Griffen v. State

64 N.W. 966, 46 Neb. 282, 1895 Neb. LEXIS 477

• Court: Nebraska Supreme Court
• Decided: November 7, 1895
• Docket: No. 6135
• Status: Published

Opinion

Ryan, C.

At the May term of the district court of Douglas county the plaintiff in error was found guilty upon each of two counts, one of which charged him with making and counterfeiting a certain described promissory note, the other with its utterance. A thorough examination of the evidence leaves no room for doubt that the plaintiff in error counterfeited and uttered the note as charged. It has been held since the above conviction and sentence that the forgery and fraudulent uttering of a promissory note constitute but one crime, and in case of conviction that but one penalty can be inflicted. (Vide In re Walsh, 37 Neb., 454, filed June 30, 1893.) In the case under consideration the verdict of the jury responded separately, in the affimative, to the charge contained in the first and likewise in the second count. In effect there was, therefore, but a finding of guilty on two elements, both of which, taken together, constituted but one crime. In this the accused was not prejudiced. Under the holding of this court in Re Walsh, supra, there could properly be but one sentence. In the case at bar there was a sentence imposed under the first count and there was a distinct sentence under the second count. This was irregular. As the .only error found in the record was this irregularity, following Dodge v. People, 4 Neb., 220, the judgment of the district court is set aside and the cause remanded with directions to that court to render the proper judgment on the verdict heretofore returned.

Judgment accordingly.