#### *The State v. Washington Floyd.*

The *alteration*of a receipt for money, by erasing the word “ part,” and inserting, in lieu of it, the words “full up to date,” constitutes the offence of forgery under our Statute Law; and the counts in an indictment, alleging that the defendant did feloniously make, forge and counterfeit the receipt, would be supported by proof of such *alteration.*

Forgery is the alteration of a deed or writing, in a material part,[to the prejudice of another, as well as where the whole deed or writing is forged.

*Before*Wardlaw, X, *at*Newberry, March, 1850.

REPORT OF THE CIRCUIT COURT.

The defendant was indicted for forgery. At a previous term, the bill had been found by the Grand Jury, and he had been arraigned and admitted to bail. At this term, he was placed in the dock, and all the forms of a trial for felony, in the course of which he challenged, peremptorily, seventeen jurors) were gone through without objection. If the matter had been presented to me as *res*integra, I would probably have held that, under our Act of 1845, (which abolished the punishment of death in all cases of forgery, that by previous statutes had been subjected to that penalty, and substituted in lieu thereof whipping, imprisonment and fine,) forgery, in every case, whether embraced by any statute, or falling only under the common law, is now a mere misdemeanour.

The general purport of the accusation was, that the defendant had fraudulently altered a receipt or acquittance for money, which one Noah Harmon had delivered to him, by obliterating the word “part” therein, and inserting “full up to. date,” with a view to defraud the said Noah Harmon.

The indictment contained four counts, viz: 1. That the defendant did “forge” the receipt described *cont.form. stat.*2. That he did utter and publish the forged receipt, knowing, &c., *cont.form. stat.*3. That he did falsely “make, forge, .and counterfeit,” an acquittance for money described, *cont. form. stat.*4. That he did falsely alter the receipt described by obliterating *part*and inserting *full up to date.*The con-.elusion to this fourth count was, by some accident, altogether omitted, so that neither *cont. form. stat.*nor “against the peace and dignity of the State” was in it.

By the record of a case, *(Noah Harmon v. Washington Floyd,)*and the testimony of the foreman of the Jnry that tried that case, it appeared that, on the 28th July, 1848, N. H. commenced an action of assumpsit against W. F.: that with the declaration, which was for work and labor and money had and received, was filed a bill of particulars!, amounting to $288 50, and credited by $21, received 29th *59January, 1848; that a discount was filed for care and attention during sickness, &c., $67 50 ; that a trial was had at spring term, 1849, which resulted in a verdict for plaintiff $261 50, (probably 288 50 — 21—6,00 received from Chandler — 261 50 ;) and that, on that trial, the plaintiff and defendant both being present, the attorney of defendant, after proving the handwriting of N. H. to the receipt, offered the receipt in evidence.

Noah Harmon was then offered as a witness on the part of the State; for the defendant, objection was made to his admission, on the ground of interest, as he is the person whose instrument has been forged, as it is alleged. *The State*v. Whitten, and several other cases were cited for the defendant; and, for the State, were cited *Well's*case, and elementary writers, such as Phil. Ev. 121. Admitting the general anomalous rule, that the party by whom an inotrument purports to be made is not admissible as a witness in an indictment for forgery of the instrument, I thought that this case fell under the exception which arises wherever the interest has been determined, and the parly can no longer be supposed to have any motive to destroy an instrument by which he is not liable to be sued, or to incur any loss, or be deprived of any advantage. The witness was admitted.

