Hawthorn v. State

Miller, J., delivered the opinion of the Court. It appears from the record in this case that the indictment as originally drawn, charged that the plaintiff in error “ devising and - intending to cheat and defraud one ⁵³² Joseph Kausler, cashier of the Hagerstown Bank of said Washington County and State of Maryland, of his goods and moneys, did falsely, fraudulently and feloniously forge and counterfeit the name and endorsement of a certain Hester Hawthorn upon the back of a certain cheque, the tenor of which said cheque is as follows, that is to say: “ Chambersberg, Pa., March 29th, 1880. “ National Bank of Chambersburg pay to Hester Hawthorn or order, three hundred dollars. $300.00. E. H. Hagerman. “ which said false, forged and counterfeited endorsement of the aforesaid Hester Hawthorn’s name on the hack of the cheque aforesaid, was made and written by the aforesaid William Hawthorn, with intent to cheat and defraud the said Joseph Kausler, cashier as aforesaid, contrary to the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.” To this indictment the accused pleaded not guilty, but before the jury was sworn, the State’s Attorney moved to strike from the indictment the words charging that the forgery was committed with intent to cheat and defraud Joseph Kausler, thus leaving it as simply charging that the act was done with intent to cheat and defraud, without stating the name of any particular person intended to be defrauded. This motion was granted by the Court and the indictment so amended is set oiit in the récord.

Upon, the trial the jury rendered a verdict of “ guilty,” which as extended in the record is “ that the said William Hawthorn is guilty of the matter whereof he stands indicted.” Motions in arrest and for a new trial were then made, both of which were overruled, and ■ the party was sentenced to he confined in the penitentiary for the period of five years. He then applied to have the record ⁵³³ removed to this Court as upon writ of error ; and the points or questions of law designated in his application, hy the decision of which he alleges he is aggrieved, though stated under several heads, are in substance but two, viz., 1st. That the forgery of the endorsement of the name of Hester Hawthorn upon the instrument set out in the indictment, is not a felony under the laws of Maryland, and the Court had no power to sentence him to the penitentiary therefor. 2nd. That the Court below had no legal power to authorize the State’s Attorney to make the alteration, above referred to, in the indictment. 1st.

As to the first point it might he sufficient to say, that as there was no demurrer to the indictment either in its original or amended form, the question is not so presented as to warrant its being considered hy this Court. If this forgery be not a felony, as the indictment charges, it is plain the objection could have been taken by demurrer, and it is plainly provided by the Code, .Art. 30, sec. 82, that no judgment shall he reversed “for any matter or cause which might have been a subject of demurrer to the indictment.” In Cochrane vs. The State, 6 Md., 400 , it was decided, that since the Act of 1852, ch. 63, (which is now Art. 30, sec. 82, of the Code,) if the prisoner does not choose to demur, hut goes to trial on the plea of not guilty, and he is found guilty, judgment may be pronounced by the Court notwithstanding the indictment is defective. But as it has been- earnestly argued hy his counsel that there is no more warrant in law for sentencing the plaintiff in error to the penitentiary for five years for forging the endorsement of the payee’s name on this cheque, than there would be to hang him, and that the failure to demur does not remove this ground of reversal, because the error lies in the sentence which a demurrer cannot reach, we shall consider the question and dispose of it. We do this for the purpose of ⁵³⁴ deciding the point so as to settle the law and to remove all douht as to the validity of sentences in similar cases, for which parties are now undergoing punishment in the penitentiary.

The exact question presented is, has the forgery of the endorsement of the payee’s name ■ upon an ordinary hank cheque payable to his order, been made a felony by the statute law of this State, and punishable by confinement in the penitentiary for the period