§ 793. Description of instrument.- Some term descriptive of the general class of instruments subject to forgery to which the instrument in question belongs is common, and should be such as to indicate that the instrument is of that class. Thus, where the forgery of bank-bills is not provided for, the instrument, though a bank-bill, should be described as a promissory note to bring it within that description of the statute, and such a description will not constitute a variance. But if the stat ute describes the two classes of instruments in the alternative, the distinction must be preserved in the indictment and the instrument accurately described in accordance therewith. In general the description must be accurate, as will hereafter appear. If the signature is forged, the instrument should not be described as one "signed by" the person whose name it bears, but "purporting to be signed" by such person. If the indictment is for forging an instrument purporting to be the act of a firm, it should allege the partnership, and state the name of each member, or that the same is unknown." It is not necessary to allege the money value of the instrument forged. The same rules which are applicable to the description of an instrument in case of forgery are applicable also to a charge of passing a forged instrument. But the contrary has been held on 1 C. v. Woods, 10 Gray, 477. A genuine instrument with a forged indorsement should not be described as a false and forged instrument: U. S. v. Albert, 45 Fed. R. 552. 2C. v. Dole, 2 Allen, 165; S. v. Ward, 6 N. H. 529. Where the statute enumerated both bonds and writings obligatory, it was held that a description of the instrument as a bond and writing obligatory was not fatal, a part of the description being superfluous: Rex v. Dunnett, 2 East, P. C. 985. So an indictment may describe the instrument as a warrant and order where the statute mentions a warrant or order: S. v. Jones, 1 McMull. 236; S. v. Holley, 1 Brev. 35. It is not error to describe the instrument as "a certain bond" in stead of "a certain paper writing See infra, § 798. 4 Rex v. Carter, 2 East, P. C. 985. An 5 Labbaite v. S., 6 Tex. Ap. 483. 7 P. v. Wright, 9 Wend. 193; equally L the theory that the uttering and publishing is a distinct offense from the forgery itself.1 § 794. Setting out the instrument. As a general proposition the instrument must be set forth in the indictment. This is called setting it forth by its tenor, and is essential unless some good reason be given for not doing so, such as that the instrument is lost or in the hands of defendant or otherwise not obtainable. This general rule is applicable in case of passing or having in possession as well as in forgery. Even where there is an excuse for not setting out the instrument by. its tenor there must be some description which will reasonably identify it. But such description need not be proved with the same accuracy as is required where the instrument is set out by its tenor. No particular form of words need be used in setting forth the instrument; it is sufficient to use the expression, "the tenor of which is as follows;" but to say that the instrument is of the "purport and effect following" is not sufficient, even though a copy be correctly set out. It is not proper, however, to incorporate the instrument into the indictment by sewing or pasting it upon the paper.10 Where the offense charged is the alteration of a public book of record, it 1 C. v. Ross, 2 Mass. 373. 2 S. v. Atkins, 5 Blackf. 458; McMillen v. S., 5 Ohio, 268; S. v. Johnson, 26 Ia. 407; S. v. Dowden, 2 Dev. 443; Dana v. S., 2 Ohio St. 91; S. v. Houseal, 2 Brev. 219; S. v. Jones, 1 McMull, 236; Croxdale v. State, 1 Head, 139; S. v. Parker, 1 D. Chip. 298; S. v. Twitty, 2 Hawks, 248; S. v. Harris, 5 Ired. 287; Stephens v. S., Wright, 73; Thomas v. S., 18 Tex. Ap. 213; Smith v. S., 18 Tex. Ap. 399. 3 P. v. Kingsley, 2 Cow. 522; P. v. Badgley, 16 Wend. 53; C. v. Houghton, 8 Mass. 107; S. v. Gustin, 5 N. J. 857; S. v. Callahan, 124 Ind. 364; Munson v. S., 79 Ind. 541; Armitage v. S., 13 Ind. 441; U. S. v. Howell, 64 Fed. R. 110. In setting out a receipt by its tenor it is not necessary to copy a bill of particulars to which it refers: Rex v. Testick, 2 East, P. C. 925. 4 S. v. Callendine, 8 Ia. 288; Jones v. S., 11 Ind. 357; McMillen v. S., 5 Ohio, 269. 5 Birdg v. S., 31 Ind. 88; S. v. Briggs, 34 Vt. 501; Roberts v. S., 72 Miss. 110; S. v. Stephen, 45 La. An. 702. 