Noah Harmon and W. R. Haas are rough Carpenters, who have always had their permanent residence in North Carolina, but, for five or six years, have spent their time at work in Newberry District. In 1846, Haas had a family, and Harmon boarded with him; now Haas has no family, but Harmon has one in North Carolina. In 1845, the two being in partnership, Haas made a contract to build a flour-house, and put up some palings, for the defendant, at a price which was not stated. For some want of preparation, the commencement of the work was delayed, and, in 1846, Har-man, for himself and Haas, as partners, made a new contract, which embraced three jobs, viz : the flour house, the palings,. and a gin-house, for one round sum, to be paid when the whole was finished — which sum, Harmon said, was $250, but the defendant, when they came to settle, insisted was $150. Harmon and Haas worked together on these jobs in 1846, (during which time the flour-house was finished,) and, at the end of that year, they dissolved partnership. Harmon paid Haas by the day for the work Haas had done under the contract, and Harmon went on alone to finish the jobs. In 1847, Harmon worked upon the jobs, and did for the defendant some work not embraced by the contract, which amounted to $15 50; and the defendant received for him, from one Chandler, $6 50, of which 50 cents was to be deducted for collection. On 29 January, 1848, when a small portion of the work on the gin-house and palings yet remained undone, *60Harmon, intending to visit North Carolina, applied to the defendant for money, and wished him, besides extra matters, to pay the whole $250. The defendant then insisted that the price stipulated by the contract was $150, and refused to pay that until the three jobs were finished; but paid to Harmon several distinct sums, which, together, amounted to $54 80, viz: 1. A note to Harmon by Charles Floyd, (who was dead, and of whom the defendant was administrator,) $25 55. 2. An account of Harmon against C. Floyd for $4 00. 3. An account of one Jones Bullock, against defendant, for $3 75. And 4. $21 50. For each of these four sums, a separate receipt was taken, all written by the defendant and signed by Harmon. The receipt as to the fourth was in these words : “ Received, January 29, 1848, of Washington Floyd, twenty-one dollars and fifty cents, for work done in 1847, in *full wp to date.*(Signed) Noah Harmon.” An inspection of the paper now shows that, at first, part, or some such letters, were written, and they having been scratched and partially erased, *full*was written over them.

Afterwards, about 14 April, 1848, Harmon having finished the three jobs, applied to the defendant for payment; defendant then had no money; when defendant had sold cotton, he said nothing to Harmon of paying anything, but had previously refused to acknowledge his liability for more than $150; Harmon then commenced suit, as before mentioned. In the bill of particulars which Harmon furnished to his attorney, he charges the three jobs 130 M 50 M 60 — $250 00

The particulars of work not in the contract as above mentioned, - - - - - 15 50

Money from Chandler, .... 6 00

And for extra work on the flour-house, in a shed and a cellar 15 k 2 — - - - 17 00

288 50

And credits money received, - - - - 21 00

267 50

At the trial before mentioned, the defendant’s attorney endeavored to procure a nonsuit, on the ground that the contract was a partnership one, upon which Harmon could not clone maintain suit; and, having failed in that, he, with some difficulty, and by resort to Harmon’s brother, proved Harmon’s han’dwriiing to the receipt above copied, and offered the receipt in evidence as a genuine paper; with what view ■did not appear by any direct testimony. On the present trial, it was contended, on the part of the State,' that the receipt had been offered to show payment of Harmon’s whole demand; on the part of the defendant, it was contended that it had been merely placed by the defendant in the *61hands of his attorney, as a paper connected with the suit, and, if used for the purpose imputed, was so used without instructions of the defendant; but that, in fact, it was introduced to show that there had been such payment of items that did not belong to the partners, that the suit could not be maintained; or to defeat the unjust demands for extra work done on the flour-house — to place everything else out of question, and narrow the inquiry to the dispute between $250 and $150. Soon as the receipt was produced, Harmon, to his attorney, pronounced it a forgery ; and, after waiting till the near approach of the next term, he instituted this prosecution.

No testimony was offered in defence.

The counsel for the defendant examined the Stat. of 5 Eliz. c. 14, and the Acts of 1736, 1801, and 1845, concerning the crime of forgery, and contended that, by the words of these Acts, and especially by the provisions which, in the prohibitions of the forgery of certain enumerated instruments, were made for the alteration of certain particulars in those instruments, and which elsewhere were made against alterations of certain other instruments, a distinction was created between fabrication and alteration, so that as to a receipt or acquittance for money, whilst the false making was embraced by statute, the fraudulent alteration was not. I felt the difficulty which arose from the cumbrous phraseology of our Acts; but thought that the provisions which had been adverted to, did not so affect the technical signification of the word “forge,” that the distinction, which was insisted on, could be supported. I, therefore, held that the fraudulent alteration of the receiot in question, was an offence contrary to statute; that there could be no conviction under the fourth count; that, if there was any count which charged a statutory forgery, judgment after conviction would be given according to the statute; but that, if no statutory offence was charged, there might be conviction and judgment at common law for a misdemeanor, notwithstanding the words *cont.form. stat.,*and notwithstanding the word *feloniously,*and the formalities which had been observed of a trial for felony.

