State v. Haven
STATE v. JOEL M. HAVEN
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Opinion of the Court
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The opinion of the court was delivered by Rowell, J.
The first and ' the fifth counts are bad for argumentativeness. They allege that Alead did not own nor have standing in his name and v?as not entitled to any share or shares of the capital stock of said company, which is but an argumentative way of saying that he did not own and was' not entitled to the shares of stock purporting to be conveyed to *405 him by said certificate. Thus, in trespass for breaking and entering the plaintiff’s close, and subverting the soil thereof, and digging and boring the same, the defendant pleaded seisin in fee in the Duke of Northumberland of the manor of Tyne-mouth, of which the closes in question had immemorially been parcel and copyhold tenements, and that by reason thereof the Duke was seised in fee of all the veins and seams of coal lying within and under the copyhold tenements of said manor, together with the liberty of boring for, digging for, and getting such veins and seams of coal there, and of doing all things necessary for that purpose. The plaintiff replied that as well the said veins and seams of coal as the rest of the soil and ground within and under said closes had from time immemorial been parcel of said manor, and demised and demiseable by copy of court-roll, without any exception or reservation of the mines or seams of coal within and under said closes, etc.; to which the defendant demurred, for that the replications did not directly traverse nor confess and avoid any of the matters alleged in the pleas, but were argumentative and not issuable; and 'the court, construing the pleas to claim a liberty during the continuance of the copyhold estate, said that it required no argument to show that a replication that the copyholds had always been demised without any exception or reservation of the mines or seams of coal, was not a confession of the liberty and an avoidance of it, but was a mere argumentative denial of its existence, and that the replications were bad on that ground. Bourne v. Taylor, 10 East, 189.
So, too, if in trespass for carrying away goods, the defendant should plead that the plaintiff, never had any goods, that would be argumentatively saying not guilty, and so no plea, although the argument would be infallible. Dyer, 43a; Steph. Pl. 385.
The second and the sixth counts are bad for duplicity. Under the statute, the act of signing a false certificate with intent that it shall be issued and used'is of itself an offense, and causing it to be issued and used is another and distinct offense. *406 Nor can they both be committed by the same act, but only by separate and distinct acts, though they may be committed on the same occasion.
When a crime may be committed in different ways, in contemplation of law the ways are the same act, and so a count charging its commission in all the ways is not double. State v. Morton, 27 Vt. 30 , and State v. Mathews, 42 Vt. 542 , are cases of this character. See People v. Davis, 56 N. Y. 95 .
In Commonwealth v. Eaton, 15 Pick. 273 , the prisoner was charged in one count with both offering for sale and selling half of a lottery ticket; and the count was held to charge but one offense, on the ground that a sale includes an offer to sell, the same as a battery includes an assault. And in Commonwealth v. Twitchell, 4 Cush. 74 , a count charging both the setting up and the promotion of a certain prohibited exhibition was held good on the same ground.
.Indeed no matters, however multifarious, will operate to make a count double if they constitute but one connected charge or transaction, provided that in no view can they be regarded as more than one offense. But if they can be so regarded, the count will be double. 1 Bishop Crim. Proced. s. 193.
Applying these principles, these counts are clearly double.
The third and fourth counts each allege that the respondent as treasurer caused to be issued to Mead a false and fraudulent certificate of the ownership of one thousand shares of the capital stock of the company, the said certificate falsely certifying and purporting that said Mead was then and there the owner of one thousand shares of said capital stock. They then go on to allege that said certificate was then and there signed in blank by Page as president and by the respondent as treasurer, and that it was — without saying when — and is of the following tenor, setting it out.
Now a blank certificate cannot certify nor purport ownership nor have a tenor, as alleged, and so the allegations are inconsistent and repugnant; and as the allegation of signing is ma *407 terial and cannot be rejected as'surplusage, as then it would not appear that the certificate was signed at all when issued, the counts are bad.
Thus, an indictment charging the respondent with having forged an instrument whereby one person is bound to another, is bad for repugnancy; for a forged instrument can bind nobody.
So in trespass, declaring for taking and carrying away timber lying in a certain place for the completion of a house ‘ ‘ then lately ” built, is bad ; for the timber could not be for a house already built. Nevil v. Soper, 1 Salk. 213.
So a count in assumpsit, declaring on a- promise to pay a sum certain if the plaintiff would provide another with necessaries, and also on a promise to pay as much as the plaintiff reasonably deserved to have on the same account, is both double and repugnant. 1 Chit. Pl. 231.
Exceptions sustained, indictment adjudged insufficient and quashed, and respondent discharged.
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