State v. . Dourden , 13 N.C. 443 ( 1830 )

FROM JOHNSTON. The indictment contained four counts. The first and third charged the defendant with passing the bill; the second and fourth with attempting to pass it. The second count was as follows:

"And the jurors for the State, upon their oath aforesaid, do further present, that the said J. D., on, etc., with force and arms in, etc., did knowingly and felonously attempt to pass as true to, etc., a certain false, forged and counterfeited note, commonly called a bank-note, purporting to be issued by order of the President and directors, etc., which said, etc., is and was at the time of attempting to pass the said last-mentioned not of a bank within the State of, etc., the tenor of which last-mentioned note is as follows, that is to say:

* * * * * 20 * * * * *

"``The President and Directors of the State Bank of North Carolina promise to pay on demand at the Branch Bank at Salisb dollars, to J. Sneed, or bearer leigh, 2 day of May, 1823.'

"With intent to defraud the said, etc., he, the said J. D., at the time of attempting to pass the said last-mentioned note, then and there, that is to say, on, etc., in, etc., well knowing the last-mentioned note to be false, forged and counterfeited, against, etc.

The fourth count was exactly like the second, except that in the tenor of the note the words Salisbury and Raleigh were written at (444) full length, instead of the abbreviations above set forth — viz., "Salisb." and "leigh."

On the trial upon an inspection of the note, it turned out that the forgery consisted in altering a genuine one-dollar bill, which was effected by erasing the figure 1 at the top of the bill near the left corner, and placing in its stead the figures 20. The corresponding figures on the right side of the note were entirely torn off. The word one in its body was erased, and the erasure had taken off parts of the words Salisbury and Raleigh, so as to make them Salisb. and leigh, and the word dollar was altered by having the letter s added to it, so as to make it read dollars.

The counsel of the defendant objected to the bill's being read to the jury, because in setting out the tenor the indictment contained a verbatim copy of the note, without inserting before the word "dollars" the word "twenty," so as to designate the number of dollars for which the note purported to be. MARTIN, J., overruled the objection, and the defendant was acquitted upon the first and third counts, and convicted upon the second and fourth.

Afterwards his Honor arrested the judgment, because the indictment did not contain an averment that the bank not purported to be of any value; from which judgment Mr. Attorney-General, on behalf of the State, appealed. Had the objection been taken to the evidence that the note produced varied from that set out in the fourth count, there must have been a new trial. For, in forgery, the tenor of the instrument must be given in the indictment, and if that produced do not correspond with it, the prosecution must fail. Here the fourth count states the words "Salisbury" and "Raleigh" in full. Whereas, on the note itself they appear as "Salisb." and "leigh," which are different (445) words. No objection, however, of variance was taken to either count. Indeed, none such could be made to the second count, for an exact transcript of the note is set out in that.

The objection actually taken is that in setting out the tenor, the indictment contains a verbatim copy of the note, without having inserted before "dollars" the word "twenty," so as to designate the number of dollars for which the note imports to be; and that the note when produced is in law for twenty dollars, and therefore varies from the count. I think this objection untenable. Tenor does not mean that in effect or in law it is a note for twenty dollars, but that the note is in those very words and figures. It imports a copy, and when the indictment charges the passing a forged note of a certain tenor, the note set out in the indictment must be a copy of the instrument, such as it was when the prisoner passed it, with all its defects, omissions and additions, as then existing. For that was the instrument he passed, and the Court is to judge whether in that state it be one of the instruments embraced by the statute. I think, therefore, the method adopted here was the only proper one, and that if "twenty," or any other word, had been inserted in the tenor, it would have been fatal, though the sense and legal meaning of the note, without the word, should be the same with that set out with the word, as the tenor in the indictment. On this point I concur with the judge below.

The Court below, however, arrested the judgment after conviction on the second and fourth counts for want of a specific averment in those counts, that the notes set forth in them were bank notes for a certain sum, or purported to be for a certain number of dollars. This position is different from the former in this: The first assumes that a note for __________ dollars must set forth in its tenor as being for a certain number of dollars; the latter that the tenor of such a note must (446) be truly given, so as to make it on the record read _________ dollars. Yet the indictment must, by a distinct averment, allege that the note thus spread on the record is a note or purports to be a note for a specific sum of money.

