#### The State *v.*Bryant Britt.

In the'actof 1801 *{Rev. c.*572) to prescribe tile punishment forforgei’3 , the words “ shall show forth in evidence any forged deed,” &c. are confined to the exhibition of it as evidence upon a judicial proceeding, and are not equivalent to the words “ utter and publish” in. the statutes against counterfeiting.

This was an indictment for forgery, tried before his Honor Judge Dantei, at Robeson,, on the last circuit.

The first count charged the defendant with haying forged an order for the delivery of goods, with intent to. defraud *John II. Powell.*

The second count charged him with the forgery of an order for the payment of money, with a similar intent.

The third with having in his possession a forged order for the delivery of goods, and Avith “ uttering and publishing it as true,”, also with the intent of defrauding *Powell.*The fourth count was exactly similar to the last except that the order w as charged to be for the payment of money.

The testimony Avas, that the defendant, having in his possession a forged order directed to *John II Powell)*and purporting to be signed by one *Jacob Brill,*whereby *Powell*was requested to let him, the de - fendant, “have the amount of six dollars,” presented it to *Powell,*and received the amount, cither in money or in goods. ‘ That the defendant, upon being charged A\Titb the forgery, said he intended to have taken up the order before it Avas .discovered.'

Upon the defence it was proved, that there was another *Jacob Britt*in the neighborhood, besides the one whose name was alleged to have been forged, but he Avar; only sixteen years of age. No evidence Avas offered, that the order was in the handAvriting of the defendant, or that of *Jacob Britt*Junior. On the trial many exceptions Avere taken for the defendant. The only one necessary, to state, is the folloAving, viz : That the third and fourth counts of the indictment charged that the defendant did utter and publish as true” a forged order, *123which was not an offence within the statute; as the words of the act of 1801, “ to prescribe the punishment of forgery,” *(Rev.*c. *572)*were, *“ shall show forth in*evidence,” and the words *“ shall niter and*publish” were entirely omitted in it.

Upon this point,, his Honor instructed the jury, that the words *“ titter and publish,”*used in the indictment, were equivalent to the words “ *show forth in evidence”*used in the statute, and that the indictment described the offence sufficiently, without using the very words of the statute. His Honor further informed the jury, that the forgery of an order for the delivery of goods, was within the act of 1801, and that it ihadó'no difference whether the order was for the payment of money or the delivery of goods.

The defendant was acquitted upon the first and second counts of the indictment, and convicted on the third and fourth, and judgment being rendered on the verdict, he appealed.

Badger, as *;'amicus eurke,*suggested,

that by the 15th section of the statute 5th *Elia,*it was provided, that “this act, nor any pain, forfeiture or thing therein contained, shall extend to any attorney, lawyer or counsellor, that shall, for his client, plead, *show forth,*or give in evidence, any false and forged deed, &c. for time and good, being not party or privy to the forging of the same.” That the 16th section of the same act was a proviso in favor of any person, who “ may plead or show forth-in evidence any deed, &c. exemplified under the great seal, not knowing,” &c. He argued from these provisos, that rise words “ show forth in evidence,” meant exhibiting in a judicial proceeding ; and further, tlia,t the words in that .statute being, “shall pronounce, publish, or show forth in evidence,” and that the words *pronounce and publish'*being omitted in the act of 1801, the omission must be taken to have been by design. •

The *Attorney-General,*for the prosecution,

contended, 1st, that the words “ utter and publish,” were equivalent to the words *“*show forth in evidence.” and cited *124the act of 1801 *(Rev. c.*572) and *Jlrchbold Orim.*Plead. 194- ■

The forging' delivery ^of goods is within the act.

l 2d. That the indictment was good at common law, anf] cited 2 *Russell*1456. 2 *Easi P. C.*c. 1987. -

3d. He was about to cite an authority to prove, that 4orSeiT °f an order for the delivery of goods, was within the act of 1801' — but the court observed, that on this point, there could be no doubt.

• Rueetn, Judge.'

There seems to be no reason to doubt the correctness of any of the opinions pronounced in the Superior Court, except that which relates to the force of the words *u*utter and publish,” in the third and fourth counts. They were held to he synonymous with *u*show forth in evidence.” The former phraseology is that of the statutes relating to counterfeit money; the latter, of the acts for punishing forgery of private instruments. The different subjects may, of themselves, account for the difference of the terms used ; and seem to require a different meaning» But títere is a decisive argument tó be drawn from the statute 5 *Eliz.c.*14, from which ours is taken. The words of that statute are ■“ shall pronounce, publish or show forth in evidence” (of which this last expression is alone retained by us) *u*any such false or forged deed &c: as true, knowing the same -to he forged &c. *(except being-attorney, lawyer or counsellor, he shall for his client, jdead, show forth or give in evidence such false or forged deed,, cfc. to the forging whereof he was not- party or privy,)*and shall he thereof convicted, &c.” This plainly restrains 'the meaning of *“*showing forth or giving in evidence,” to a giving of the deed in evidence in a court of justice; and is alto • gether a different thing, from the mere exhibition of it *in pais.*The words “ pronounce and publish” in the English act are not found in ours. We are consequently constrained to construe the words in our own act, as the same words are used in that of *Elizabeth.*And the o mission of the other terms must be held to have been intentional in the legislature; and the more especially, as the acts against counterfeiting all have “utter and publish” in them, and omit “ show forth in evidence,”'

*125p02¡eLiMTMofa forged order in pl.e^cd diher have forged befórgvd/un-t'd the contrary aPpear'

A new trial must therefore be granted, altl.o’ the case Seems'fully to justify a conviction, upon the two first counts, for the forgery itself, if the testimony was enti-tied to credit enough to authorize the verdict giyen upon the other counts. That the order was not in the handwriting of the defendant did not rebut the legal presumption of his guilt. Being in possession of the forged order, drawn in his .own favor, were facts constituting complete proof, that either by himself or hy false conspiracy with others, he forged or assented to the forgery of the instrument — that he cither did the act or it to be done — until he 'showed the . actual perpetrator, and that ho himself was not privy. It is very different from having a counterfeit hank note. That is an instrument current in its nature and use, and may well come innocently to one’s hands. But it is next to impossible, that the defendant could get possession of such an instrument as this, purporting -to he for his own benefit, without having fabricated, or aided in the fabrication of it. If the instrument be a forgery, he who holds it under such, ch’cumstanccs Is taken to be the forger, unless ho shows the contrary.

But for the error already mentioned, the verdict must. be set aside, and the case go to another jury.

Per Curiam — Judgment reverse»', ■