CHARLESTON.

#### State *v.*Duffield.

Decided March 16, *1901.*

1. Ceiminal *Law*— Verdict.

The record shows that Henry Hunt is one of the jury impaneled and sworn in the case, and the verdict is signed, “W. H. Hunt.” This will not affect the verdict, (p. 275).

2. *Fokgeey*— Indictment—Variance.

An indictment for forged indorsements on a note which is set out in *haec verba,*and which- note, as it appears in the indictment, purports to he signed “J. F. C. Duffield,” as maker. A similar note signed hy J. F. C. Duffield, as maker being offered in evidence in support of said indictment. *Held,*variance im-. material, (p. 279).

3. *Indictment*— Description *of Forgery Act.*^

In a prosecution for forging, or attempting to employ as true any forged instrument, it is sufficient to describe the same in the indictment in such manner as would sustain an indictment for the larceny of such instrument, (p. 280).

Error to Circuit Court, Roane County.

J. E. C. Duffield was convicted of forgery, and brings error.

*Affirmed.*

J. *W.*C. ARMSTRONG, A. E. Kenney, and Oi-iaRLes E. Hogg, for plaintiff in error.

EdgaR P. RuckeR, Átty. Gen., and Luthee. C. Anderson, for the State.

McWhorter, Judge:

J. F. C. Duffield was indicted in the circuit court of Roane County for forging the names of A. J. Arnold and C. L. Moore by endorsement thereof on the back of a note of which the following is a copy: “Twenty dollars and fifty-five cents. Spen*275cer, W. Va., Nov. 13, 1896. Ninety days after date I promise to pay to the order of A. J. Arnold twenty and fifty-five one hundredths dollars, value received. Negotiable and payable at the Bank of Spencer, Spencer, *W.*Va. J. F. C. Duffield,” and uttering and attempting to employ as true the said note, and said forged and fraudulent endorsement. On the 31st of August, 1900, the defendant. having entered his plea of not guilty, a jury was impaneled, and the jury having heard the evidence and arguments of counsel returned a verdict of guilty. Defendant by his counsel moved the court to set aside the verdict and grant him a new trial, because the verdict is contrary to the law and the evidence, and because of certain rulings of the court during the progress of the trial before the jury, which motion was overruled, to which ruling of the court the defendant excepted and took three several bills of exceptions, which were saved to him in the record. The first assignment of error, that it does not appear from the record that there was a finding of the indictment by the grand jury, has been corrected, the record having been supplied on writ of *certiorari.*The second assignment is that the verdict is signed by W. H. Hurst, as foreman of the jury, when the record discloses that no such person was impaneled as one of the jury. It is true that the printed record shows that W. H. Hurst signed the verdict, and that no person by the name of Hurst was impaneled on the jury, but an inspection of the manuscript record shows the ' name of W. H. Hunt as signing the verdict, and the name Hurst in the printed record was merely a typographical error. The name of Henry Hunt appears among the jurors impaneled. There was but one Hunt on the jury, and it is not at all probable that after the jury was sworn that Henry Hunt got out of the jury box and *W.*H. Hunt, another and a different person took his place in the presence of the court and its officers. The verdict was rendered on the same day the jury was impaneled, and if the jury left the court room before retiring to consider of the verdict, they were in the custody of the sheriff and his deputies, who were sworn to keep them together and to permit them to have no communication with any one concerning the matter before them. The juror Hunt evidently was called Henry, the name by which he was commonly known, and when he wrote his name to the verdict, he did so by using his initials only. There is scarcely a more common Christian name than *276that of William Henry, and it is almost certain that this was the full name of Henry Hunt, the juror in this case. *Younger*v. *State,*3 W. Va. 579, is invoked to support this assignment of error, in which case the name of P. B. Shrively was signed to the verdict, when no man by the name of Shrively was impaneled on the jury, and no name anything like it. One P. B. Smith being the same initials only, was the nearest approach to it. *State*v. *Morgan,*35 W. Va. 360. The third assignment of error is based upon the fact that the court obliterated a part of the 'endorsement contained on the note upon which the charge of forgery in this case is predicated, and then allowed the note so obliterated to be oifered in evidence,' as shown in bill of exceptions No. 3. The endorsement so obliterated was no part of the note or. endorsement for the purpose of using it, but was simply an affidavit written on the back of said note, made and signed by A. J. Arnold, one of the alleged endorsers of said note, to the effect that the signature on the back of said note was a forgery, that he did not sign his name, neither did he authorize his name to be used in said note. Defendant’s counsel cites *State*v. *Johnson,*36 Iowa, 407, 96 Am. Dec., 158, in support of his assignment, where it is held that, “No technical words, such as Tenor,’ etc., need to be used to express that copy of instrument is set out in the indictment. For this purpose the words ‘of the purport and effect