State v. Egglesht , 41 Iowa 574 ( 1875 )

Day, J. —

Whether certain criminal acts constitute one crime or more must depend upon the nature and circumstances of the acts themselves.

When the defendant uttered, at the Davenport National Bank, four forged cheeks, the character of his • act became fixed. He either committed one crime, or he committed four. It is not competent for the state, at its election, by the form of the indictment, to give to defendant’s act the quality of one crime or of four at pleasure. The act partakes wholly of the one character or wholly of the other.

We think the decided weight of reason and of authority supports the position that when defendant by one muscular action and one volition passed to the bank in question four forged checks, and procured them to be placed to his credit, he committed one crime, and not four.

Cases involving analogous principles, (but none ruling the precise point involved, have been cited by the Attorney General.

In Regina v. Brettel, 1 Carr. & Marsh., 609, cited by appellee, it was held that where the defendant stole two pigs at one time, and was convicted and punished for stealing one, such conviction could not be pleaded in bar to a subsequent prosecution for stealing the other pig.

The same doctrine is held in other cases. See 1 Wharton’s Criminal Law, section 565, note x.

But the decided weight of authority seems to be opposed to this view. See Lorton, v. State, 7 Mo., 55; State v. Nelson, 29 Me., 329; Stater. Williams, 10 Humph., 101; State v. Morphine, 37 Mo., 373; Jackson v. State, 14 Ind., 327.

In the case of United States 'v. Btreman, 5 Cranch. (C. C.), 412, also cited by appellee, it was held that stealing goods of several persons at one time constituted as many distinct offenses as there were distinct owners of the goods stolen, and that such offenses might be charged in as many distinct indictments. See also, State v. Thurston, 2 McMullan, 382. Directly opposed to this doctrine -is Lorton v. State, 7 Mo., 55.

It seems impossible to maintain the doctrine of the former .cases upon principle. If the stealing of various articles owned by different individuals, constitutes as many distinct offenses as there are owners, then they cannot be united as one offense in the indictment. If one should at the same time, and as one act, steal two watches, each of the value of fifteen dollars, and owned by different persons, and another person should steal in the same manner two articles of like value owned by one person, it would be difficult to give a reason satisfactory to the legal mind why one should expiate his offense with a fine of two hundred dollars or imprisonment in the county jail for sixty days, whilst the other should be sent to the penitentiary for the period of five years?

If A. should at one. time, and, as one act, hand to a merchant four counterfeit bills, each of the denomination of five dollars, and have the amount passed to his credit, and B. should in like manner pass one bill of the denomination of twenty dollars, we would much doubt whether the “ perfection of human reason ” would be evinced in sending B. to the penitentiary ten years for one crime, and A. forty years for four crimes.

Or, suppose that‘the defendant, instead'of passing to the bank four checks, amounting to $5,000, and procuring credit thereon, had paid over in a similar manner the sum of $5,000 in bills, each of the denomination of five dollars, would it be claimed that he had committed one thousand criminal offenses, each of which might be punished by imprisonment for the term of ten years? Tet there can be no difference in principle between the passing of a counterfeit bank bill and the uttering of a forged check or draft. That the defendant, at each of the banks in question, committed but one offense, is well sustained by authority. See The People v. Van Kuren, 5 Parker C. R., 66; State v. Benham, 7 Conn., 414.

It is urged by the appellee that if the state had failed to prove the forgery of the check described in the first indictment tried, there would have been an acquittal, and that it is a dangerous rule to allow such acquittal to be pleaded in bar to a subsequent prosecution for uttering another check, since it would thereby be placed in the power of the defendant to secure a trial upon the indictment under which he knows no conviction can be had, and then plead the judgment of acquittal as a bar to the other "indictments. But the state can and should' prevent .the happening of any such contingency/by charging the uttering of all the checks offered at the same time, in one indictment and as but one offense. When this is done, proof that any one of the checks was known to be a forgery, will support the indictment.

In The People v. Van Kuren, supra, a party who had a roll of counterfeit bills in his possession was indicted for having one counterfeit bill in his possession, with intent to utter as true, and was acquitted of the charge, and it was held the acquittal was a bar to a prosecution on account of the other bills.

The court erred in sustaining the demurrers to the defendant’s pleas.

Reversed.