that the State had not proven that the lease was uttered by the defendant with any knowledge of its falsity; 2d because there was no evidence to show any intent to defraud; 3d because there was no evidence tending to show an effort to cheat or defraud by means of the lease; (4th) that there was no evidence tending to show that the defendant forged the lease or had any knowledge of the alleged forgery; (5th) because there was no evidence that the paper was actually uttered; but, on the contrary, it appeared that the lease was introduced in evidence by the defendants attorney simply because it was in existence, and the evidence showed that the lease as introduced was in exact accordance with the terms of the lease relied upon by the plaintiffs, and consequently could not under any view of the testimony operate to cheat or defraud any person; and it further appeared that the defendant could not be convicted of uttering a forged instrument, under section 373, Criminal Code, because that statute only undertakes to define forgery, and cannot cover the independent crime of uttering a forged instrument, because it would be unconstitutional to that extent, the title of the act being `Forgery and Offenses against the Currency.'
Third. Because his Honor erred in not granting a new trial in said case, on the motion of the defendant, made upon the minutes of the Court, upon the grounds that the undisputed oral and documentary evidence taken in the case at
bar, and in the proceedings leading up to the case, and in which the lease was used as evidence, showed conclusively that the same was used only for legitimate purposes, and that the use of the same under the issues raised by the pleadings could not operate to cheat or defraud the Chatmans, nor could the defendant have intended to have cheated or defrauded the Chatmans, because said lease was in exact terms as that introduced in evidence by the Chatmans. And because there was no evidence tending to show that the defendant either forged or caused to be forged the lease, nor was there any evidence tending to show that the defendant had any reason to believe the lease to have been forged; because said lease being in exact accordance with the true contract as set up by the Chatmans, its introduction in evidence strengthened the case of the defendant, for the reason that the sole issues raised by the pleadings and evidence in the case for specific performance were: (a) the legal construction of the lease as to whether it was a lease with an incidental right of purchase, or whether it was contract of purchase with a right vested in the lessee to comply at any time, whether in default or not; (b) whether or not the five acres of land included in the lease had been returned by the Chatmans at an agreed price or not. And because the evidence as a whole taken in connection with the good character of the defendant, which was proven in the case, was totally insufficient to support a verdict of guilty.
And because the statute under which the defendant was tried, to wit: Section 373, is unconstitutional, the same being contrary to the provisions of article II., section 20, of the Constitution of 1868, and Article III., Section 17, of the Constitution of 1895, in that the title of said act relates to `Forgery and Offenses against the Currency, and provides for the punishment of crimes already existing, to wit: the crimes of forgery and of offenses against the currency, but the body of the act provides a punishment for persons 'willingly acting assisting in the false making, forging or
counterfeiting of any writing or instrument of writing, or of uttering, or publishing as true, any false, forged or counterfeited writing, or instrument of writing;' and that said act, so far as it relates to the uttering as trued any false, forged or counterfeited writing, is unconstitutional, null and void.
And the conviction in this should not be allowed to stand under avoid statute. Source: CourtListener