I was decidedly of opinion that a case of guilty intent to defraud had not been established by the evidence. The various misstatements made by Noah Harmon, which were corrected by cross-examination, especially those concerning the reason why $21 50 was the sum fixed upon to be paid to him, and concerning the other receipts signed at the same time as the receipt in question, and his general manner, impressed me with a strong .suspicion that he was wanting either in candor or in a distinct remembrance of the circumstances which attended the receipt in question. The words of the receipt, as it now reads, seemed to me less adapted to *62express a general acquittance of the defendant from all ¿eman(jS) including the three jobs, than to indicate, awkwardly, that all demands for work and other matters, inclusive of the money from Chandler, that were payable at the date of the receipt, had been discharged. Without knowing what had been said in argument by the defendant’s attorney, on the trial of the case *Hrrmon*v. Floyd, and, of course, without charging the defendant for any thing thus said, I thought that the truth was probably this: after the defendant had, at first, written the receipt in “part,” it was, of his own motion, or at the suggestion of Harmon, altered before it was signed, so as to read, “in full to date” — either because “ part” seemed less suitable to show that it was intended to coverall the work of 1847, then complete, and the money from Chandler, and to bar demands for prior extra work; or because “ part” might have been thought to intimate that some portion of the contract price, none of which was paid, had been advanced, and it was desired to leave for future settlement that entire sum, and only that. When Harmon afterwards saw the receipt adduced, as he supposed, to bar his demand under the contract, he knew that he had signed nothing of which that use could be fairly made, and, forgetting what had been done, instantly conceived that the manifest alteration was a forgery.

The jury returned a verdict of guilty. After it was read, the foreman said, “ In the mildest form”- — which, I suppose, was meant to express the seuse of the jury that a result should be attained by which the ignominious punishment of whipping might be avoided.

The defendant appealed, and moved the Court of Appeals for a new trial, on the grounds:

1. Because Noah Harmon, who gave the receipt, was admitted as a witness.

2. Because the defendant was arraigned and tried for a felony, under an Act or Acts of the State, contrary to law.

3. Because his Honor charged the jury that it was an indictable offence, under the Acts, to make any alteration of a receipt.

4. Because his honor charged the jury that the defendant might be convicted for a forgery at common law, though the counts in the indictment are for a felony, and in the same form as if the punishment of death had not been abolished.

5. Because his Honour charged that the counts in the indictment, alleging that the defendant did feloniously make, forge, and counterfeit the receipt in question, would be supported by the proof of any alteration in the receipt, though genuine.

6. Because the alteration alleged was not forgery under *63any of the statutes of this State, and his Honor should have so charged the jury.

7. Because the finding of the jury, as alleged by the foreman at the time the verdict was rendered, was guilty at common law.

8. Because the evidence did not support any count in the indictment, except the fourth, which does not conclude by .alleging that the oifence was contrary to any statute or the peace and dignity of the State.

9. Because the finding of the Jury was contrary to the law, the evidence, and the explicit charge of his Honor.

*Irby arid Jones*for the motion.

*Fair, Solicitor,*contra.

*Curia, per*Withers, J.

The point raised by the first ground of appeal, we hold to have been definitely settled, that is to say, Noah Harmon was a competent witness in this cáse.

The question presented by the second ground for a new trial, which complains that the defendant was arraigned and tried for a felony, under statute, whereas the oifence was no more than misdemeanor, is not properly a question on the case; for it was no matter of objection on the circuit. The defendant has, certainly, taken no prejudice thereby; quite the contrary.

The material legal questions arising in the case we take to be:

1. Was the alteration of the receipt imputed to the defendant, the oifence of forgery under our statute law?

*2.*Was the offence of such forgery, or of uttering and publishing the instrument knowing it to be forged, legally set forth in *the*indictment?

The receipt was in these words:

“Received, January 29th, 1848, of Washington Floyd, twenty-one dollars and 50 cents, for work done in 1847, in *full up to date.*(Signed.) Noah Harmon.”

