799. Name forged; idem sonans.- In describing the person on whom the offense was committed, certainty to a common intent only is necessary, the name by which he is usually known being a sufficient description. If the indictment sets. out in full the name of the person whose name is alleged to be forged, while the instrument as set out by the tenor shows only the initials of his Christian name, the indictment should expressly allege that the two names as thus given represent the same person. Without this such a variance would be fatal. A variance between the name as given in the indictment and as shown by the evidence is material and will defeat the prosecution. Thus, a variance between the evidence and the allegation as to the first name of the person whose name is charged to have been forged is material. But where there was uncertainty in the name signed, and it appeared that the signature was an attempt to imitate the genuine signature, a discrepancy between the imitated signature and the real name was held not to be fatal. The wrong spelling of a name is unimportant if the same sound is preserved." § 800. Statutory provisions as to indictment.-To obviate the technical difficulties which may arise where the attempt is made to set the instrument out by its tenor, many statutes provide that it shall be sufficient to give the purport of the instrument only. And under such provisions it is sufficient to dence must show the forgery of the names alleged to have been forged and not of other names, the forgery of which is not charged: P. v. Marion, 28 Mich. 255. ported to be the deed of Abram Barnes was held to be supported by proof that the signature was A. Barnes: Ham v. S., 4 Tex. Ap. 645. Variance as to middle initial is im 1 Durham v. P., 5 Ill. 172; Rex v. material: P. v. Smith, 103 Cal. 563. Lovell, 2 East, P. C. 990. 2 Shinn v. S., 57 Ind. 144; S. v. Jones, 1 McMull. 236. 3 S. v. Houseal, 2 Brev. 219; English v. S., 30 Tex. Ap. 470. Further as to variance between the tenor and the purport as set out see the preceding section. 4 Jacobs v. S., 61 Ala. 448; McClellan v. S., 32 Ark. 609; Potter v. S., 9 Tex. Ap. 55; Murphy v. S., 6 Tex. Ap. 554. 5 Murphy v. S., 6 Tex. Ap. 554. But an allegation that a forged deed pur 6 S. v. Nichols, 38 Ia. 110. 7S. v. Bean, 19 Vt. 530; S. v. Wheeler, 35 Vt. 261; Powers v. S., 87 Ind. 97; S. v. Collins, 115 N. C. 716; Parker v. P., 97 Ill. 32; S. v. Lane, 80 N. C. 407. 8 S. v. Hill, 30 Wis. 416; S. v. Henderson, 29 W. Va. 147; S. v. Clinton, 67 Mo. 380; McGuire v. S., 37 Ala. 161; S. v. Sherwood, 41 La. An. 316; Reg. v. Davies, 9 C. & P. 427; Reg. v. Collins, 2 M. & Rob. 461; Rex v. Burgiss, 7 C. & P. 490. designate the instrument by any name by which it is usually described.1 A description which would be sufficient in an indictment for larceny of the instrument is enough. Under the usual statutory provision that a variance which is not prejudicial to the defendant shall not defeat the prosecution, it was held that a variance as to date which could not have misled the defendant was immaterial.3 § 801. Allegations as to the act. The indictment must allege the acts constituting the forgery, as that defendant signed the name of another person without authority, or procured some one to do so, or the like. The allegation that the accused "forged" the writing is merely a legal conclusion, and is not sufficient. But under statutes in some states, a general allegation that defendant "forged," etc., or procured the forgery, or acted and assisted therein, is sufficient. Where the forgery consists in altering, the indictment may charge the alteration, or simply charge the false making. And similarly it has been held that under a statute for altering, corrupting, or defacing a public record, it was sufficient to allege that defendant "altered" or "corrupted," describing the record, without setting out the facts. The charge of forging and counterfeiting is not repugnant. Under an indictment charging defendant with the act, he may be convicted upon proof of procuring the act to be done by another in his presence.10 In general the allegation as to the act done must be such as to connect it with the accomplishment of the fraud; for instance, if the charge is of forging a deed, it must appear that the party intended to be defrauded had some interest in the property;" or where the IS. v. Clement, 42 La. An. 583; S. v. Pons, 28 La. An. 43; S. v. Nelson, 28 La. An. 46; Hughes v. C., 89 Ky. 227; P. v. Rynders, 12 Wend. 425. 