following’ are sufficient, at least, when the indictment then does, in fact, set out a copy of the instrument.” It was wholly unnecessary, in case at bar, to set out the affidavit endorsed on the back of the note, as it was no part of the instrument. *Burress Case,*27 Grat. 934 (944); *Perkins’ Case,*7 Grat. 651. The endorsements used.for the purpose of negotiating the note and procuring the proceeds thereof from the bank were not obliterated. The note with the endorsement as used in its negotiation was proper to go in evidence if it corresponded to that set out in the indictment and the defendant was not prejudiced thereby. The fourth assignment, because said indictment undertakes and does not set out *in haec verla*or literally, the note charged to have been forged, and the name appended to the note described in the said indictment is that of *‘J.*F. C. Duffield,’ while the name of the party appended to the note read in evidence to the jury is that of *‘J.*F. C. Dufield,’ thus showing a clear variance between the allegation of the indictment and the proof offered to *277support it.” The indictment contains four counts, and the note, with its fraudulent endorsements alleged to have been forged and uttered set out in *baec verba*in each count and in each count described as being signed “J. F. C. Duffield.” On the trial the State offers in evidence a note identical with that described in the indictment, except that it is signed by “J. F. C. Dufield.” In *Crawford*v. *State,*40 Tex. Crim. Rep. 344, it is held that, “Where an indictment -charges Jasper Crawford with passing a forged instrument, and the instrument itself shows that it purports to have been drawn in favor of Jasper Crawford, this would constitute a variance as to the name.” Also *State*v. *Fay,*65 Mo. 490, it is held that although their statute dispenses with the common law rule which requires that an indictment for forgery should set out the instrument alleged to be forged in *haec verba;*“but it is still necessary that it should be described accurately; and very slight inaccuracies will be fatal. An indictment described the instrument alleged to be forged as a note for sixty dollars, signed with the name of James C. Orr. The instrument offered in evidence was a note for sixty dollars bearing interest at ten per cent, from date and signed by J. C. Orr. *Held,*a fatal variance, both as to the name of the supposed maker and the liability which the instrument purported to have created,” and in *Agee*v. *State*113 Ala. 52, the indictment set out the forged instrument, an order in favor of “King Jackson” for goods, directing the bill therefor to be charged to a designated person “on merchandise,” an instrument offered in evidence which is an order for goods in favor of “Kinge Jackison,” and directs the bill to be charged to the same designated person “on mchin-dise” is held not to be the paper laid in the indictment, and is inadmissible in evidence, “the variance between the two papers being fatal.” And in *State*v. *McEwen,*151 Ind. 485, it was held, “In a prosecution for larceny proof that one of the owners of the stolen property was Franklin A. instead of Frank A., as charged in the indictment would constitute a fatal variance,” yet it is stated in the opinion that if the record had shown by the evidence that “Franklin A.” was commonly known by the name of “Frank A.” the variance would have been cured. In *Sullivan*v. *People,*6 Col. 458, “The allegation in the information was that the money alleged to have been stolen was the property of Michael Johnson, and the' proof was that it belonged to Mike Johnson. *Held,*that the *278variance is fatal.” It was said in that case, “It is essential that the information should set forth the name, if known, of the owner.of the money alleged to have been stolen; and the name having been set forth, that it should be proved precisely as made. The law gives the accused the right to know exactly what he is required to meet, to the full extent of the ability of the prosecutor to inform him; and he cannot be confronted with one charge and convicted upon another.” In *State*v. *McDevro,*23 Tex. App. 429, “The complaint alleges the surname of the accused as McDevro, the information as McDero. *Held,*that the variance is fatal.” *State*v. *Street,*1 Am. Dec. 589; *Com.*v. *Brickley,*145 Mass. 181; *Willis*v. *State,*24 Tex. App. 487; *State*v. *Nichols,*39 Tex. Crim. Rep. 80. In *Westbrook*v. *State,*23 Tex. App. 401, it is held that, “If the indictment sets .out the alleged forged instrument both by its purport and its tenor, any repugnancy between the two allegations is fatal to the indictment. The “purport” clause in the indictment, in this case, alleged the name of the injured party to be “C. J. Chapman,”. whereas the “tenor” clause alleges the name to be “C. *J.*Chatman.” *Held,*that the obvious repugnancy between the two is fatal to the indictment.” In *Brown*v. *People,*66 Ill., where the indictment sets out the name signed to the forged instrument as “Otha Carr,” it was held not to be supported by the instrument offered in evidence signed by “Oatha Carr.” In *Murphy*v. *State,*6 Tex. App. 554, it was charged that the forged instrument was signed “Pat. Wheelan,” and proved that it was signed “P. Wheelan” or “D. Wheelan,” and the court held this was a fatal variance, and the judgment of conviction was reversed. See also *State*v. *Woodard,*56 Kan. 217.

