State v. Holley

3 S.C.L. 35

• Court: Supreme Court of South Carolina
• Decided: December 15, 1800
• Status: Published

Opinions

By the court.

Present, Waties, Bat, Johnson, Rasisat, and Thezvant, Justices.

Waties

delivered the resolution of the court upon the two first points.

It is the unanimous opinion of the court upon the first and second grounds of exception taken to the indictment in this case, in .arrest of judgment, that they are insufficient for the purpose for which they have been offered. The object of the act of assembly would be completely defeated, and the act would be vain and nugatory, if the doctrine contended for, on the first ground, should be established. All the mischiefs, against which the act was provided,. might prevail without any effectual restraint. The rule or principle of construction, therefore, which has been insisted on, ought not to be admitted ; but another rule, founded on policy, and having an eye to the mischiefs the act was intended to avoid, ought to be established : viz. that every order (or warrant,) for the receipt x>f money, or delivery of goods, which is forged, and’ fraudulently passed, with a fraudulent intention, and which is so drawn, and of such a nature as to be calculated, and sufficient to effect the pup fíese' of defrauding the person en, whom th.e fraud is practised, in a case where the common prudence and .caution of a man of nary care and foiesight would not be sufficient to protect him such imposition, must be deemed, and taken', to be such a warrant oí order as the act of assembly intends. According to this principle, the court have no difficulty in deciding, that the warrant .or order* in question in the present case, is clearly within the meaning of the act of assembly; and that the conviction is.not at all affected by this exception. As to the exception to the indictment’s being charged in the disjunctive, the court concur in the .opinion, that it does not vitiate the indictment. It is not such an alternative charge as exposes the party indicted to any danger or inconvenience, and, therefore, is not liable to the objection which has been raised against it on any sound foundation of law or reason.

As to the third and last ground of exception to the indictment, the judges were all of opinion the exception was fatal, and that they judgment should be arrested, and gave their opinions,’ seriatim, 3s follows:

Grisike, J., absent.