2 P. v. Stewart, 4 Mich. 655; Coleman v. C., 25 Grat. 865. S. v. Blanchard, 74 Ia. 628. 4 C. v. Williams, 13 Bush, 267; Stowers v. C., 12 Bush, 312. The same rule is applicable to an allegation of uttering: C. v. Williams, 13 Bush, 267. 5 Jones v. S., 50 Ala. 161; S. v. Maas, 37 La. An. 292. 6 Huffman v. C., 6 Rand. 685; Brown v. C., 2 Leigh, 769. S. v. Weaver, 13 Ired. 491. And see supra, § 765. But to allege generally the alteration and defacing, without charging the acts done, is not sufficient: S. v. Knippa, 29 Tex. 295. 8 Loehr v. P., 132 Ill. 504. 9 Hobbs v. S., 9 Mo. 845; Mackey v. S., 3 Ohio St. 362, overruling Kirby v. S., 1 Ohio St. 185. 10 Hughes v. C., 89 Ky. 227. forgery charged is of an instrument transferring a note, the existence of the note must be shown. The forging of a part of an instrument may properly be charged as the forgery of the whole instrument.2 § 802. Allegation of intent; feloniously.-The offense not being a felony at common law, it was not, and in general is not, necessary to allege that the act was feloniously done; the only object of such allegation being to show the criminal intent, which may be expressed in other words as the language of the statute may require. But the intent to defraud must be expressed in some form. While it is usual to charge the instrument as having been "falsely " made, that word is not essential." § 803. Different offenses; duplicity. It seems to have been usual to charge in one count the forging and uttering of the forged instrument, and such an indictment, it has been held, does not charge two offenses so as to be obnoxious to the objection of duplicity. So, under statutes which forbid more than one crime being charged in the same indictment, it is held that the forging and the uttering may be charged in separate counts. But, notwithstanding these authorities, it is undoubtedly the correct view that the forging and uttering are distinct offenses, neither one being necessarily involved in the commission of the other. And under this view, counts for forging and for uttering contained in the same indictment, though 1 Simms v. S., 32 Tex. Ap. 277. And see Rex v. Wilcox, Russ. & Ry. 50. 2 C. v. Butterick, 100 Mass. 12; P. v. Clements, 26 N. Y. 193; S. v. McGardiner, 1 Ired. 27; Ham v. S., 4 Tex. Ap. 645. 3 S. v. Murphy, 17 R. I. 698; Cohen v. P., 7 Colo. 274; Miller v. P., 3 Ill. 233. 4 P. v. Mitchell, 92 Cal. 590; Morris v. S., 17 Tex. Ap. 660. P. v. Mitchell, 92 Cal. 590; S. v. McKiernan, 17 Nev. 224. As to intent, see, also, supra, §§ 766, 776, 778, 783. As to knowledge, see § 789. 6 Parker v. P., 97 Ill. 32; P. v. Altman, 147 N. Y. 473; In re Walsh, 37 Neb. 454; S. v. Rounds, 76 Me. 123; 7P. v. Adler, 140 N. Y. 331; P. v. 8 Parker v. P., 97 Ill. 32; S. v. McCormack, 56 Ia. 585; Page v. C., 9 Leigh, 683; Mowbray v. C., 11 Leigh, 643; Scott v. C., 14 Grat. 687; Bell v. S., 57 Md. 108; Ball v. S., 48 Ark. 94; S. v. Snow, 30 La. An., Part I, 401; Hooper v. S., 30 Tex. Ap. 412; Crawford v. S., 31 Tex. Ap. 51. they relate to the same instrument, are bad for duplicity.1 Where, however, different acts, such as those of counterfeiting, passing, having in possession, etc., of counterfeit money, are enumerated in one section as constituting a crime with a single punishment, they may be charged conjunctively in one count without objection. So the doing and procuring may be charged in the same count, being made criminal by the same section of the statute. If a minor offense is charged and proved, there should be a conviction although the evidence shows a higher offense of the same character. The forgery of different instruments cannot be charged in the same count,5 even though the instruments are of the same character, and made and uttered at the same time. If different acts to constitute an uttering are parts of the same transaction, the prosecutor need not elect as to which shall be relied on until the whole evidence is in. The possession of different kinds of coin may be charged in different counts to meet the evidence. 