State v. Cooper , 5 Day 250 ( 1812 )

Swift, J.

This was an information for forgery, and uttering a false order, as true, knowing it to be false.

The court charged the jury, that if they found the prisoner made and passed the order, it wafe forgery ; though Uolchiiss, in whose name the order was drawn, had no authority to make such order. For this direction of the court, a new trial is moved for.

It is contended, that the words in the statute, on which this prosecution is founded, vis. “ or other writing to prevent equity and justice,” are so uncertain, that they ought to be rejected ; and as an order is not comprehended under the writings enumerated in the statute, this prosecution cannot be maintained. It is a sound principle, that laws for the punishment of crimes, should be so explicit and certain, that no man may do an act for which he may be punished, without knowing that such act is prohibited. But as it would be impossible to specify every act which is criminal, and ought to be punished, it is necessary that the legislature should make use of general terms, in designating crimes.

In the present case, it was difficult for the legislature to enumerate every thing which may be the subject of forgery. After mentioning those which were in common use, they add the general clause, “ or any other writing to prevent equity and justice.” If this description be uncertain, it ought to he rejected. If it be uncertain whether an order comes within this description, this prosecution ought not to be sustained. But I apprehend, it would be difficult to imagine a clearer description of an offence. To forge a writing with a view to defraud another, or to violate his rights of property, is to sorge a writing, to prevent equity and justice. To draw an order in the name of another, without his authority, is to forge a writing by which he may be defrauded, and his rights violated. It is clear, then, that an order comes not only within the description, but rile intent and meaning of the statute : and such has been the construction, sanctioned and confirmed by the immemorial, constant and uniform usage and practice of our courts.

There are many cases where the language of the law is as general as in the present instance. Take the ease of theft. The common law definition of theft is, the feloniously taking and carrying away the personal goods of another, with intent to steal. To decide what acts come within this definition, is frequently much more difficult, and gives a much greater latitude of construction, than to ascertain what writings are comprehended under the clause, “ other writing to prevent equity and justice.”

As to the case relied upon, where, in a prosecution on a statute against stealing sheep and other cattle, the court rejected the words, “ other cattle.” This was on the ground, that the word cattle was of uncertain import, and not because it was a genera! description, after the enumeration of particular things : but as there is no such ambiguity in this statute, the reason of that case does not apply.

It has been objected, that it does not appear, that Hotch-kiss, in whose name the order was drawn, had a right to draw on Doolittle and Dickcrman ; but this is an attempt to make a distinction without a difference. If Hotchkiss had a right to draw, he could have created no liability by the order, unless it was accepted. If he had no right to draw, yet if the order was accepted, he became liable in the same manner as if he had a right : Of course, his right to draw, or not, was perfectly immaterial.

I am therefore of opinion, that a new trial ought not to be granted.

In this opinion, the othgr Judges severally concurred.

New trial not to be granted.