#### Commonwealth v. Cochran.

(Decided May 24, 1911.)

Appeal from Bullitt Circuit Court.

1. Indictment — Uttering Forged Writing — An indictment for utter-ling a forged writing must state the acts constituting the uttering and not the forging of it. It is immaterial who committed the forgery or how it was done. The acts constituting the uttering are the gravamen of the offense.

2. Same — An indictment for uttering a forged paper must set forth an instrument, which, if true, would' he of ,some legal efficacy, since otherwise it has' no legal tendency to defraud.

3. Same — Affidavit—An affidavit subscribed' by the affiant below the name and certificate of the officer before whom the affidavit was made, has no apparent legal efficacy, under section 551 of the Civil Code of Practice, which requires that every affidavit shall be subscribed by the affiant, and the certificate of the officer or person before whom it is made shall be written separately following the signature of the affiant.

*808JAMBS BREATHITT, Attorney General, CHARLES H. MORRIS, for appellant.' ’ ,

.OARROLL & -CARROLL and BEN CHAPEZE for appellee.

Opinion op the Gotjbt by

Judge Milleb

Affirming.

The appellee was indicted for the crime of uttering and publishing a forged writing, knowing it to be forged, which is copied into the indictment, .and consists of an affidavit, which reads as follows:

> “The affiant, Carrie Cooley, says she resided on 34th street, between Garland and Broadway, in Louisville, Kentucky, that she. is a single person, 34 years of age, and not a-housekeeper and she is worth ($400) four hundred dollars or more and she owes no debts, not indebted to any person- in any sum — and no one is dependent on her for support.

> “The affiant, Carrie• Cooley, says the statements in the affidavit are true.

> “Subscribed and sworn to before me this September 24th, 1909.

> Tom Cochran, Examiner for Bullitt County.

> “Cabbie Cooley.”

In compliance with the rule of law that requires the indictment to state the acts constituting the uttering, and not the forging of it, the indictment charges that the uttering and publishing of the forged writing was done by producing the affidavit to County Judge Hays and representing to him that it was the genuine affidavit of Carrie Cooley, when in fact, it was a forged writing, and was not the affidavit of Carrie Cooley, and thereby procuring said Hays to approve and take a worthless bond for the appearance of W. H. Cooley at a subsequent term of the court, whereupon he was released from jail and never answered at said subsequent term of the court. The indictment charges that said bond was forfeited, and is worthless, and the Commonwealth was defrauded out of the sum of $200, the amount of said bond. The circuit judge sustained a demurrer to the indictment, and the Commonwealth appeals. The indictment was found under section 1188, of the Kentucky Statutes, which reads as follows:

> “If any person shall forge or counterfeit any writing *(*whatever, whereby fraudulently to obtain possession of *809or to deprive another of any money or property, or canse him to he injured in his estate or lawful rights, or if he shall utter and publish such instrument, knowing it to be forged and counterfeited, he shall be confined in the penitentiary not less than two nor more than ten years.”

The indictment does not specify in what respect the affidavit is a forgery, or the facts which constitute the forgery, and it is not necessary that it should be so alleged, although the forgery must be proven upon the trial.

In Lockard v. Commonwealth, 87 Ky., 201, the court said:

> “An indictment for uttering a forged writing must state the acts constituting the uttering, and not the forging of it. It is immaterial who committed the forging, or how it was done. The falsity of the paper is merely a fact necessary to the existence of the offense. If it be forged and one so knowing utters it as genuine, he is guilty. The acts constituting the uttering are the gravamen of the offense.” Flaugher v. Commonwealth, 1 Ky. Law Rep., 120; Purvis v. Commonwealth, 13 Ky. Law Rep., 744.

It is necessary, however, that the indictment must set forth ah instrument which, if true, would be of some legal efficiency, since otherwise it has no legal tendency to fraud. Commonwealth v. Tabor, 31 Ky. Law Rep., 841.

“Forgery,” says Bishop on' Criminal Law, Vol. 1, section 572, “is the false making or material altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.” This definition was approved in Commonwealth v. Wilson, 89 Ky., 159. If, therefore, the forged instrument is of no apparent legal efficacy, it is, in law, no forgery, and in using it, one will not be guilty of uttering a forged writing. If the. affidavit, which upon its face purports to be the affidavit of Carrie Cooley, had never been subscribed by any one, or having been signed by Carrie Cooley had never been sworn to by her before an officer authorized to administer an oath, it would have imputed no efficacy, and would have had neither real nor apparent worth. And, if for any reason it manifestly had no verity as a legal docu*810ment in obtaining tbe bail bond, tbe appellee can not be found guilty.

In tbe alleged forged affidavit of Carrie Cooley, ber name appears beneath tbe name of appellee who, as examiner for Bullitt County, administered tbe oatb to Carrie Cooley; and, for that reason it is contended this case comes within tbe rule above announced concerning impotent writings.

Section 544 of tbe Civil Code defines an affidavit to be a written declaration, under oatb, made without notice to tbe adverse party, while section 468 of tbe Kentucky Statutes provides as follows:

> “Where tbe law requires any writing to be signed . by a party thereto, it shall not be deemed to be signed unless tbe signature be subscribed at tbe end or close of such writing.”

Finally, section 551 of tbe Code provides as follows:

> “Every affidavit shall be subscribed by tbe affiant; and tbe certificate of tbe officer or person before whom it is made shall be written separately, following the signature of tbe affiant, and shall be proof of the time and manner of tbe affidavit being made.”

Tbe affidavit, which is tbe foundation of tbe indictment in this case, clearly violated tbe requirements of the statutes above quoted, and was without even apparent efficacy. Tbe county judge, upon a mere inspection thereof, could have seen that it could not have been made as required by tbe express requirements of tbe statute; and it could not, therefore, be said to have misled any one to .the injury-.of bis estate or lawful rights. In order for one to successfully -rely upon tbe fraudulent misrepresentations of another, it must appear that tbe injured person not only relied upon the misrepresentations, but that be bad tbe right to rely upon them. Tbe law plainly said 4bat tbe pretended affidavit of Carrie Cooley was no affidavit; and, that being true, the Commonwealth, through its county judge, bad no right to do any act upon the faith of it. Simms v. Simms, 88 Ky., 642.

Judgment affirmed.