Appeal from Circuit Court, Knott County.
Flem Messer was convicted of forgery, and he appeals.
ACTION: Reversed and Remanded
Court of Appeals of Kentucky.
MESSER
v.
COMMONWEALTH.
May 6, 1904.

BURNAM, C. J.
The appellant, Flem Messer, was convicted and sentenced to the penitentiary for a term of two years under the following indictment found against him by the grand jury of Knott county at the November term, 1903, of the Knott circuit court: "The grand jury of Knott county, in the name and by the authority of the commonwealth of Kentucky, accuse Flem Messer of the crime of forgery, committed as follows: The said defendant on the 10th day of November, 1903, in the county and circuit aforesaid, did unlawfully, willfully, maliciously, and feloniously forge William Roberts' name as presiding judge of the Knott county court, to an order directed to J. H. Amburgey, who was then clerk of the Knott county court, directing said Amburgey to issue to said Messer a land warrant for one hundred acres of land; also forging said Roberts' name, as judge of the Knott county court, to a receipt for $5 in payment for the above-mentioned land warrant; he, the said defendant, uttering and publishing same to be true, when in fact each and both of said instruments were forgeries and fraudulent, and were so known to be by the defendant at the time, and the same was done for the purpose of perpetrating a fraud against the said Roberts and the commonwealth of Kentucky, against the peace and dignity of the commonwealth of Kentucky."

The defendant is charged in this indictment with three separate and distinct offenses:

First, for forging the name of William Roberts, as presiding judge of the Knott county court, to an order directing Amburgey, who was then clerk of the Knott county court, to issue to defendant a land warrant for 100 acres of land;

Second, with forging Roberts' name to a receipt for $5 in payment for the land warrant;

Third, with uttering and publishing as true each and both of these instruments.

The instructions given to the jury closely follow the indictment, and authorize the conviction of defendant if the jury believe, beyond a reasonable doubt, that he was guilty of either of these separate offenses. They are as follows:

"Instruction No. 1. The court says to the jury that if they believe and find from the evidence, beyond a reasonable doubt, that the defendant, Flem Messer, in Knott county, Kentucky, and before the finding of the indictment herein, forged the name of William Roberts, as presiding judge of the Knott county court, to an order directed to J. H. Amburgey, clerk of the Knott county court, to issue a land warrant to the said Flem Messer for one hundred acres of land, of date July 29, 1903, they will find him guilty, and fix his punishment at confinement in the State Penitentiary at hard labor for a period of years, so it be not less than two nor more than ten years, in the discretion of the jury.

"Instruction No. 2. The court says to the jury that if they believe from the evidence, beyond a reasonable doubt, that the defendant, Flem Messer, in Knott county, Kentucky, and before the finding of the indictment, forged the name of William Roberts, as presiding judge of the Knott county court, to a receipt for $5 for a land warrant for one hundred acres of land in Knott county, Kentucky, they will find him guilty, and fix his punishment by confinement in the State Penitentiary for any period of time, so it be not less than two nor more than ten years, in the discretion of the jury.

"Instruction No. 3. The court says to the jury that if they believe from the evidence, beyond a reasonable doubt, that the defendant, Flem Messer, in Knott county, Kentucky, and before the finding of the indictment herein, knowingly uttered and published as true and genuine the order and receipt referred to in instructions 1 and 2, knowing at the same time that said order and receipt were forged, they will find him guilty, and fix his punishment by confinement in the State Penitentiary for any period of years at hard labor, so it be not less than two years nor more than ten, in their discretion."

"An indictment must charge but one offense, but if it may have been committed in different modes and by different means, the indictment may allege the modes and means in the alternative." While counsel for the state does not deny that forgery and uttering a forged instrument are separate and distinct offenses, and cannot properly be joined in an indictment, and it has been so decided by this court, the defendant was not prejudiced by the instructions given to the jury, authorizing them to find him guilty if they believed he either forged or uttered the order or receipt. It has been held by this court in numerous cases that an indictment must name the offense charged, and that a conviction could be had only for the offense named. The demurrer to the indictment in this case should have been sustained, or the commonwealth required to elect which of the offenses named in the indictment it would prosecute.

For reasons indicated, the judgment is reversed and the cause remanded for proceedings consistent with this opinion.



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