The Jury have found that, after the receipt was executed, the defendant deceitfully and fraudulently struck out the word “ part,” and wrote, in lieu of it, the words *“*full up to date.”

• The first question is, was this forgery? — or does it import that the defendant did “falsely make, forge, and counterfeit” an acquittance or receipt for money, with intent to defraud Noah Harmon? The equivalent question is, was the *alteration,*above specified, falsely making and forging the receipt set forth ?

Our statute of 1736, embracing the description of papers in question, is borrowed from 2 Geo. 2, ch. 25, and it does not use the word “alter” in relation to acquittances or *64receipts. That word is introduced in imitation of another British statute, in relation to other descriptions of writings. It is argued, hence, that as to receipts, the forging, or counterfeiting, or falsely making thereof, must be held to mean the entire instrument of writing; that, at any rate,- a forging by alteration must be alleged to be by alteration; and that proof of such forgery does not sustain a general charge of forging the whole paper.

This conclusion we must reject; It is consistent neither with sound reasoning on general principles, nor with adjudged cases.

The distinguishing characteristic of-forgery is, the crafty fraud and deceit whereby it is designed to injure some one; an offence which, when perpetrated through spurious writings, was noticed by the common law to a very considerable extent, as may be seen -in the well considered case of *The King*v. *Ward.*Many statutes have been passed, not so much, though partly to be sure, to enlarge the range of t.he common law as to the description of instruments that should be protected against the cunning perpetrators of this offence,' as to increase the weight of punishment that should follow conviction. Accordingly, the stat. of 5 Eliz. ch. 14, punished with death the forging of certain instruments, which it was an offence to forge, at common law.- In proportion as the advances of trade and commerce have invested certain instruments in writing, formerly known, or moré recently called into existence, with a consequence specially affecting individual and general interests, statutory provisions have drawn them within special protection; and such has been the legislative policy of England and South Carolina. Now, in regard to the subject matter of this indictment, the mischief is just as fully and conveniently perpetrated by one of various alterations, as it could be by fabricating the whole instrument. A note or a receipt is either genuine, or it is not. If it be falsely and fraudulently altered in a particular making, it speaks a different language, calculated to- produce a different result in its operation, to the prejudice of some one who is designed to be defrauded or injured thereby. The instrument thus abused is not that of the party whom it purports to bind; it was not made by him — but, to every reasonable intent or purpose, it is made by the person so altering it — ■, if fraudulently so made, it is forged by him: and, in the reason of the thing, there can be no difference whether the word “ forge” be spoken by a statute or the common law. This is true even in the technical sense, for, if a party be sued on such an instrument, a plea of the general issue, implying that he never made it, that it is not his note or bond, for example, would be sustained by proof of an alteration in an important particular.

*65The authorities reinforce the general reasoning, and we believe they are, in turn, well sustained by it. *Dawson's*case, (2 East. P. C. 978, which is derived by Foster from Lord King’s MS.) was decided as early as 3 Geo. 1. He was indicted under the 8 & 9 William 3, ch. 20, sec. 26, intended to protect the Bank of England, and punishing with death any person convicted of “forging or counterfeiting the common seal of the corporation, &c., or any bank note of any sort whatsoever signed by the said Governor,” &c. The indictment laid a forgery of the whole bank note: the proof was that he altered the figure 2 to 5, so as to make £520 instead of £220. The ten judges held that this was forging and counterfeiting, *(fabricavit et contrafecit*was the language of the record, vide 1 Strange 19.) forgery being the alteration of a deed or writing, in a material part, to the prejudice of another, as well as where the whole deed or writing is forged: that was not law in this respect; for *non assump-sit*might be pleaded to such a note.

This was followed and reaffirmed by *Teague's*case, decided in 1802, and under the Statute 7 Geo. 2, ch. 22, which used the word “ alter,” as well as forge. And, although Teague was convicted of uttering and publishing, yet it was for uttering and publishing a “ *forged"*bill, which, by the proof, was only “altered” from £10 to £50; and, upon the point raised there, as it is here, now under consideration, all the Judges held that the indictment was good in stating that Teague forged and uttered, knowing it to be forged. It is palpable that nothing can he drawn from the conviction, under the second count, except that altering is forging, for, if not, Teague did not utter a forged bank bill. These two cases show that whether the language be forge, or forge and alter, the result is the same. It may be that when the party is charged with “altering,” where that word is not in the statute, (as it is not in ours respecting the paper now in question,) it may be necessary to allege, also, enough to show that the alteration is, in some particular, calculated to work deception, fraud and injury, and, consequently, in some material particular.