Very clearly, the indictment must charge the forgery of such an instrument as is included in the statute. In this case it must appear to be a bank note; which ex vi termini means a note for a certain sum. This is the reason why the tenor must be stated. For the construction of the statute and of the forged instrument, its obligation and value, or, rather, the sum that may be recovered on it, are all matters of law to be decided by the Court. If the instrument be perfect in its structure, it can never be deemed necessary by anybody to do more in the indictment than give the tenor. From that, everything material, the nature of the instrument, and the sum which it obliged one to pay, or discharged another from paying, fully appears. But it seems to be thought that if the instrument be not complete in all its parts, according to the usual form of such instruments, further averments are necessary to show its meaning, and the extent of its obligation as being its purport. This is true to a certain extent. It is true of such instruments as may or may not be of legal validity or meaning, according to the intent of the party, that they should or should not be so understood; but it is no further true. An averment cannot supply a defect in the instrument, which no intent of the party could make to mean a different thing from what it imports in itself to be; nor, where the instrument thus in itself imports to be one thing, can the intent of the party make it purport to be another. The purport of a writing is that which it appears on its face to be. The use of the term becomes proper in an indictment, because a forgery cannot be said to be in fact the thing it purports to be. We cannot with propriety say one forged a bond or a bank note. If it be a forgery, (447) it is not a bank note or a bond. It only professes to be so. Therefore, it is most correct to say that the accused forged a certain paper writing, "purporting to be a bank note or a bill." Either way has been held sufficient in England, because in their statutes, the offense is often described by the words "forge a bank note, or bill," or the like.Rex v. Birch, 1 Leach, 79; 2 Bl., 790. It may be doubted whether it would be safe to lay it here otherwise than as "purporting to be," since the act of 1819 says, "forge a bill or note in imitation of, or purporting to be a bill or note." It is never, therefore, necessary to set out the meaning of an instrument having a meaning in itself, under the term purport. It is only necessary, if at all, to bring the instrument within the general description of the statute, as "purporting to be a bank note, deed, receipt for money," and the like. All beyond that, which must appear to the Court, does appear from the tenor. If the purport means, as Mr. Justice Buller says it does, "the substance of an instrument, as it appears on the face of it," it can be gathered from the contents alone. What more, then, can the purport inform the Court of than the tenor does? From the tenor, the purport is seen as perfectly as if the indictment were encumbered and complicated by a formal statement that the purport is one thing or another. The general doctrine on this point is fully stated in the opinion of the twelve judges, delivered by Judge Buller, in Gilchrist's case. 2 Leach, 657. That case fully shows the danger of setting out anything else under this word than the general description of the instrument. For there a variance between the purport as expressed at large in the indictment and the purport as collected by the Court from the tenor, was fatal. The indictment charged the forgery of a bill of exchange purporting to be directed to G. K., W. M. T. H., by the name and description of Messrs. R. M. H., and the tenor showed a bill directed to Messrs. R. M. H. The judgment was arrested, for G. K.'s name did not appear on the bill, (448) and therefore it did not purport to be directed to him, though he was in fact one of the firm of R. M. H., to which the bill was directed. And the judges go so far as to say that there had been no determination, that the purport and tenor should both be set out, and intimate that they need not. If here there had been an averment that the forgery "purported to be a bank note for twenty dollars," what consequence would follow? If it do not appear upon its face, in other words, from the tenor set out in the indictment, to be for that sum, the indictment is repugnant and bad. If it both so appear from the tenor, then it is already sufficiently stated in the indictment.

It is true, if the instrument be not apparently within the act, or, rather, if it be not apparently any legal instrument whatever, there must be such averments as will make it one and bring it within the statute. Hunter's case, Leach, 624, is an instance of this. The indictment charged that the prisoner "forged a certain receipt for money — viz., twenty-five pounds, mentioned and contained in a certain paper writing, called a navy bill, which said false and forged receipt for money is as follows; That is to say, William Thornton," "William Hunter." It was held that the indictment must aver such other facts as would enable the Court to see that the instrument was in law a receipt for money; as that "those words were intended to signify that those persons had received the money."

