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Opinion of the Court.

charged in the first, second and third counts of the within indictment."

The defendant moved, upon written grounds filed, to arrest the judgment, and to set aside the verdict. The grounds of that motion all related to the sufficiency of the several counts of the indictment. The motion was overruled as to the second count, and sustained as to the first and third.

The defendant, on a subsequent day, tendered his bill of exceptions, embodying the motion in arrest of judgment, with the grounds therefor, and at the same time presented an assignment of errors.

The errors assigned by him in the court below, and made part of the record, wvere: 1. The overruling of the motion in arrest of judgment upon the conviction on the second count of the indictment. 2. The rendering of judgment upon the verdict of guilty on that count, and the sentence of imprison


When the accused was brought into court, after verdict, it was demanded of him what he had or could say why the sentence of the law upon the verdict of guilty on the second count should not be pronounced against him. He replied that he had nothing further to say than he had theretofore said.

1. One of the objections made to the second count was that it was incomplete, and referred in an uncertain, indefinite manner to documents set forth in the first count. The reference to the declaration and affidavit set forth in the first count indicated the documents that were intended to be incorporated, by reference, into the second count; and this reference was not affected by the fact that the first count was defective, or by the fact that judgment upon that count was arrested. One count may refer to matter in a previous count so as to avoid unnecessary repetition; and if the previous count be defective or is rejected, that circumstance will not vitiate the remaining counts, if the reference be sufficiently full to incorporate the matter going before with that in the count in which the reference is made. Blitz v. United States, 153 U. S. 308, 317.

Opinion of the Court.

2. It is said that the second count charges three separate, distinct felonies, and is, therefore, materially defective within the rule that two offences cannot be charged in the same count. 1 Archbold's Cr. Pr. & Pl. 95; 1 Bishop's Cr. Pro. $ 432. Undoubtedly the section of the Revised Statutes, under which the indictment was framed, embraces several distinct acts, the doing of either of which is punishable. It is prohibited either to falsely make, alter, forge or counterfeit, or to cause to be falsely made, altered, forged or counterfeited, any deed, power of attorney, order, certificate, receipt or other writing for the purpose of obtaining, recovering or enabling any other person, either directly or indirectly, to obtain or receive, from the United States any sum of money. It is also prohibited to any person to transmit, or present at, or cause or procure to be transmitted to or presented at, any office or to any officer of the government, any deed, power of attorney, order, certificate, receipt or other writing, in support of or in relation to, any account or claim with the intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited. The second count charged, in substance, not only that the defendant did things and each of them, the doing of which or either of which the statute prohibited, but also that he caused the doing of such things and of each of them. Was the count, thus drawn, so defective as to require that judgment upon it be arrested ?

In Rex v. Hunt, 2 Camp. 583, the question was whether a defendant might be found guilty upon a count in an information, charging him with having composed, printed and published a libel, if it were proved that he simply published but did not compose it. Lord Ellenborough held that it was enough to prove publication. “If an indictment,” he said,

charges that the defendant did and caused to be done a particular act, it is enough to prove either. The distinction runs through the whole criminal law, and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified.” Chitty says: “If an indictment charge that the defendant did, and caused to be done, a particular act, it is enough to prove

Opinion of the Court.

prove either."

either. Thus, under an indictment for forgery, stating that the defendant forged, and caused to be forged, it suffices to

1 Chitty's Cr. Law, 251; Starkie's Cr. Pl. 339. In Rasnick v. Commonwealth, 2 Virginia Cases, 356, it was held that an indictment charging the defendant with the making of certain base coin, of causing and procuring such coin to be made, and of assisting in making it — three distinct offences set out in one count- was sufficient to authorize judgment upon a general verdict of guilty.

