indictment for forgery, signifies the substance of an instrument as it appears on the face of it: tenor means an exact copy of it.(p)

By a decision of the supreme court of this state made since the passage of the revised statutes, it is settled that in an indictment for forging a check on a bank, it is sufficient to allege that the prisoner falsely made, forged and counterfeited a certain check, with intention to defraud, &c. setting forth the check in hæc verba, with the name of the drawer as appearing upon it. And it is not necessary to allege, in the words of the statute, that it was an instrument or writing, being or purporting to be the act of another, by which a pecuniary demand or obligation is or purports to be created, &c. or by which rights or property are or purport to be transferred, &c. or in any manner affected. Nor is it necessary to aver that by such forgery any person is bound, or in any way injured in his person or property.(q) It would be as well in point of form, in such a case, to charge in the indictment that the accused forged a certain paper writing purporting to be an instrument in writing and the act of the party whose name is subscribed to it, by which a pecuniary demand is or purports to be created, and then to set forth the instrument or writing in hæc verba.(r)

This case also establishes the point that an indictment under the revised statutes is not vitiated by pursuing the forms under the old statute, in charging that the prisoner made, forged and counterfeited, and caused or procured to be falsely made, forged and counterfeited, and willingly assisted in the false making, &c.; the latter charges being mere surplusage.($)

An indictment is good if in it be set forth the instrument or writing alleged to have been forged, averring it to have been falsely made with the intent to injure or defraud some person or body corporate; provided the instrument be such as, on its face, to show that the rights or property of such person or body may thereby be affected. It is not necessary that the facts and circumstances of the case showing the intent should be specially set forth in the indictment. It is enough that they be given in evidence on the trial.(t)

It can never be necessary to state both the purport and tenor; that is to say, that the instrument purports to be drawn so and so, and is of the tenor following; and if in this superfluity of statement a mistake should arise, the indictment will be vicious. For instance; where a person was

1 East's P. C. 180. Leach, 753. (9) 12 Wend. 425, People v. Rynders.

(s) Id. ib.
(t) 21 Wend. 409.

Id. ib.

indicted for forging an acceptance on a certain bill of exchange purporting to be directed to one J. K. by the name and description of J. R. Esq. after which the tenor of the bill was set forth, from which it appeared that it was really directed to J. R. and the forged acceptance was made in the name of J. K.; the indictment was holden bad on the ground that the name of one person or thing cannot purport to be another.(u)

If the instrument forged does not itself appear to be such an one as the act respecting the offence recognizes, though in effect it amounts to the same, an averment of the fact must be introduced; and it must thus be shown on the record that the case is within the statute on which it is framed, or it will not suffice to prove it, however clearly, in evidence. (v) But extrinsic facts are not necessary to be stated except when the operation of the instrument upon the rights or property of another is not manifest or probable from the face of the writing.(w)

The intent to defraud is essential to the offence, and must therefore be charged in the indictment, and proved. (x) And the averment of an intent to defraud must be pointed at the particular person or persons against whom it is meditated. (y)

Where the intent mentioned in the statute is to defraud any particular corporation, &c., it must of course be so laid in the indictment. But where the intent is described generally, to defraud any person or persons, it is said by Mr. Archbold to be prudent, in the indictment, to charge the offence, in different counts, to have been committed with intent to defraud each of the persons, partnerships, or corporations that might have been defrauded by it if the forgery had succeeded. (2) In a late case where the defendant was indicted for forging a request from the cashier of a bank in Kentucky to the cashier of a bank in New-York to deliver to engravers the plates of the bank, it was held that it was not necessary to aver in the indictment that the Bank of Kentucky was a corporation duly created; but that it was enough to allege that the instrument set forth was falsely made, with the intent to injure and defraud the bank; and that under such allegation an exemplification of the act of incorporation was admissible in evidence.(a)

It seems that the uttering here of a counterfeit foreign bank bill, the circulation of which is made illegal by statute, would be deemed an offence within our statute if laid to have been done with the intent to de

(u) 2 Leach, 590.

(x) Roscoe's Cr. Ev. 400. 3 Chit. Cr.

(v) 3 Chit. Cr. L. 1041. Arch. Cr. Pl. L. 1042, note B.

(y) 2 East's P. C. 988.
(z) Arch. Cr. Pl. 288.
(a) 21 Wend. 409.

fraud the bank; though the indictment would be bad if the bill was laid to have been passed with the intent to defraud the receiver of the bill.(b) In the statement of the names of the parties defrauded, the same rules apply which govern other offences. Certainty to a common intent is sufficient.(c)

If the instrument forged be in a foreign language, there must be an English translation of it, in the indictment. (d)

The state courts have jurisdiction to punish the uttering and publishing counterfeit bills of the Bank of the United States, as well as of other counterfeits of the currency of the states. (e)

In indictments for forgery it is usual and prudent to add a second count for knowingly uttering the forged instruments, lest the prosecutor should fail in proof of the actual forgery.(ƒ)

The conclusion of the indictment should be against the peace, &c., and contrary to the form of the statute.(g)

The venue in indictments for forgery must be laid in the county where the offence is committed; as the indictment can only be preferred and trial had in that county. Thus, where a note with forged endorsements is sent by the defendant per mail from one county to an individual in another county for the purpose of obtaining credit upon it, the proper place of trial is the county to which the note was sent; the offence not being consummated until the note is received by the person to whom the note was transmitted. (h)

The fact of forging a note within a particular county cannot be inferred from its having been uttered there.(i)

By the revised statutes it is provided that the indictment may contain counts for the different degrees of forgery or for any of them.(k)

10th. Evidence.] The evidence in forgery must support the material facts stated in the indictment; and, as we have before remarked, it is essentially necessary that the proof should tally with the averment of the intent to defraud.

