#### THE STATE *vs.*JAMES GHERKIN.

Falsely putting a witness’ namo to a bond, which is not required to have a subscribing witness, does not vitiate tho bond and' is. not forgery.

The case of *Blackwell*v *Lane,*4 Dev. & Bat. 113 cited and approved.

Appeal from the Superior Court,of Law of Washington County, at the Spring Term 1847, his Honor Judge Cald-wku, presiding.

The prisoner was indicted1 for forgery. *The*indictment contained two counts, but omflic second the Solicitor for the State entered a *nolle prosequi.*

The first count was as follows .*

“ WASHINGTON COUNTY, to^wit:

The jurors for the State upon their oath present, that heretofore, to-wit, on' the twonty-second day of February, A. D. 1841, Sally Allen and lames Gherkin signed and sealed their bond .obligatory, payable to Joseph B. Griffin, *207which said bond obligatory is in the words and figures following, that is to' say — “ $28. On or before the Jst of January, 1843, we promiso to pay Joseph B. Griffin, or order twenty-eight dollars, with interest from date, it being due for value received in hand, this 28th of February, 1841.

Witness, SALLY ALLEN, (Seal.)

JAIMES GHERKIN, (Seal.)”'

“And the jurors aforesaid, upon their oath aforesaid, do further present, that the said James Gherkin, with force and arms in the said County, before the delivery of the said bond obligatory to the said Joseph B. Griffin, to-wit, ori the day and year aforesaid, did of -his own head and imagination and by false conspiracy and fraud,feloniously, knowingly, and falsely make and forge, and did wittingly, knowingly and falsely assent to the forging and making the name of one George Stubbs, as a subscribing witness to the said bond' obligatory, so payable to the said Joseph B. Griffin, which said bond obligatory was afterwards, to-wit, on the day and year aforesaid, delivered to the sa'uf Joseph B. Griffin, with intent to defraud the said Joseph I>. Griffin, contrary to the form of the Statute in such caso made and provided, and against the peace and dignity of the State.”

The defendant’s counsel moved to quash the bill of indictment, because the offence therein charged is not indictable. Judgment of the Courtth-atthe samebc quashed. Whereupon the Solicitor appealed to the Supreme Court,

*Attorney General,*for the State.

*Heath,*for the defendant, submitted the following argument :

The enquiry, in this case, is; can a defendant be' guilty of forgery, by falsely adding- the name of a subscribing witness, to a *genuine*bond ; an instrument, that inquires no- subscribing witness ? Forgery is defined, by Mr. Jus= tice *Blachstone,*4 *Commentaries*248, *London Edition,*1844, to be “ the fraudulent making or' alteration of a written instrument, to the prejudice o-f another man’s right,” and, in *Note*1, *Page*247, *same Edition,*it is defined to be a fraudulent insertion, alteration or erasure', in any material part of a true document, by which another may be defrauded.” It is believed the facts of this ease do not come up- to either of these definitions of forgery; nor to- any established definition thereof. It is *208not the “false making,” &c. of any “instrument” or “document *f*for the Court has long since decided, *Blackwell*v. *Lane,*4 Dev. & Bat. 113, that the addition of the name of a subscribing witness to a bond, does not alter or destroy the instrument, even when made by the obligee, which, it is submitted, it would do, if it were forgery* In this case, who can be “prejudiced?” who “defrauded?” Not the obligors, for they *delivered*it as a genuine instrument, and one of them is the same individual, that is charged with the forgery ; not the obligee, for *it is delivered.*to him, as a genuine instrument, and is valid in his hands by such delivery by the obligors, since the bond required no subscribing witness. When it is said, that the addition of a subscribing witness to a *bill of sale of*a slave, or a deed of gift of a slave, or the false making of a will, with two subscribing witnesses, in this Country, or three, in England, is forgery, wo can understand it: it is because *these instruments are entirely inoperative without such subscribing witness, or*witnessesbuyjqnnot we under» stand, how the adding of that, to an instrument, that is not required by law, that makes it neither better nor worse, neither more nor less valid, and by which no person whatever can be “prejudiced” or “defrauded,” can be forgery.

A case recently occurred in Maryland, not yet reported, but which I had from the relation of Mr. *Spencer,*late Attorney General of that State, which sustains the defendant in his position. Upon the trial of a suit at law, the defendant in the-suit introduced a false receipt, against the plaintiff’s testator, the plaintiff having sued as executor. The body of the receipt and the signature were both in the defendant’s hand-writing, and were, without doubt, imitations of the hand-writing of the plaintiff’s testator: the defendant was indicted for forgery, and, on the trial for forgery, he produced a genuine receipt, from, the plaintiff’s testator for the same debt, that the false receipt was exhibited for: the Court held, *209that the false instrument was not a forgery, because it lacked a main ingredient of forgery, viz: the capacity to “ defraud it could not “ *defraud*or *prejudice”*the right of the plaintiff’s testator, or the plaintiff himself, *because the debt to lohich the receipt was applicable had been actually paid.*Much to the same purpose, is the case, *2d East’s P. Crown,*953, whore it was decided, that it was not forgery, in *England,*falsely to make a will *for land,*as attested by *two*witnesses, the law requiring three; for the reason, that no one could be “ *deceived*or defrauded” thereby, as “ no one of common understanding would give it credit.” If the definitions of forgery, here given, be correct, or, the case from Maryland, or from East, be law, then it is submitted, that the defendant cannot be held liable on this indictment, and that the judgment of the Court below, must be affirmed.

Daniel, J,

A subscribing witness is not material to the due making of a bond. The putting of the name of Stubbs to the instrument, as a subscribing witness, did not vitiate the bond, after it was subsequently delivered by the obligors to the obligee. The bond could have been established (if denied by the obligors) by proof of their hand-writing. *Blackwell*v. *Lane,*4 Dev. & Bat. 113. It was not an alteration In a material part of a true document, by which the obligee was or could be defrauded of the money mentioned in the face of the bond. We think the judgment was right.

Tee. Cukiaiu-Judgment affirmed.