to defraud. McGuire v. State, 39 Ala. 161; s. c., I Ala. Sel. Cas. 69.

Where, in an indictment for forgery, the document alleged to have been forged is described in such a manner as would sustain an indictment for stealing it, supposing it to be the subject of larceny, the indictment is sufficient. Coleman v. Com., 25 Gratt. (Va.) 865; s. c., 23 Am. Dec.

711.

Same-Indorsement. - Indictment for gery of promissory note need not set out the indorsements or any other matter written upon the same paper constituting any part of the note itself and not entering into the essential description of the instrument. Perkins v. Com., 7 Gratt. (Va.) 651; s. c., 56 Am. Dec. 123.

1. State v. Potts, 8 N. J. L. (4 Halst.) 26; s. c., 17 Am. Dec. 449.

While it is true that the want of a more full description must be excused by proper averments, yet this is a rule of pleading, not of evidence, to prevent an exception to the indictment, not to legitimate secondary or inferior evidence. Com. v. Houghton, 8 Mass. 107; State v. Potts, 9 N. J. L. (4 Halst.) 26; s. c., 14 Am. Dec. 449: People v. Kingsley, 2 Cow. (N. Y.) 522: s. c., 14 Am. Dec. 520.

Uncertain or Equivocal Description. Where the indictment describes the lost note as purporting to be signed by one Henry Wintrode or Henry R. Wintrode," such description is not uncertain or equivocal. Hess v. State, 73 Ind. 537

Where the Document is Lost or Destroyed, or Remains in the Defendant's Hands, it is sufficient to aver special facts as an excuse for not setting it out, giving the purport of the instrument as nearly as possible. Du Bois v. State, 50 Ala. 139; People v. Bogart, 36 Cal. 245; Wallace v. People, 27 Ill. 45; Hart v. State, 55 Ind. 599; State v. Bonney, 34 Me. 223; Com. v. Sawtelle, 65 Mass. (11 Cush.) 142; State v. Davis, 69 N. C. 313; Pendleton v. Com., 4 Leigh (Va ), 694; s. c., 26 Am. Dec. 342; United States v. Britton, 2 Mason C. C. 468; Rex v. Haworth, 4 Car. & P. 254.

Paper Partly Burned. In an indictment for forgery, where the forged paper had been partly burned and blotted, held, that the substance only need be stated, although parol evidence could have supplied the missing part. Munson v. State, 79 Ind. 541.

Lost Instrument-Showing Search.-It is not necessary, in an indictment for forgery where the instrument forged is alleged to be lost, to show that search therefor had been made by the parties to whom it was uttered. Hess v. State, 73 Ind. 537

Lost Note.-On an indictment for forging a promissory note, if the note be lost or destroyed, it is sufficient to set forth the substance of it, averring the loss or destruction. People v. Badgley, 15 Wend. (N. Y.) 53; People v. Kingsley, 2 Cow. (N. Y.) 522.

An indictment for forgery setting forth the counterfeit note according to its tenor, need not aver the loss or destruction of such note; and upon proof of its mutilation or destruction by defendant, other proof of its contents may be admitted in evidence. State v. Potts, 9 N. J. L. (4 Halst.) 26; s. c., 17 Am. Dec. 450.

Forged Certificates.-An indictment for forgery alleging that the defendant “did make, forge, and counterfeit certain certificates purporting to be a certificate issued by B as justice of the peace," etc., which said false certificate is of the purport and effect following, to wit, etc., and then setting forth a copy of the certificate, is not insufficient as alleging only the purport and effect of the forged instrument. State v. Johnson, 26 Iowa, 407.

An Indictment for Possessing Forged Treasury Notes and postal currency, with intent to pass them, must profess to give, and must actually give, exact copies of them, or allege a reasonable excuse for not doing so. United States v. Fisler, 4 Biss. C. C. 59.

2. State v. Parker, 1 D. Chip. (Vt.) 298; s. c., 6 Am. Dec. 735. However, under statute in some States the instrument need not be set out in the indictment. Cohen v People, 7 Colo. 274; State v. Boasse, 38 La. An. 202; State v. Henderson, 29 W. Va. 147.

Setting Out Note.-If the counterfeit note, which it is charged the prisoner had in his possession, is set forth in hec verba, it is unnecessary to allege, in addition, that the note purported to be the act of another. Wilson v. People, 5 Park. Cr. Cas. (N. Y.) 178.

