State v. Witham , 47 Me. 165 ( 1859 )

The opinion of the Court was drawn up by

Cutting, J.

In State v. Bonney, decided in 1852, 34 Maine, 383, this Court held that, in indictments for forgery, the instrument alleged to be forged should, whenever it is practicable, “be set forth according to its tenor, and. not according to its purport and effect; that by the former mode an exact copy is intended, but by the latter the import or substance only is indicated.” And the Court further remark that, “ if the instrument be in the possession of the prisoner, or if it be lost or destroyed, or not attainable by the government, and it be so stated in the indictment, this may constitute an exception to the general rule, and be a sufficient reason for not setting out an exact copy.” And when we consider the constitutional provision, (which must be paramount to all conflicting and prior decisions,) that “in all criminal prosecutions, the accused shall have a right to demand the nature and cause of the accusation, and have a copy thereof/’ and the further fact that the prosecuting officer had the instrument in his possession, we think the rule not unreasonable in its application to the present ease.

The copy of an instrument is something certain and definite, whereas the purport and effect, as alleged, may be uncertain and indefinite, depending in a great measure upon the skill, ability or judgment of the draughtsman, and not very dissimilar, perhaps, to certain marginal notes to cases reported. Besides, who is to determine whether the purport and effect be correctly set forth ? If the original instrument be produced on the trial, according to' the rule in civil cases, it would be for the presiding Judge; but in criminal proceedings it might become a question of fact for the consideration of the jury; thus raising an issue wholly unnecessary, if the prosecuting officer had discharged his duty, and one on which the prisoner might often escape, and thus avoid his trial upon the merits. Upon this point, see the remarks of Judges Holroyd and Bayley, in Wright v. Clements, 3 Barn. & Ald., 503.

In Train & Hurd’s Precedents of Indictments, published in 1855, and, “written with exclusive reference to American jurisprudence,” page 212, the decision in State v. Bonney is fully sustained, not only by the text and the precedent, but by numerous authorities, English and American.

jDemurrer sustained,

Indictment quashed.

Tenney, C. J., and Rice, Appleton and May, JJ., concurred.