The principle of the cases of *Dawson*and *Teague*has been reaffirmed, at a recent period, in England. The indictment charged that the prisoner did *feloniously*forge a certain receipt for money, which was copied. It was a receipt of the high constable to the churchwardens and overseers of a parish for their share of county poor rates. In its genuine form, it specified the sum of £3 *5s. 9d.*The defendant had altered *5s.*to 15s. It was held, (upon objection that the receipt was altered and not forged,) that the defendant had *forged*the paper, as charged, although the language of the statute was, “ If any person shall forge or *alter,"*&c. It is *66well to remark here that the offence was charged as a felony, although the punishment was to be transportatian for life, or for a term not less than seven years, or imprisonment for a term not exceeding four nor less than two years.

It is not doubtful that the best interpretation of a statute is to construe it as near to the rule and reason of the common law as may be, and by the course which *that*observes in other cases. This has been familiar judicial language at all times. By the common law, as interpreted by Blackstone, forgery is the *“*fraudulent making or alteration of a writing, to the prejudice of another’s right.” ■ We have no reason to distrust the definition, since many text writers, of good repute, have adopted it; and it has been sanctioned by our own Court in the case of *The State*v. *Waters.*Now, when our statute uses the word “forge,” why shall we give it an interpretation more restricted than that adopted and taught by the common law ? Why shall we hesitate to follow the light of the cases already cited, often approved, and fortified by considering that it is our duty to advance the remedy where the obvious mischief to be cured invites its application?

We cannot favor the notion that the Act of 1845 intended to abrogate anything in our statute book, previously of force, on the subject of forgery, except only the measure of punishment. It was necessary to make a recitation of the *classes*of offences, under the general head of forgery, in several acts, to which, severally, the mitigated and substituted penalty was to apply. It spoke of offences under the law then existing, and of convictions afterwards to be had under the same law. The definition of the offences, respectively, and the declaration that they were such, have been left precisely as they were before.

2. What has been already said prepares us to give an answer to the second question to be discussed, touching the form of the indictment. It seemed, indeed, hardly to be contested that if altering was forging, in the sense of the statute, the indictment was sufficient. The offence, in the present case, is charged in the words of the statute. The form is such as is recommended by Arch bold, in his Crim. Pleading; it complies with the instruction of Chitty, as follows: “ In all indictments for the alteration of a written instrument, where the Act does not expressly provide for altering, the offence should be charged as a forgery in the words which the legislature have employed. And even though the Act has the word *alter*as well *as forge,*the offence may be laid as if the whole instrument had been counterfeited, for any alteration of a material part is a forgery of the whole; but it is more usual, at least in one Court, to state the particular alteration charged as criminal.’’ East, in his Pleas of the Crown, observes: “But the indictment need not state the *67manner in which the party is to be defrauded, for that is matter of evidence.’’ He cites cases to support the doctrine., This rule must follow as a consequence. To alter the paper is to forge it entire: *that*is declared to be the offence, if done to deceive. When the forgery, therefore, is announced with the allegation of the intent, the offence is completely described. It may become a very material question, in evidence, whether the intent was to deceive any one, and the fitness of the crafty means employed to work that result, must be shown in the proof. Hence it becomes important for the State to show the materiality of the alteration towards the end of fraud and imposition ; but the *modus operandi*in that respect is no necessary part of the indictment. How that question might be as at common law, we have not stopped to inquire ; for we hold this party to have been charged with a statutory offence.

The conclusion is, that the indictment is in law sufficient.

Yet the Court has determined to award a rehearing to the defendant. Nor is any inference to be deduced from this of the opinion of this Court upon the facts. We are not forgetful of the degrading punishment to which the defendant is now liable, and our only aim is, to afford an opportunity to recommit his case to a jury, in deference to the grave doubts entertained by the Judge who presided at the trial.

A new trial is therefore ordered, without prejudice.

Evans, Wardlaw, Frost, JJ., concurred.