Forged Mortgage-Allegation of Sealing. Whether an indictment for forgery which sets out the forged instrument, e. g., a mortgage in hæc verba, but omits

to allege that the instrument was a sealed instrument, is sufficient to sustain an indictment for forgery of a mortgage upon lands, is questioned in People v. Dewey, 35 Hun (N. Y.), 308. The court cited Phelps v. People, 72 N. Y. 334; People v. Harrison, 8 Barb. N. Y.) 560. 562; Stanton v. Camp, 4 Barb. (N. Y.) 274; Cunningham v. People, 4 Hun (N. Y.), 455; Macomb v. Thompson, 14 Johns. (N. Y.) 207: Van Santwood v. Sandford, 12 Johns. N. Y. 197; Paige v. People, 6 Park. Cr. Cas. (N. Y.) 422; People v. Galloway, 17 Wend. (N. Y.) 542.

Annexing Notes to Indictment.-In an indictment for the forgery of bank notes, if the notes are annexed to the indictment instead of being set forth in it, the irregularity is cured, after verdict against the prisoner, by the Statute of Jeofails. Com. v. Ervin, 2 Va. Cas. 337.

Alleging Name.-In an indictment for forgery it is not necessary to expressly allege that the name charged to have been forged was affixed to the forged instrument, when the latter was set forth acccording to its tenor, and shows such to be the fact. State v. Yerger, 85 Mo. 33. Setting Out in Verbis Ipsis.—An indictment which alleges that defendant falsely made, forged, and counterfeited an instrument, within the description of the statute, and in which the instrument so alleged to be forged is set out in verbis ipsis, contains a sufficient description of the circumstances within the statute. So held where the instrument was a deed purporting to be signed by defendant and his wife. Holmes v. People, 15 Abb. (N. Y.) Pr. 154.

Indictment for Forgery of School OrderFulness and Certainty Required.-While it is not necessary, in an indictment for passing a fictitious school order, after setting out the order in substance, to give it in hæc verba, yet, if the pleader attempts to do so, he will be bound to set out each and every part of the instrument which constitutes any part of the written contract. Anything appearing on the paper constituting the order, which is no part of the contract, may be omitted in setting out the instrument in hæc verba.

So, the number of the bill alleged to have been forged, and the figures on its margin, and the dollar-mark and figures indicating the amount of dollars on the margin of an order need not be given. Com. v. Bailey, I Mass. 62; s. c., 2 Am. Dec. 63, is an authority in point. There, in an indictment for forgery, alleging an instrument to be in the words and figures following, it was held that a strict recital was necessary; but the number of a bill need not be set out in the indictment. The same rule is announced in Com. v. Stevens, 1 Mass. 203, and in Griffin v. State, 14 Ohio St. 54. See also Com. v. Wilson, 68 Mass. (2 Gray) 70; Com. v. Taylor, 59 Mass. (5 Cush.) 605; State v. Carr, 5 N. H. 367. Where the words used in the body of a note or order for the payment of money are ambiguous, so that there is uncertainty in regard to the true amount that was intended, resort may be had to the figures in the margin of the instru ment for the purpose of determining the true amount agreed to be paid, as held in Riley v. Dickens, 19 Ill. 29, and Corgan v. Frew, 39 Ill. 31; but the figures in the margin of an instrument are not strictly a part of the contract. They cannot be reverted to impeach the amount named in the body of the paper, and are never resorted to for any purpose, unless there is uncertainty in regard to the amount written in the body of the instrument. Langdale v. State, 100 Ill. 263; s. c., 25 Alb. L. J. 159.

1. People v Ah Woo, 28 Cal. 205.

Technical Designation-Several Names. -Where the instrument is designated by several names, one of which is correct, those which are incorrect may be rejected as surplusage. See State v. Crawford, 13 La. An. 300; Reg. 7 Charretie, 3 Cox C. C. 503; Reg. v. Willlams, 2 Den. C. C. 61; s. c., I T. & M. C. C. 381; 4 Cox C. C. 356; 2 Eng. L. & Eq. 533; Reg. v. Newton, 2 Moo. C. C. 59.