6 C. v. Parmenter, 5 Pick. 279; P., v. Badgley, 16 Wend. 53; Rex v. May, 1 Dougl. 193. 7 S. v. Johnson, 26 Ia. 407. 8 Swain v. P., 5 Ill. 178; Rex v. Powell, 2 East, P. C. 976. 9 S. v. Bonney, 34 Me. 383; S. v. Witham, 47 Me. 165; Dana v. S., 2 Ohio St. 91. But under a statute making technical errors immaterial, such a form of introducing the instrument was held sufficient: S. v. Johnson, 26 Ia. 407. 10 U. S. v. Fisler, 4 Biss. 59; Rex v. Harris, 7 C. & P. 429. is sufficient to describe the book by its usual name and allege where it is kept in its general use, so that it may be clearly identified. The question of setting out the instrument by its tenor is entirely different from the question as to proof. Even though the instrument is destroyed or cannot be produced in evidence, it is proper to set it out by its tenor, if that be practicable. Where the act charged is the alteration of an instrument, the prosecution may set out the instrument exactly as altered, or set it out as originally made and describe the alter ation.3 $795. Foreign language; translation.- If the instrument is in a foreign language, it is not necessary to set it forth in such language, but the setting forth of the translation will be sufficient; or both the original and the translation may be set out.5 § 796. Purport.— Where it is impracticable to set out the instrument in hæc verba, its purport should be alleged so that the court may see that it is an instrument the false making of which will constitute a crime. And so if the instrument set out does not on its face show that it is one of the instruments the false making or passing of which will be criminal, its purport must be explained so as to show that the offense has been committed. But it is unnecessary to give the purport if the instrument, as set out with the names of the parties to it, shows upon its face that it is an instrument the false making of which is forgery. It is immaterial what name is given to the instrument in the indictment, if its proper name and description ap 1 S. v. Granville, 45 Ohio St. 264. 2 S. v. Potts, 9 N. J. 26; S. v. Gustin, 5 N. J. 857. 3 S. v. Robinson, 16 N. J. 507; S. v. Bryant, 17 N. H. 323; Hawkins v. S., 28 Fla. 363; 2 East, P. C. 979; 3 Chitty, Cr. L. 469. 4 P. v. Ah Woo, 28 Cal. 205. 5 Duffin v. P., 107 Ill. 113; Rex v. Szudurskie, 1 Moody, 429; Rex v. Goldstein, Russ. & Ry. 473. But if the translation is defective the indictment will be insufficient: Rex v. Harris, 7 C. & P. 429; Rex v. Warshaner, 1 Moody, 466. 6 Wallace v. P., 27 Ill. 45; S. v. Horan, 64 N. H. 548. 7C. v. Ray, 3 Gray, 441; Henry v. S., 35 Ohio St. 128; Carberry v. S., 11 Ohio St. 410; S. v. Cook, 52 Ind. 574; Fomby v. S., 87 Ala. 36; King v. S., 27 Tex. Ap. 567. 8 C. v. Castles, 9 Gray, 123; P. v. Clements, 26 N. Y. 193; S. v. Bibb, 68 Mo. 286; S. v. Fenly, 18 Mo. 445; P. v. Todd, 77 Cal. 464; P. v. Tomlinson, 35 Cal. 503; Cross v. P., 47 Ill. 152; Smith v. S., 29 Fla. 408; S. v. Covington, 94 N. C. 913; Morris v. S., 17 Tex. Ap. €60. L But a variance between pear from the instrument as set out. the purport and the tenor of the instrument will be fatal. As some description is necessary, that portion of the purporting clause which is inconsistent with the tenor cannot be rejected as surplusage. It is not a variance, however, to charge the forging of the name of one person to an instrument which purports to be signed by two. 797. Immaterial matters.- Even when it is necessary to set out the instrument by its tenor, it is only necessary to set out that part of it which forms the contract on which the forgery is based; thus, if the forged instrument purports to be a promissory note, the indorsement thereon, being in itself a separate contract and not a part of the note, need not be set out.5 For the same reason it is unnecessary to set out any figures, words, or devices in the margin of the instrument which do not constitute an essential part thereof. 1S. v. Crawford, 13 La. An. 300; U. S. v. Trout, 4 Biss. 105; U. S. v. Williams, 4 Biss. 302; U. S. v. Marcus, 53 Fed. R. 784; U. S. v. Bennett, 17 Blatch. 357. 2 C. v. Ray, 3 Gray, 441; C. v. Lawless, 101 Mass. 32; S. v. Handy, 20 Me. 81; S. v. Shawley, 5 Hayw. 256; Roberts v. S., 2 Tex. Ap. 4; Westbrook v. S., 23 Tex. Ap. 401; Rex v. Gillchrist, 2 East, P. C. 982; Rex v. Jones, 2 East, P. C. 883; Rex v. Reading, 1 East, 180, n. But under a statute making any variance immaterial which does not affect the substantial rights of the defendant, a discrepancy between the tenor and the purporting clause will not vitiate the indictment: Myers v. S., 101 Ind. 379. 