#### Perkins v. The Commonwealth.

June Term, 1851.

[56 Am. Dec. 123.]

1. Criminal Law—Forgery—Indictment—Allegations.*— An indictment for forgery charged the forgery of a negotiable note, and set it out *in liceo verba-,*without setting out the endorsements upon the back of it. On the trial when the note was offered in evidence, it was objected to on the ground of variance. Help: Tt was not necessary to set out in the indictment the endorsements upon the note, or any other matter written upon the same paper, constituting no part of the note itself: and not entering into the essential description of that instrument.

2. Negotiable Notes—Case at Bar.—The note said “I promised to pay,” &c. It was still a negotiable note, though a hank might refuse to discount it because ot its informality.

3. Criminal Proceedings—Instructions† — Case at Bar.— After the case had been submitted to the jury and they had retired to consider of their verdict, they returned into Court and asked the Court to instruct them as to whether it was necessary that they should he satisfied that the prisoner did actually and personally forge the paper charged in the indictment, in order to his conviction. The Court instructed them that either the actual forgery by the prisoner, or his actual presence aiding and assisting with a felonious intent, when the forged instrument was made, constituted the offence of forgery. Held: The instruction being responsive to the enquiry propounded by the jury, even if it was an abstract proposition, yet as the jury asked an instruction on the point, and the instruction given, correctly stated the law, it is not cause for setting aside the verdict,

*In April 1851, Henry T. Perkins was indicted for forgery, in the Circuit court of law for the county of Henrico. The first count of the indictment set out the paper which was charged to have been forged, which was as follows: “$4000.

Seven Islands, Fluvanna County, December 10th, 1850.

Sixty days after date, for value received, I promised to pay to the order of William T. Hillous, 4 thousand dollars, without offset, negotiable and payable at the Bank of Virginia, at Richmond.

John H. Cocke.”

There were two other counts which charged the forgery of the note. But none of the counts set out or referred to the endorsements upon it.

On the trial, the prosecuting attorney offered in evidence a note conforming on its face to that set out in the indictment; but on the back of it was endorsed the names of W. Gault and William T. Hillous : And the prisoner, by his counsel, moved the Court to exclude the paper from going in evidence to the jury, upon the ground that no count in the indictment set forth the endorsements upon it; so that there was a variance between the allegations and the proofs. But the Court overruled the motion, and the prisoner excepted.

After all the evidence had been introduced and the testimony closed, and the jury had retired to consider of their verdict, they returned into Court and asked the Court to instruct them as to whether it was necessary that they should be satisfied that the prisoner did actually and personally forge the paper charged in the indictment, in order to his conviction. And the Court instructed the jury that if from the evidence they were satisfied that the prisoner either actually and personally *made the forged instrument, or was actually present, aiding, abetting and assisting, with a felonious intent, when the forged writing was made, they must find him guilty, and to this opinion of the Court the prisoner again excepted.

The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at two years. Thereupon he applied to the Court for a new trial, which was refused; and he again excepted. The facts proved on the trial were spread on the record, and they are as follows:

On the 13th December 1850, the prisoner brought to the Bank of Virginia the paper writing referred to in the first bill of ex*332ceptions, and demanded the money for it. He was ■ very much intoxicated, but appeared to know what he was about; and certainly seemed anxious to get the money. He was told he could not get the money, and said he was very much surprised to hear it; that his uncle had told him he had nothing to do but to present the paper and get the money. He said he had a drove of hogs coming to town; and added that the note would be all right. The president and cashier of the bank then had him taken into custody.

It was further proved that there was such a man as William T. Hillous; that he had been in Richmond in the Bank of Virginia, within ten days before the trial of this cause; and was thought to be a man of extensive dealings as a hog drover.

It was further proved that the signature, John H. Cocke, was not written by that gentleman, nor by his authority; and that no part of the note was written by him. That his post office is Seven Islands, Fluvanna county; and that he does not know the prisoner; and had never seen him, to his knowledge, until the time of his trial.

*It was further proved that the note introduced in evidence is informal according to the rules of the bank; and even if genuine would not have been discounted. It was further proved that the endorsement of the name of W. Gault on the note is not genuine; and the Court certified that it seemed to the Court that the names of W. Gault and William T. Hillous, endorsed on the note, are in the same handwriting with the whole body of the note, including the signature John H. Cocke.

The Court gave judgment upon the verdict, and thereupon th§ prisoner applied to this Court for a writ of error.

R. R. Howison for the prisoner.

*

Criminal Law—Forgery—Indictment—Allegations.— On this question, see the principal case cited in State v. Henderson, 20 W. Va. 147,1 S. E. Bep. 229. See also, monographic *note*on “Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt, 865; monographic *note*on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

†

Criminal Proceedings—Instructions,—The principal case is cited in Whitehurst v. Com.. 79 Va. 560. See monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

BOMAX, J.,

delivered the opinion of the Court.