2. United States v. Trout, 4 Biss. C. C. 105; Reg. v. Hunter, Russ. & R. C. C. 511; Reg. v. Birkett, Russ. & R. 251.

3. Wallace v. People, 27 Ill. 45; Swain v. People 5 Ill. (4 Scam.) 178; State v

Cook, 52 Ind. 574: State v. Witham, 47 Me. 165; State v. Bonney. 34 Me. 383; Com. v. Castles, 75 Mass. (9 Gray) 123; s. c., 69 Am. Dec. 278; State v. Potts, 9 N. J. L. (4 Halst.) 26; s. c.. 17 Am. Dec. 449; People v. Badgley, 16 Wend. (N. Y.) 53; State v. Twitty, 2 Hawks (N. C.) L. 248; State v. Harris, 5 Ired. (N. C.) L. 287; McMillen v. State, 5 Ohio, 268; Stephens v. State, Wright (Ohio), 73; United States v. Britton, 2 Mason C. C. 464.

It is not enough, in an indictment for forgery, to set out the forged instrument in substance and effect, when it can be set out in hæc verba equally well. Thomas 2. State, 18 Tex. App. 213; Smith v. State, 8 Tex. App. 399.

1. Brown v. People, 66 Ill. 344: State v. Nelson, 28 La. An. 46; State v. Pons, 28 La. An. 43.

2. Thomas v. State, 103 Ind. 219; Powers v. State, 87 Ind. 97; State v. Pease. 74 Ind. 263; Plunket v. State, 69 Ind. 70; Rooker v. State, 65 Ind. 86; Sharley v. State, 54 Ind. 168; s. c., 2 Am. Crim. Rep. 138; Smith v. State, 33 Ind. 159; Porter v. State, 15 Ind. 433; Zellers v. State, 7 Ind. 659; Com. v. Clancy, 89 Mass. (7 Allen) 537; Com. v. Wilson, 68 Mass. (2 Gray) 70; People v. Marion, 29 Mich. 31; s. c., 28 Mich. 255; State v. Maupin, 57 Mo. 205; Haslip v. State, 10 Neb. 590; State v. Horan (N. H.), 15 Atl. Rep. 20; State v. Farrand, 8 N. J. L. (3 Halst.) 333; Wilson v. People, 5 Park. Cr. Cas. (N. Y.) 178; State v. Street, Tayl. (N. C.) 158: s. c., I Am. Dec 589; Hart v. State, 20 Ohio, 49; State v. Houseal, 3 Brev. (S. C.) L. 219; State v. Jones, 1 McMull. (S. C.) L. 236; s. c., 36 Am. Dec. 257: Luttrell v. State, 85 Tenn. 232; State v. Shawley, 5 Hayw. (Tenn.) 256; Westbrook v. State, 23 Tex. App. 401; Ex parte Rogers, 10 Tex. App. 655: Murphy v. State, 6 Tex. App. 554; Roberts v. State, 2 Tex. App. 41; State v. Bean, 19 Vt. 530; Burress 7. Com.. 27 Gratt. (Va.)934; United States v. Britton, 2 Mason C. C. 464.

Thus, where the indictment charges the defendant with forging an instrument purporting to be signed A., and sets out an instrument purporting to be signed by B., it is bad on demurrer for repugnancy. State v. Horan (N. H.). 15 Atl. Rep. 20. But where an indictment charged that A did feloniously

and fraudulently forge and make a certain note obligatory in the name of B, the tenor of which writing obligatory is as follows: that is to say, etc. The instrument set out purported on its face to be executed by B and A, the defendant. Held, that there was no repugnance in the charge in the indictment. Fogg v. State, 9 Yerg. (Tenn.) 392. And where an indictment alleges the forged instrument to have been a check on a city bank of Dallas, but sets it out as a check on the city bank, it is fatally defective. See Roberts v. State, 2 Tex. App. 4. An indictment for forging a writing described the same by saying "purporting to be signed by the president and directors," and set out the forged writing verbatim, upon the face of which it did not appear to have been by order of the president and directors, is held fatally defective. State v. Shawley, 5 Hayw. (Tenn.) 256.

Variance in Name.-An indictment was for forgery of a bill of a bank incorporated as "The President and Directors of the Bank of South Carolina." The bill produced in evidence was of "The Bank of South Carolina." Held, that the evidence did not support the indictment. State v. Waters, 1 Treadw. (S. C.) Const. 669; s. c., 3 Brev. (S. C.) L. 507.

An indictment charging forgery of an order, set out in hæc verba, and signed "Candle Oulal," held not to be sustained by proof that the property belonged to Daniel Aerl. Potter v. State, 9 Tex. App. 55.

Same in Spelling of Name.--Variance between the order as alleged in an indictment for forging an order for goods, and the other as produced on the trial, in the spelling of the name alleged to have been forged as the signature, held fatal. McClellan v. State, 32 Ark. 609.

