The Commonwealth against George Wythe Swinney

Page 146 from Judge Brokenbrough's and Holmes' A Collection of Cases Decided by the General Court of Virginia (1815).

On May 25, 1806, George Wythe suffered a mysterious illness, with suspicion later pointing to his having been poisoned by his sister's grandson, George Wythe Sweeney. Two days later, on May 27th, Sweeney went to the Bank of Virginia in Richmond, where George Wythe had an account, and using a forged letter attempted to withdraw $100 from Wythe's account. The bank gave Sweeney a promissory note for $100.00, a bank-backed promise to pay the amount to the bearer on demand. Sweeney was later arrested in September of 1806 for forgery charges relating to this event. Prominent attorneys William Wirt and Edmund Randolph represented Sweeney at trial for murder and forgery. The forgery trials are reported by Judges Brockenbrough and Holmes, in A Collection of Cases Decided by the General Court of Virginia (1815).

In the first case Sweeney was convicted of two counts of forgery, but judgment could not proceed for two reasons: first, the statute governed only the taking of money from individuals, and the Bank of Virginia was not an individual; and second, because the statute only governed against taking money, and the note Sweeney received was not technically money but instead a promise to give money later.

A second case was brought against Sweeney for fraudulently obtaining, through a falsified note, fifty dollars from the bank in George Wythe's name. Sweeney was convicted and attempted to arrest the judgment using the same arguments as the first case. The District Court granted the arrest of judgment, but the General Court disagreed and overturned the arrest, remanding back to the District Court for execution of Sweeney's sentence. However, for reasons unknown today, the District Court refused to execute the judgment and granted a second trial, which the Commonwealth declined to prosecute the case.

The results of the murder and forgery trials were published in the Richmond Enquirer September 9, and in the Virginia Argus on September 10, 1806. Sweeney's ultimate fate after the trials is uncertain.

Document text, 1815

Page 146

The Commonwealth against George Wythe
Swinney.

THE defendant was indicted at the District Court of Richmond, in September 1806, for a misdemesnor in fraudulently obtaining from the bank of Virginia a bank note of one hundred dollars. The indictment consisted of two counts. The first charged that he did apply at the bank of Virginia, and did falsely pretend and affirm that he was authorized and directed by George Wythe to apply to the cashier of the said bank for the sum of one hundred dollars, for the use of the said George Wythe, the said G. W. having money to a greater amount deposited there, and that the defendant a certain false and counterfeit letter partly written and partly printed in the name of the said G. W., as a true letter of the said G. W. falsely and fraudulently did deliver to a certain W. D. teller of the said bank &c., by which said false and counterfeit letter it was mentioned, that the said G. W. directed the cashier of the bank of Virginia to pay to himself or bearer, one hundred dollars; and the said W. D. then and there believing the said counterfeit letter to be he true letter of the said G. W. and the signature to the said letter, and the writing in the body of the letter, to be the hand-writing of the said G. W., did then and

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there pay and deliver to the said G. W. Swinney, one hundred dollars in a note of the bank of Virginia, whereas in fact and truth G. W. never did write or send, or cause to be written or sent, the letter aforesaid to the said cashier, &c. And so the jurors, &c. do say that the said G. W. Swinney on the said 27th day of May, 1806, by colour of the said counterfeit letter, and by the said false pretences, unlawful, falsely, fruadulently and deceitfully did obtain and get into his hands and possession, of and from the said W. D. teller, &c. the said sum of one hundred dollars, in the said note of the said bank, of the goods and chattels and monies of the president, directors and company of the said bank of Virginia, &c. &c. contra formam statute, et contra pacem et dignitatem, &c.

The second count was exactly like the first, except that the writing by which the note of one hundred dollars was charged to have been obtained was described as a false, feigned and counterfeit token, &c. to the similitude and likeness of a true check or order of him the said G. W. &c."

The prisoner was found guilty by the jury, whereupon he moved to arrest the judgment, for the following reasons: "Because the offence is not within the statute under which the indictment is laid, inasmuch as,

1st. The statute which was passed on the 18th No-

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vember, 1789, (See Rev. Co. Vol. 1st, p. 45.) was intended to punish a pre-existing evil, which is represented as having become common, and which is minutely described in the preamble to the statute, to wit, ‘the falsely and deceitfully contriving, devising, and imagining, privy tokens and counterfeit letters, in other men's names, unto divers persons, their particular friends and acquaintances,' whereas banks were not introduced into this commonwealth, until many years after the said 18th November, 1789, and therefore could not have been within the contemplation, any more than they are within the language of the statute. In like manner the 33 Henry 8, ch. 1. (of which our statute is a copy) was enacted more than a century and "a half before the existence of a bank in England.

2d. The phraseology of the statute precludes the possibility of its application to banks: the terms 'divers persons, their particular friends and acquaintances,' can relate only to private individuals, not to a body corporate, an ideal body. The bank of Virginia is no more a person, than the commonwealth of Virginia; much less is it the particular friend and acquaintance of any one.

3d. The statute requires that the person who shall be punished under it, shall have gotten into his posses-

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sion the money, or goods of another: whereas, the defendant is charged with having gotten possession of a note of the bank of Virginia, which is neither the money or goods of the said George Wythe, because having been delivered under a check not drawn by him, the bank hath no right to charge it to his account: neither is it the money, or goods of the bank: but simply the promissory note of the bank for the future payment of money, and as to all legal purposes, merely on a footing with the promissory note of an individual."

The question arising from these reasons in arrest, was adjourned to the general court.

November 17th, 1806. The court, consisting of Judges Tyler, White, Carrington, Stuart, Brooke and Holmes, decided that "judgment on the verdict in the record mentioned ought to be arrested."

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Second case against Swinney.

THERE was another indictment against the said defendant, founded on the said act of assembly, for fraudulently obtaining from the bank, on the 11th April, 1806, by means of a counterfeit letter or privy token, the sum of fifty dollars. The indictment consisted of two counts, and was exactly like the indictment in the first case above mentioned, except that in this case the defendant was charged with having obtained, by the means before mentioned, fifty dollars in money current in the said Commonwealth of Virginia.”

The defendant was found guilty on this indictment also, and the same reasons were assigned in arrest of judgment as in the other case. The case was also adjourned.

The general court, composed of the same judges as in the last case, and on the same day, decided that the errors aforesaid are not good and sufficient in law, and that judgment, on the verdict in the record in the said case mentioned, ought to be rendered by the district court.

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Note. The two cases taken together, shew that the two first reasons were overruled by the court: the third reason was deemed sufficient to arrest the judgment in the first mentioned case, on the ground (it is presumed) that the obtaining of a bank note, as charged in the indictment, is not the obtaining of "money" in the sense in which it is used in the act; on the contrary, it was deemed insufficient to arrest the second judgment, because it did not apply, the defendant having been charged in the indictment with obtaining fifty dollars in money "current, &c." which could not be intended to mean a bank note of that amount.

See also

• Examinations of George Wythe Swinney for Forgery and Murder