On the other hand in *State*v. *Bean,*19 Vermont, it is held that “In an indictment for forgery a variance between the count and the forged instrument, in the spelling of a name, is unimportant, if the same sound is preserved.” It is there said, “the difference between “Herriman” and “Harriman” is unimportant; it is obviously *idem sonans*which makes the names the same in law, for no man is to be acquitted in consequence of bad spelling, merely, in the indictment, if substantially the same sound is preserved.” In *Santolini*v. *State,*6 Wy. 110, (71 Am. St. Rep. 906), it is held, “there is no such variance between the name ‘G. W. Edwards’ as averred in an information for forgery, and the name ‘G. W. Ewareeds’ as signed to the *279alleged forged instrument, as to require the exclusion of the latter as inadmissible in evidence; but the effect of such variance is for the jury to determine, subject to the rule' that if such names are not *idem sonans*the variance is fatal.” So in *Regina*v. *Wilson,*2 Car. & Kin. 527, where it is held, “In a ease of forgery the name of John McNicoll signed to the forged instrument was, in the setting out of the forged instrument in the indictment, written ‘John McNicole,' not to be a variance.” In *State*v. *Gryden*44 La. Annual 962, (32 Am. St. R. 358), it is held that, “immaterial variances resulting from clerical inaccuracies in transcribing and misspelling a name forged are not necessarily fatal to the indictment. Therefore, setting out in the indictment the name forged as that of J. A. Gandy is not fatal, though in the original instrument such name has much more the appearance of Jo Jandy, if such instrument is very illegible and was represented by the accused to have been written by Mr. Gandy.” In the opinion of the court in that case it is said after quoting Wharton on Crim. Pl. and Pr., “The great rigor of the old English law in this respect was one of the consequences of the barbarious severity of the punishment imposed. A more humane system of punishment was followed by a more rational system of pleading,” says, “Immaterial variahces resulting from clerical inaccuracies in transcribing and misspelling even of the name forged, are no longer necessarily fatal.” See also *People*v. *Philips,*70 Cal. 61. Cases holding the same way might be multiplied, as they might be also on the other side, but it seems that the decided weight of the authorities in Virginia and our own State favor the contention that the slight variance in case at bar is immaterial, and that the note was properly admitted in evidence. *Mabry’s Case,*2 Va. Cases 296; *Halkenis’ Case, Id.*4; *Burress’ Case,*27 Grat. 934. *State*v. *Henderson,*29 W. Va. 147, syl. 7, “The receipt described in the indictment agrees with the receipt offered in evidence at the trial with the exception that the endorsement in the latter, ‘Witness Susan M. Armstrong,' is omitted from the former; *Held,*no material variance.” Only where the variance is material should the instrument be excluded as evidence. *State*v. *Fleshman,*40 W. Va. 726. And in harmony with the latter view of the case is section 6, chapter 158, Code, “In a prosecution for forging, or altering or attempting to employ as true, any forged in*280strument or thing, and in a prosecution for any of the offenses mentioned in chapter 146, it shall not be necessary to set forth any copy or *fdc simile*of such instrument or other thing, but it shall be sufficient to describe the same in such manner as would sustain an indictment for stealing such instrument or other thing, supposing it to be the subject of larceny.” Counsel for defendant admits the fifth assignment is not well taken. As to the sixth assignment, “Because there is no evidence showing that the defendant if he did commit the offense charged in said indictment committed the same in the county of Boane.” The note with the forged endorsements was used and discounted in the bank at Spencer, in the county of Boane. The cashier who testified in the case had no definite recollection of the transaction in the bank of the discounting of the note in question, but remembers of defendant being present in the bank having notes discounted. About two weeks after the protesting of the note the cashier had a letter from the defendant, dated at Sutton, February *26,*1897, in reply to a letter of the cashier, calling his attention -to the note, asking the cashier, “not to put the note out for a short time and I will pay it off with ten per cent, interest, would have saved protest had it not been for the sickness of my wife.” On the 12th day of February, 1897, defendant wrote a letter, dated on this day at. Sutton, West Virginia, to the endorser, A. J. Arnold, informing him that he sometime ago was at Spencer when he had only one and one-half day to get back home and had a note of twenty dollars due in bank “and not meeting my endorsers there as they had promised, and not having time to see them, also not being able to secure any new ones, used your name in the renewal of the same, which of course was- wrong, but relied on you not caring from the fact that I had been honest and you a warm friend of mine, and are still the same, and intend to pay the same in a few days. The note is now due and will be protested and I don’t want you to be of opinion that you will be molested in the matter. * * * Would have written you sooner about the matter but had forgotten it until a few days ago when I got a dun notice. Now if this is not all 'right with you let me know by return mail and I will make it all right with you. I am worth twenty times that amount here at Sutton and if you doubt it write to the clerk of the county court and ask him if I own a house and lot worth from one thousand seven hundred dollars to two thousand dol*281lars, with a small debt against it. Let me hear from yon soon.” And on the same day wrote a similar letter from Sutton to C. L. Moore, the other endorser, telling him about being in Spencer and his endorsers failing to meet him as they had agreed, had used his name in renewing a small note, stating that he expected it would be protested, as he could not go to attend to it. These letters contain a sufficient confession that the crime was committed at the bank in Spencer. He begins his letter to Moore as follows: “Am humble to tell you that I used your name in renewing a small note in Spencer bank, and the reason I did it was this: I was in Spencer and my endorsers were not there as they had agreed,” etc. This makes it clear that it was done in Spencer, and the trial court sitting in Spencer trying the ease will take judicial notice that Spencer is in Eoane County. In *State*v. Hobbs, 37 W. Va. 812, syl. 4, “It is not necessary that the proof should be direct that the crime was committed in the county charged. It is enough if the proof be inferential, but .sufficient.”