8804. Form of indictment.- So much depends upon the statutes describing the offense and also the general statutory provisions in each state as to indictments in general, that it is difficult to give any forms which can be relied on, but the following will suggest the allegations which are usual. Statutes making it unnecessary to allege the name of the person intended to be defrauded are now so nearly universal that it is not deemed necessary to include such an averment among the allegations. The pleader must consult the statutes of his own state as to details. 18. v. McCormack, 56 Ia. 585. 2S. v. McPherson, 9 Ia. 53; S. v. Barrett, 8 Ia. 536; S. v. Myers, 10 Ia. 448; McGregor v. S., 16 Ind. 9; S. v. Murphy, 17 R. I. 698. Otherwise if the acts are by statute made distinct offenses: S. v. Wilkins, 17 Vt. 151. 'S. v. Morton, 27 Vt. 310; Rasnick v. C., 2 Va. Cas. 356; S. v. Houseal, 2 Brev. 219; or in different counts of the same indictment: U. S. v. King, 5 McLean, 208; U. S. v. Burns, 5 McLean, 23. Anon., Russ. & Ry. 378. So if the evidence proves the common-law offense, defendant may be convicted accordingly, although the statutory offense charged in the indictment is not made out: S. v. Lamb, 65 N. C. 419. P. v. Wright, 9 Wend. 193. 6 Barton v. S., 23 Wis. 587. Contra, Rex v. Thomas, 2 East, P. C. 934. 7 Rex v. Hart, 7 C. & P. 652. 8 U. S. v. Howell, 65 Fed. R. 402. FORGERY IN GENERAL. That A. B., in on, feloniously did falsely and fraudulently make and forge a certain [name the instrument according to the statutory description], in words and figures following, to wit: [here set out the instrument], with intent to defraud. OF AN ORDER NOT SET OUT. That A. B., in -, on-, feloniously did falsely and fraudulently make and forge a certain paper writing purporting to be an order signed by C. D. and directed to E. F., requesting the payment by said E. F. to said A. B. of the sum of dol lars, and which said paper writing is lost and destroyed and a copy thereof cannot by the grand jury be set forth, which said paper writing was so feloniously, falsely and fraudulently made and forged with intent to defraud. UTTERING. That A. B., at, on, feloniously did utter and attempt to employ as true a certain [name the instrument, or say a certain paper writing], in words and figures as follows, to wit: [set out copy of the instrument or state that it is lost, or otherwise explain the inability to set it out], with intent to defraud, then and there well knowing that said [naming the instrument as above] was false and forged.1 VI. EVIDENCE. § 805. Production of instrument.- The best evidence of the forgery is the production of the instrument, and it must be produced or its absence accounted for; thereupon the next best evidence is required. In the absence of better evidence 1 See S. v. Tingler, 32 W. Va. 546. 2 C. v. Snell, 3 Mass. 82; S. v. Potts, 9 N. J. 26; P. v. Swetland, 77 Mich. 53; Kirk v. C., 9 Leigh, 627; Manaway v. S., 44 Ala. 375; Dovalina v. S., 14 Tex. Ap. 312; Rex v. Hunter, 3 C. & P. 591; Rex v. Hunter, 4 C. & P. 128. If the instrument is supposed to be in the control of defendant, notice must be given to defendant to produce it before secondary evidence is admissible: Rex v. Haworth, 4 C. & P. 254. By Michigan statute, where the instrument is shown to be in the defendant's control, notice to produce is not necessary in order to authorize the introduction of the record thereof: P. v. Swetland, 77 Mich. 53. 3 U. S. v. Britton, 2 Mason, 464; Thompson v. S., 30 Ala. 28; S. v. Blodgett, 1 Root, 534; S. v. Ford, 2 Root, 93; Ross v. Bruce, 1 Day, 100; Pendleton v. C., 4 Leigh, 694; Reg. v. Hall, 12 Cox, 159. |