As to who may be witnesses in cases of forgery, the rule is established in this state, that the person whose name has been forged is a competent witness, on the trial of an indictment, to prove the forgery. (1) And he is considered the best, but not the only competent witness, to prove

(b) 21 Wend 509.

(c) 3 Chit. Cr. L. 1042.

(d) 2 Russ. on Cr. 360.

(e) 2 Baily's Rep. 44. 1 Blackf. Rep.

198.

(f) Arch. Cr. Pl. 289.

(g) 3 Chit. Cr. L. 1042, a.

(h) 21 Wend. 509.

(i) 5 Pick. 279.

(k) 2 R. S. 728, § 51.

(1) People v. Dean, 6 Cowen, 27. 4 John. 302.

the offence. (m) Thus, in cases of forgery of bank notes, where the officers of the bank, whose names are forged, are not within the process of the court, the testimony of other witnesses who have a general knowledge of the signatures of such officers, is admissible. (n)

Proof of the act of forgery.] It is seldom that direct evidence can be given of the act of forgery. In the case of negotiable securities, the evidence is usually applied to the uttering rather than to the forging; although both are generally charged. Where the instrument is not of a negotiable nature, as in the case of a bond or will, after proof that it has been forged by some one, a strong presumption necessarily arises against the party in whose favor the forgery is made, or who has the possession of it, and seeks to derive benefit from it. Evidence that the forged instrument is in the hand-writing of the prisoner, must, if unexplained, be necessarily strong evidence of his guilt.(0)

In the description of the act of forging, it will not, in general, be a material variance, if words are added which are not in the statute. Thus, an indictment on the 11 Geo. 4, and 1 W. 4, c. 66, which statute only uses the word forge, was held good, though the words "forged and counterfeited” were employed in the indictment, and that the word "counterfeited" might be rejected.(p)

Proof of the altering of a part of a genuine instrument will support an indictment charging the defendant with having forged the instrument itself. As where the indictment charged the defendant with having forged and counterfeited a bill of exchange, it was held that evidence of his having altered the bill from ten pounds to fifty, supported the indictment; even although the statute on which the indictment was framed contained the word "alter" as well as the word "forge."(q) It is more usual, however, and perhaps more prudent, at least in one set of counts to charge it as an alteration merely, and to allege the alteration specially. But there is no doubt that the slightest alteration of a genuine instrument, in a material part, whereby a new operation is given to it, is a forgery.(r)

But where the forgery is of a mere addition to the instrument, and which has not the effect of altering it, but is merely collateral to it; as, for instance, a forged acceptance or endorsement to a genuine bill of exchange; proof of the forgery of the addition will not support an in

(m) 2 Russ. on Cr. 378.

(n) 2 Pick. 50. 6 Serg. & Rawle, 568. 2 N. Hamp. R. 480. 2 Stark. Ev. 585, n. (b). 3 Chit. Cr. L. 1044, n. A.

(0) Roscoe's Cr. Ev. 396. 2 Stark. Ev. 331, 2d ed.

(p) Id. ib. 6 Car. & Payne, 363.
(q) 2 East's P. C. 979.

(r) Arch. Cr. Pl. 289.

dictment charging the forgery of the entire instrument. The forgery of such addition must be specially alleged, and must be proved as laid.(s) Forging the signature of the drawer to a bill of exchange, is the same precisely as forging the entire bill, and may be laid as such.(t)

On a charge of uttering and publishing a promissory note with the names of several persons upon it as endorsers, all which endorsements are alleged to be forged, it is not necessary, for the purpose of sustaining the indictment, to prove all the endorsements to be forgeries. It is enough that one or more are shown to be such. (u)

Proof of the uttering.] By our statute a distinction is made between uttering and offering forged instruments. The section which relates to uttering, uses only the words "uttering and publishing as true;" and undoubtedly contemplates a completion of the act, or the carrying into full effect the fraudulent intention. Whereas, the "offering for sale, exchange or delivery," any forged instrument, is provided for in another section, and punished in a different manner. (v) The indictment, therefore, should contain separate counts for "offering" and for "uttering." Under the first mentioned count, the prosecutor may give in evidence that the defendant offered to sell, exchange or deliver the counterfeit instrument for any consideration whatever; and under the second, that he actually passed it, or uttered and published it as true. And whenever there is any reason to doubt whether the uttering can be proved, it will be safer to add a count for the "offering" merely. Thus, where the prisoner was indicted for uttering counterfeit coin, and the proof was that he took the coin to the house of a certain woman, who had agreed to take it at a certain rate, and, while engaged in counting the coin, they were interrupted by the officers, before she could pay for those she had selected, it was held that it was not a case of uttering, and the prisoner was acquitted. (w)

Upon an indictment for uttering, the prosecutor must prove the act of uttering, &c. as charged; that the money or instrument was counterfeit, and that the prisoner knew it to be such. (x) And the intent to defraud must also be proved.

It seems that the mere showing of a false instrument, with intent there. by to gain credit, is not an offence within the statutes against forgery.(y) Proof of uttering a forged acceptance will not support an indictment charging the prisoner with uttering a forged bill.(z)

(s) Russ. & Ry. C. C. 251.

(t) 1 Leach, 57.

(u) 21 Wend. 509.

(v) 2 R. S. 674, §§ 39, 40; 672, § 32, sub. 2.

(w) 1 Leach, 307.

(x) Roscoe's Cr. Ev. 300.

(y) Idem, 398.

(z) 6 Car. & P. 148.