Same-Transposing Initials.-An allegation in an indictment for forgery that the suit was against "C. A. Cobbs,' held not to be supported by evidence that the suit was against "C. A. Cobb." The proceedings must be accurately iden tified. Jacobs v. State, 61 Ala. 448.

Reversing Order of Names.--But on a trial of an indictment for forging an order, "Dulks & Helker-You will please pay to the boy $3.00 in merchandise, and oblige J. B. Runkins," it was proved that the true name of the alleged was J. B.

Rankin, and of the drawee firm Helker & Duts; that defendant could not write; and that he had obtained merchandise from Helker & Duts on faith of the forged order. Held, that the variations in the spelling of the names of the drawer and drawees fell within the principle of idem sonans, and the reversed order in which the names of the drawee firm were put was not a material and fatal variance. State v. Lane, 80 N. C. 407.

Same-Misspelling Name.-In an indictment for forgery in uttering and putting away counterfeit bank-notes, the notes were described as payable to "E. lymour, or bearer," while those offered in evidence were payable to "E. Lymour, or bearer." Held that the variance was fatal. Porter v. State, 15 Ind. 433.

An indictment for forging a note purported to set forth the note according to its tenor. The signature to the note, as stated in the indictment, was Otha X Carr.

his

mark

The note offered in evidence was signed

his

Oatha X Carr. Held, a fatal variance,

mark

and the note inadmissible. Brown v. People, 66 Ill. 344.

The purport" clause of an indictment alleged the name of the injured party to be "C. J. Chapman," whereas the tenor clause alleged the name to be "C. J. Chatman." Held, that the repugnancy was fatal to the indorsement. Westbrook v. State, 23 Tex. App. 401.

Same-Misuse of Initials.-Where an indictment set forth that the note forged purported to have been forged by one Nathaniel Durkie, and then set forth the tenor of the note, from which it did not appear that the note was made by Nathaniel Durkie, but by N. Durkie, this repugnancy was held fatal to the indictment. State v. Houseal, 2 Brev. (S. C.) L. 219.

An indictment set forth that paper writing alleged to be forged purported to have been signed by one Tristram Tupper. It then set out the instrument in hæc verba, from which it appeared that it was signed T. Tupper, and averred that the prisoner made it with the intention to defraud Tristram Tupper. Held, that there was no variance. State v. Jones, 1 McMull. (S. C.) L. 236; s. c., 36 Am. Dec. 257.

An indictment charging that a forged instrument was signed Pat Whelan" held not to be supported by proof that it was signed "P. Whelan," or D. Whelan." Murphy v. State, 6 Tex. App. 554.

An indictment charged the defendant with the forgery of a promissory note, with intent to defraud one Emily J. Schweitzer," while such note appeared, by copies thereof and of the indorsement thereon set out in the indictment, to have been payable to, and indorsed by, one "E. J. Schweitzer." Held, that the indictment was insufficient. Yount v. State, 64 Ind. 443.

An indictment charged forgery of a note for $60, signed with the name of James C. Orr. The instrument offered in evidence was a note for $60, bearing interest at ten per cent from date, and signed by J. C. Orr. Held, a fatal variance, both as to the name of the supposed maker and the liability which the instrument purported to create. State v. Fay, 65 Mo. 490.

A draft signed Joseph Johnson held not admissible under a count in an indictment stating it to be signed Jos. Johnson, president. United States v. Keen. I McL. C. C. 429.

a

In an indictment for forgery of certain order purporting to have been made and executed by one Vincent T. West, followed by the instrument set out ipsissimis verbis, showing that it was signed "Dr. West," held, that the purporting clause would be rejected as surplusage. Myers v. State, 101 Ind. 379.

Promissory Notes.-Upon the trial of an indictment for uttering a forged note, a note was offered in evidence in all respects similar to the note set forth in the indictment, except that "annually" was used instead of "semi-annually," and on the back of the note was written, "Wm. B. Haslip." "Oct. 21st, $47.60." Nov. IO, 1.20. Held, that this note was inadmissible. Haslip v. State, 10 Neb. 590.

It is no variance between the note offered in evidence and the one set out in the indictment that in the latter the letter "s" is added to the word "promise." May v. State, 14 Ohio, 461; s. c., 45 Am. Dec. 548.