This case is cited by defendant’s counsel, but I cannot see why, as it certainly does not help their case. In their brief defendant’s counsel makes a further assignment of error. “That the forgery of the endorsement or the utterance thereof was not to the prejudice of anyone, and that therefore the offense charged was not made out by the proof in the case,” and cites *Barnum*v. State, 45 Am. Dec. 601. “Evidence tending to show that the instrument forged could not prejudice the rights of any one under any circumstances is competent to go to the jury,” and their argument is to say the least unique. They Say, “It appears in evidence that the bank of Spencer where the note in question was payable already held a note exactly like the one in this ease, except for a larger amount, the same endorsements on which had already been forged by some one — that- is, the bank held a worthless piece of paper for a larger amount than the one upon which the prisoner was indicted, and the prisoner obtained this larger worthless piece of paper from the bank by the exchange of another worthless piece of paper of a smaller sum, paying the bank as it were, a premium of four dollars for the exchange. See the evidence of O. B. Wetzel at pages 23, 24 of the printed record. The endorsers were certainly not liable on the former note, nor could the bank have enforced payment thereof against them or either of them. The former note was for twenty-four *282dollars, -while the one in question was for less, there having been paid to the bank thereon the sum of four dollars. 'Now when the bank surrenders a forged piece of paper for another piece of the same character, who is injured and how, and wherein • consists the intent to defraud ?” It amounts to about this: A. steals a horse from B., worth one hundred dollars — he after-wards returns the horse to the stable of B. and takes and steals one in its place worth only seventy-five dollars — B. is certainly not prejudiced by the last transaction, but as far as A. is concerned it amounts to this, he has stolen two horses instead of one. The judgment will be affirmed.

*Affirmed.*