#### The State *v.*John M. Greenlee.

From Burke.

At common law to constitute forgery, the intent to defraud must either be apparent from the false making, or become so fay extrinsic facts. Therefore an indictment which charged the false making to haV' been in the alteration of an order, given by the Defendant, without charging that the alteration wasmadeafteritwas circulated and had been taken up by him, was held to be fatally defective.

The. Defendant was tried upon the Fall Circuit of 1827, before his honor Judge Norwood, on an indictment consisting of two counts, the second of which only is material, and is as follows :

*“*And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said *John JM. Greenlee,*of &c, on &c. with force and arms, in &c. being indebted to one *William Ainsworth,*in the sum of thirty dollars, and having funds in the hands of one *James Avery,*of &c. did then and there write an order to the said *J. A.*requesting him, the said *J. A.*to pay to him, the said *W. A.*the said sum of thirty dollars ; the particular date of which said order is to the Jurors now here sworn unknown, which said order, as near as the Jurors now here sworn can describe, was as follows, that is to say :

Mr. *J. A.*

Please to pay *W. A.*thirty dollars, and this shall be your order for the same, JOHN M. GREENLEE.

With a memorandum thereunder written, and signed by the said *John M. Greenlee,*in his own proper name, which said underwriting is as follows, as near as the’jurors now here sworn can describe, that is to say :

N- B. Mr. *A.*has receipted *James Greenlee*for the same.

JOHN M. GREENLEE.

And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said *John M- Greenlee,*afterwat ds &c. with force and arms in &c. the said order and memorandum aforesaid feloniously did *524alter, and cause to be altered by then and there feloniously and falsely making,•'forging and adding the word *to*between the words, *has*and *receipted,*and that he the said *John JM Greenlee,*did then and t‘)ele obliterate the letters *e*and *d,*the two last letters in the word *receipted'*before written, in the said written memorandum afores.id, whereby the said order, and writing under the same, became altered, and the word *receipted*before written in the same, by destroying the said two last letters *e*and *d*so falsely destroyed & forged as aforesaid, became *receipt,*and also by then and there falsely & feloniously making, forging and adding the word *to*between the word *has-*and the word *receipted,*before also written, in the said order and memorandum, by reason of which said forging and adding so falsely made,, forged and added as aforesaid, the said underwritten memorandum became in fact, and did signify, that the said *W. A.*had thereafter to give the said *James Greenlee*an acquittance and receipt for the same thirty dollars aforesaid, which said order and memorandum thereunder written, so feloniously and falsely altered and caused to be altered, is as follows, as near as the Jurors now here sworn can describe, tnat is to say:

Mr. *J, A.*

Please to pay *Wl A.*thirty dollars.

JOHN M. GREENLEE'.

N. B. Mr. *A. has to*receipt *James Greenlee*for the same.

JOHN M. GREENLEE.

With intention to defraud, the said *W A.*of the sum of thirty dollars, contrary to the statute in that case made and provided, and against the peace and dignity of the State.

The Defendant was found “ not guilty of ifie forgery *M*whereof he stands charged, but guilty of the forgery “ in manner and form as charged against .him,.at com- *(<*morí law.’*

Judgment for the State was rendered upon the verdict,, and th>- Defendant appealed.

*Badger,*for’ the 'Appellant,

moved’ in arrest of judgment, and contended that the indictment did not set forlh any offence either at common law, or under any statute, it being no offence to alter a person*» own no.te after it was taken up, provided it was not again put in circulation, and that the indictment contained no averment, of any attempt to circulate the order, after it was taken up by the Defendant.

Qevereux, for the State, declined arguing the case.

*525Henderson. Judge.

The false making of. certain writings mentioned in tiie statute, vi ith an *intent*to defraud, constitutes the offence of forgery, under the statute. At common law, the writing must have a ten-deucy to injure. That tendency must be apparent to the Court; it may be apparent upon the face of the transaction, or it may be made so by the aid of additional facts. To forge a deed, is an instance of the kind fitst mentioned. Its tendency to injure is apparent; it requires tlie statement of no additional fact to make that appear. An instance of the latter is, where I make a deed to A, and afterwards one to B, for the same property, and antedate the latter deed, so as to overreach the date of the former. The making the former deed is part of the offence at common law, and must be shown, otherwise, the tendency of the latter deed to injure does not appear. But perhaps this case affords a better illustration of the principle. The Defendant’s altering an order drawn by himself on *Avery,*in favor of Ainsworth, does not, upon its face, import an injury, neither in its tendency does it injure any one. It may be a proper and g necessary act; but to alter it after it has been circulated, and then to alter it so as to make it different from the truth, as in this case, and thereby to entitle biinseif to a double credit for its amount, one upon giving the order on *Avery,*and another upon *Ainsworth’s*receiving the money from him, shews that the alteration tends to the injury of *Ainsworth;*and if these be the facts, they should have been averred in -the indictment, and proved on the trial. Whether they were proved before the Jury, we do not know, and it is entirely unimportant whether they were, or net — they are not charged. The indictment is therefore defective* for in them, in connexion with the alteration of the order, the criminality consists. Without them, the act is harmless. • With them, it is highly criminal. — 1 think, therefore, that the judgment should be arrested.

Per Curiam. — Judgment reversed.