Same-Variance.-The indictment was for forging a promissory note which, as set forth in the indictment, contained these words: "The drawers and indors. ers severally waive presentment for payment, protest, and notice of protest,' The note offered in evidence did not contain the words "and notice of

etc.

protest." Held, a fatal variance, and that the note was not admissible in evidence. Sharley v. State, 54 Ind. 168; s. c., 2 Am. Cr. Rep. 138.

In an indictment for forgery or counterfeiting, the omission to state. in setting forth the note, matter upon the face of the note which would not be essential to the validity and binding force of such note as against the ostensible maker,— e.g., the countersigning by public officers, in case of a bank-note, -is not a material variance. Wilson v. People, 5 Park. Cr. Cas. (N. Y.) 178.

On a trial for forgery of the indorsement of a promissory note the state introduced the original note and indorsement, which corresponded with the copies set out in the indictment, except that owing to an erasure which had been made in the figures indicating the date of the note, such date appeared to be a day earlier than it did in the copies set out in the indictment. Held, a fatal variance. Rooker v. State, 65 Ind. 86.

Where certain signatures of the note had been erased after payment by the indorser, but could be read under the erasure marks, it cannot be objected to its admission that it does not correspond with the indictment. People v. DeKroft, 1 N. Y. Supp. 692.

Same-Setting Out Indorsements.-The indorsements upon a promissory note need not be set out in an indictment charging that the note was forged. Hess v. State, 5 Ohio, 5; s. c., 22 Am. Dec. 767; Perkins v. Com., 7 Gratt. (Va.)651; s. c., 56 Am. Dec. 123. Neither need the indictment set out any other matter written upon the same paper constituting no part of the paper itself, and not entering into the essential description of the instrument. Perkins v. Com.. 7 Gratt. (Va.) 651; s. c., 56 Am. Dec. 123.

In an indictment for forging and uttering a check it is not necessary to set forth indorsements appearing upon the check, or a revenue stamp attached there

to.

Neither of these form part of the check. Miller v. People, 52 N. Y. 304; s. c., II Am. Rep. 706.

Indictment for forgery set out the face of the forged note, ignoring any indorsement; whereas, upon the note offered on evidence the defendant's name was indorsed, and he objected to its admissibility on the ground of variance. Held, that the indorsement was but an extrinsic and irrelevant writing, creating no variLabaite v. State, 6 Tex. App.

ance.

257.

A name written upon a note to show in whose hands it was placed for collec

tion need not be set up in describing the note in an indictment for the forgery thereof, and such difference between the description of the note in the indictment and the note offered in evidence does not amount to a variance. State v. Jackson, 90 Mo. 156.

An indictment for forgery set forth a note, calling it a negotiable promissory note in its exact words; but no counts of the indictment set forth in any indorsements. A note with indorsements was offered in evidence. The words of promise were "I promised," and it was proven that a certain bank, to which the note was offered, would not, if it had been genuine, have discounted it, on account of its defective form. Held, that it was no variance between the charge and the proof, that no indorsements were set forth in the indictment, and that the note offered sustained the charge; nor was it any objection that the word "promised" was in the past tense, and that the bank would not discount the note on account of defect of form. Perkins v. Com., 7 Gratt. (Va.) 651; s. c.. 56 Am. Dec. 123.

Bank Bill-Omitting Names of President and Cashier. An indictment for uttering and passing as true an uncurrent and worthless bank bill is insufficient if in setting forth a copy of the bill the names of the president and cashier are omitted; and the effect is not cured by an averment in the indictment that the jurors cannot give a more particular description of it. Com. v. Glancy, 89 Mass. (7 Allen) 537.

Bill of Costs.-In an indictment for for gery, the bill of costs alleged to have been forged contained the names of seven witnesses, while the instrument proved contained the names of ten witnesses; and the names of two of them, as set out in the indictment, were "Jas. Pratt " and Jno. Burnett," while the names of the corresponding witnesses in the bill of costs offered in evidence were Joseph Pratt" and "John Bennett." Held, that the variance was fatal. Luttrell v. State, 85 Tenn. 232.

Variance in Amount.-A variance of two cents in the amount was held to entitle the accused to an acquittal, in Burress v. Com., 27 Gratt. (Va.) 934

Omission of Figures in Describing Instrument. In an indictment for forgery. the omission of a figure in the description of the instrument forged is fatai State v. Street, Tayl. (N. C.) 158; s. c., I Am. Dec. 589.

Same-Omission of Part of.-The note offered in evidence, on trial of an indictment for forgery, contained a clause that