So, in Commonwealth v. Tuck, 20 Pick. 356, it was adjudged that a count in an indictment, alleging that the defendant broke and entered a shop with intent to commit larceny, and did there commit larceny, was not double. In that case, doubt was expressed whether the objection that an indictment, containing one count, and embracing more than one offence, could be taken advantage of in arrest or on error — the court observing that the better opinion was that it cannot, and that the appropriate remedy of the accused, in order to avoid the inconvenience and danger of having to meet several charges at the same time, is a motion to quash the indictment or to confine the prosecutor to some one of the charges. In another case, arising under a statute of Massachusetts making it an offence to set up or promote certain exhibitions, without license therefor, an indictment, containing a single count, and charging that the defendant set up and promoted a certain exhibition, was sustained against the objection of duplicity. Commonwealth v. Twitchell, 4 Cush. 74.

Under a statute of New Jersey, making it an offence to burn or cause to be burned any barn, not parcel of a dwelling house, an indictment, containing one count, charging that the defendant “burned and caused to be burned," etc., was sustained by the Supreme Court of New Jersey in State v. Price, 6 Halsted, pp. 203, 215. Among other authorities the court cited Starkie, who says: “It is the usual practice to allege offences cumulatively, both at common law and under the description contained in penal statutes ; as that the defendant published and caused to be published a certain libel; that he forged and caused to be forged," etc. Starkie's Cr. Pl. 271.

Opinion of the Court.

So, under a statute of Pennsylvania, making it an offence for supervisors of highways to neglect to open or repair a public highway, it was held proper to charge in one count the neglect to open and repair such high way, the court observing that the offences of not opening and not repairing were of the same character and description, if indeed they were distinct. Edge v. Commonwealth, 7 Penn. St. 275, 278.

We are of opinion that the objection to the second count upon the ground of duplicity was properly overruled. The evil that Congress intended to reach was the obtaining of money from the United States by means of fraudulent deeds, powers of attorney, orders, certificates, receipts or other writings. The statute was directed against certain defined modes for accomplishing a general object, and declared that the doing of either one of several specified things, each having reference to that object, should be punished by imprisonment at hard labor for a period of not less than five years nor more than ten years, or by imprisonment for not more than five years and a fine of not more than one thousand dollars. We perceive no sound reason why the doing of the prohibited thing, in each and all of the prohibited modes, may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused, who pleads not guilty to the charge contained in a single count; for a judg. ment on a general verdict of guilty upon that count will be a bar to any further prosecution in respect of any of the matters embraced by it.

3. But an objection is made to the proceedings in the court below which is of a serious character.

The record does not show that the accused was ever formally arraigned, or that he pleaded to the indictment, unless all that is to be inferred simply from the order, made at the beginning of the trial and as soon as the accused appeared, reciting that the jury were selected, empanelled and sworn “ to try the issue joined,” and from the statement in the bill of exceptions that the jury were “sworn and charged to try the

Opinion of the Court.

issues joined.” What that issue was is not disclosed by the record.

The Government does not, in terms, claim that it was unnecessary for the defendant to plead to the indictment. But it assumes (although the record does not state such to be the fact) that the defendant pleaded not guilty, and contends that the omission to record that plea is only a clerical error which did not prejudice his substantial rights.

By section 1025 of the Revised Statutes of the United States it is declared that “no indictment found and presented by a grand jury in any District or Circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant."

Is it a matter of form only whether the accused pleads or does not plead to an indictment for an infamous crime? If it be not a matter of form, then it would seem that, if convicted, the fact that the accused did plead should clearly appear from the record, and not be left to mere inference arising from a general recital that the jury was sworn to try and did try "the issue joined,” without stating what was such issue. While, as said in Pointer v. United States, 151 U. S. 396, 419, all parts of the record are to be interpreted together, so that, if possible, effect be given to all, and a deficiency in one part of it supplied by what appear's elsewhere, it was there held that “the record of a criminal case must state what will affirmatively show the offence, the steps without which the sentence cannot be good, and the sentence itself.”

In capital or other infamous crimes an arraignment has always been regarded as a matter of substance. “The arraignment of the prisoner,” Lord Coke said, “is to take order that he appear, and for the certainty of the person to hold up his hand, and to plead a sufficient plea to the indictment or other record.” Co. Litt. 263a.

According to Sir Matthew Hale, the arraignment consists of three parts, one of which, after the prisoner has been called to the bar, and informed of the charge against him, is, the

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