3 C. v. Ray, 3 Gray, 441. 4 S. v. Flora, 109 Mo. 293; Fogg v. S., 9 Yerg. 392. 5 Miller v. P., 52 N. Y. 304; C. v. Ward, 2 Mass. 397; S. v. Yerger, 86 Mo. 33; S. v. Jackson, 90 Mo. 156; Perkins v. C., 7 Grat. 651; Labbaite v. S., 6 Tex. Ap. 257; Hennessey v. S., 23 Tex. Ap. 340. If the indorsement is forged it is to be set out as a distinct contract: C. v. Adams, 7 So the omission of the Met. 50. If the indorsement constitutes a part of the forgery, the indictment should so allege and the indorsement must then be set out: S. v. Handy, 20 Me. 81. Variance as to residence of drawee of a forged bill is immaterial: Trask v. P., 151 Ill. 523. 6 C. v. Bailey, 1 Mass. 62; C. v. Henry, 118 Mass. 460; S. v. Carr, 5 N. H. 367; S. v. Robinson, 16 N. J. 507; S. v. Flye, 26 Me. 312; Langdale v. P., 100 III. 263; Buckland v. C., 8 Leigh, 732; Smith v. S., 29 Fla. 408; Burke v. S., 24 Tex. Ap. 326. Thus, it is not necessary to set out the number of a check: Cross v. P., 47 Ill. 152; C. v. Bailey, 1 Mass. 62: or the figures cut in a draft: White v. T., 1 Wash. 279; nor a notice required to be printed on the instrument, but no part of it: U. S. v. Marcus, 53 Fed. R. 784. It is not necessary to exhibit the seal of the treasury in an indictment for counterfeiting a treasury note: U. S. v. Bennett, 17 Blatch. 357. But the omission of a part of the date is fatal: C. v. Stevens, 1 Mass. 203. The omission of the name of the state in the margin of proper revenue stamp has been held immaterial, although such stamp might be essential to authorize the introduction of the original in evidence.1 § 798. Variance. As a general proposition the evidence as to the nature of the instrument, whether it be the original itself or secondary evidence with reference thereto, must correspond with the description of the instrument in the indictment, and a variance will be fatal. And this rule is applicable even where immaterial matter is included in the description or the copy of the instrument as set out. This strict rule requires the proof to correspond with the instrument as set out by its tenor, even to the spelling of words and the initials of the names of the parties, and is especially applicable to any variance in the amount stated. But a mere misspelling of a word which does not make it another word is, by the weight of authority, immaterial. And where the forged instrument is in such clumsy and unintelligible chirography as to be difficult to decipher, a doubtful variance even in the name will not be fatal." It was so held also where there was an error in giving the abbreviations of certain Latin words on the seal affixed to the instrument which the pleader had attempted to set out. It does not constitute a variance that the allegation is of the forgery of a note with two signatures, while the proof shows the forgery of one signature only.' a bank-note is a material variance: C. v. Wilson, 2 Gray, 70. 1 C. v. McKean, 98 Mass. 9; C. v. Hall, 97 Mass. 570; Miller v. P., 52 N. Y. 304. 2 U. S. v. Hinman, 1 Bald. 292; S. v. Waters, 3 Brev. 507; S. v. Lytle, 64 N. C. 255; Ex parte Rogers, 10 Tex. Ap. 755. Thus, a variance as to the date will be fatal: C. v. Stow, 1 Mass. 54. It is not a variance that coins alleged to have been forged are described as fifty-cent pieces and twenty-five cent pieces, although they are described in the statute as half dollars and quarter dollars: U. S. v. Burns, 5 McLean, 23; U. S. v. King, 5 McLean, 208. *S. v. Clark, 23 N. H. 429; S. v. Smith, 31 Mo. 120; Rooker v. S., 65 Ind. 86; McDonnell v. S., 58 Ark. 242. 4 Brown v. P., 66 Ill. 344; S. v. Pease, 74 Ind. 263; S. v. Smith, 31 Mo. 120. It will not constitute a variance that in the instrument as set out an innuendo is incorporated in parentheses: Alexander v. S., 28 Tex. Ap. 186. 5 Burress v. C., 27 Grat. 934; Shirley v. S., 1 Oreg. 269. 6 Allgood v. S., 87 Ga. 668; U. S. v. Hinman, 1 Bald. 292; 1 Bishop, Cr. Proc., § 562. 7S. v. Gryder, 44 La. An. 962. 8 U. S. v. Mason, 12 Blatch. 497. So where the discrepancy arose from the attempt to make a precise imitation of the name it was held immaterial: Mathena v. S., 20 Ark. 70. 9 Duffin v. P., 107 Ill. 113; S. v. Cross, 101 N. C. 770. But the evi |