The Court is of opinion that, as this prosecution was only for forging the writing which purported to be a negotiable note, there was no necessity that the indictment should set out the endorsements, or any other matter written upon the same paper, constituting no part of the note itself, and not entering into the essential description of that instrument. It is enough to set out in the indictment the note itself, without any other extrinsic marks or writings upon the same paper. Commonwealth v. Ward, 2 Mass. R. 397; Simmons v. The State, (Ohio) 7 Ham. R. pt. 1, 116. When the paper with these unessential marks and writings is offered in evidence, for the purpose of sustaining the prosecution for the forgery of the note, there will be no valid objection on the ground of variance between the proofs and the charges laid in the indictment. Stark. Cr. PI. 113; Rex v. Testick, in note, 1 East’s R. 180; East’s Cr. Law 925; Commonwealth v. Adams, 7 Metc. R. 50; Commonwealth v. Searle, 2 Binn. R. 332; Commonwealth v. Ross, 2 Mass. R. 373.

*Nor is there any ground for the exception that the negotiable note, which is truly set out, contained the acknowledgment of the promise to pay in the past tense, instead of the usual promise in the present tense. Whether it was in the past or present tense, it was equally a negotiable promissory note. Commonwealth v. Parmenter, 5 Pick. R. 279. Nor would the paper lose the character of a negotiable promissory note, as charged in the indictment, because there should be any thing in the frame of the note which might, for want of some conformity to the practice of the bank, deter the bank from discounting the note. It was not less a negotiable promissory note though the bank might refuse to negotiate it.

Nor is there any ground for the exception, stated as the third, in the petition. The instruction given by the Court was a direct response to the enquiry, which was propounded by the jury, for settling their doubts, according to the views taken by them of the evidence in the case. The matters of law, stated by the Court in that instruction, were correctly stated. Even if it might seem to others than the jury to be an instruction upon what might be deemed abstract and foreign from the case, yet the verdict ought not to be set aside on that account; the judgment of the Court being right upon the question submitted to it by the jury.

Another exception stated in the petition to the proceedings of the Court below, is the refusal of the Court to award a new trial, it being alleged that the evidence in the record is insufficient to sustain the verdict. It is abundantly proved that the note was forged; and that the note so forged was in the possession of . the accused; and that he was seeking to utter it, and to derive benefit from it. When the forgery was detected, he offered no explanation whatsoever in regard to the paper—how or when it came to his hands—-nor of any of the circumstances connected with the paper, or his ^possession of it. He made no attempt to offer any such explanation. By whom the forgery of the paper was committed, whether by the accused or some other person, was a question of fact for the jury to decide upon, after weighing all the proofs and circumstances of the case. It was so held by Story, J., in United States v. Britton, 2 Mason’s R. 464; and seems so to have been held in Spencer’s Case, 2 Leigh 751.

The rule of evidence in such cases was laid down in the Supreme court of North Carolina, in the case of The State v. Britt, 3 Dev. ‘ R. 122; and in the case of The State v. Morgan, 2 Dev. & Batt. 348. Ruffin, C. J., in delivering the opinion of the Court in the latter of these cases, maintained that the accused being in possession of the forged order, drawn in his own favor, were facts constituting complete proof that, either by himself, or by false conspiracy with others, he forged or assented to the forgery of the instrument—that he either *333did the act or caused it to be done, until he shewed the actual perpetrator, and that he himself was not privy. A distinction was taken between having such paper, as a forged order, in possession, and having a counterfeit bank note; an instrument current in its nature, and which might well come innocently to any one’s hands. In the case of the forged order, he who holds it under such circumstances, it was said, should be taken to be the forger, unless he shews the contrary. And it was moreover said, in one of the cases cited, that with the exception of such papers as pass from hand to hand in the common transactions of life, the uttering of a forged paper, if unexplained, is in sound sense, evidence of the forgery of the paper by the utterer.

In the present case, it was proved that the endorsement of Gault, as well as the note itself, was forged. Although in the order of endorsements his name precedes the endorsement of the payee, he must be regarded as the pretended endorsee of the payee; and the title *of the accused must be regarded as derived under this forged endorsement of Gault’s name. This case does not require the Court to decide what is the degree of proof, or the character of the proof, as being presumptive or prima facie, which is furnished against the accused as the forger, by the mere circumstances that the instrument was forged and that he was endeavouring to utter or to use it for his own benefit. These circumstances it was the province of the jury to weigh, as important proofs against him; and to combine them in their consideration of the case, with the circumstance of the forged endorsement, and the total omission on his part, to offer any exculpatory explanation whatsoever. In combination with these or any other circumstances before the jury, the evidence tended with powerful effect to convict the accused, as charged in the indictment, with having forged the note. In the exercise of its appellate jurisdiction in a criminal prosecution, this Court cannot, without violating the authority of precedent decisions in such cases, interpose to disturb or set aside the verdict which has been rendered by the jury in this case. It cannot pronounce that the Court below erred in refusing to grant a new trial.

The writ of error applied for is refused.