The ground of that decision obviously is that the mere names of the persons do not per se constitute a receipt, according to the intent with which, if genuine, they had been placed there; or, in case of a forgery, as they will purport to be a receipt, according to the intent with which the prisoner meant others to understand, they had been placed there, by the persons whose names they are, that intent must be averred. (449) Such an averment is necessary that the signification of words, unmeaning in themselves, may be ascertained to the Court. If it were not so, the matter of law, whether it was a receipt, would be tried exclusively by the jury; whereas, that is the province of the Court, after the intent is found.

But that can have no application to the case before us. Here the note is apparently a bank note, and therefore within the letter of the act. There is nothing equivocal on its face, which makes it one thing or another, according to the intent with which it was fabricated or passed. It would not purport the less to be a bank note, issued by the State Bank of North Carolina, because the prisoner said it was issued by the Bank of New Bern; nor the less purport to be for twenty dollars, because he passed it for five. If there had been an averment that it purported to be, or was intended to be, a bank note for "twenty" dollars, the case would have been the same as it now is, unless to the Court it appeared by the tenor, not to be a note for that sum, and if the jury had so found it, still the objection of repugnancy would have existed, unless the finding accorded with the inference of law from the face of the note itself, as may be fully seen from Elliott's case, hereafter cited.

The enquiry, then, comes down at last to this. In this a bank note, as stated in either count, for any what sum? If the note, considering it as an original forgery out and out, contain no obligation to pay money; or, considering it as a forgery committed by altering a genuine note, if it be so modified or cancelled as to leave nothing whereby, if genuine, the bank could be compelled to pay any sum; in either case, it would not be a bank note, and it would be mere folly to receive it, since it does not purport to oblige the bank to redeem it. Such a case would not be within the statute; but I should be sorry to be compelled by the rules of law, so to consider this instrument. It would be opening the door to great and dangerous frauds and forgeries.

This instrument is, in all respects, in the usual form of a bank note, except that in its body it has not in letters the certain sum for which it was given. It purports to be a promise by the president (450) and directors of the State Bank of North Carolina to pay on demand to J. Sneed, or bearer, _____ dollars. In this shape, without more, I should say it was not a bank note, for the want of a sum expressed. But it is not necessary that the instrument forged should be an exact resemblance of one that is genuine. It is sufficient, if it be fit, prima facie, to pass for true. Now, although it is usual and proper, to insert the sum in the body of the note, in Roman capitals, yet the amount of the note does not appear in that way alone, nor does its obligation depend solely on the word designating its amount, having been there inserted, or being there remaining. It is likewise proper and usual to place the denomination in one or more other places on the bill. This is done merely for ornament, or to render counterfeiting more difficult, as if they were vignettes in the margin; but it is done with figures in the body of the bill, and usually at one or each corner, for the purpose of designating the value of the bill. As long as the denomination appears in either of those places, it is a note of the bank, and for the sum specified by the words or figures, they not disagreeing.

We are obliged judicially to take notice of the common form of bank notes; for the Court is to determine whether the instrument is a bank note. And the whole circulating medium of the country would be discredited and become worthless, if this Court were to say that a bank was discharged from payment of its notes, if a figure or word be obliterated in use, when enough still remains to show its true amount. In a suit against the bank, the Court would tell the jury that it was a note for the sum thus appearing on its face by letters, though the figures were worn off, or by the figures, though the word was illegible. It need not be declared on as a lost note; for it remains a note for the money mentioned in any way upon its face. We know (451) that, in fact, the banks pay such notes. They do not pay them from courtesy. I should regret to leave them on that footing. They pay because they are lawfully their notes, and they are obliged to pay them. Hence, as I have said, the note promises to pay _____ dollars. The kind of coin thus appears. The quantity alone remains to be ascertained. On the face of the note, and according to the usual form, the number of pieces is designated by the figures "20." From this, I think, as against the bank, and to all the world, this paper purports to be and is, if genuine, a bank note for "twenty dollars." Elliott's case (1 Leach, 175), is a direct authority upon this point. There it was held that although in a body of the note it was for fifty _____, without saying "pounds" or "shillings," yet the fifty pounds in the margin removed every doubt, and showed the note to be for fifty pounds. And this was on a motion in arrest of judgment, upon the objection that the indictment was repugnant, as the tenor was of a note for fifty _____ and the averment alleged a note which purported to be for fifty pounds. This shows that it is not only the province of the Court to judge of the nature of the instrument therein set forth, but also that the instrument was, in law, a note for fifty pounds. So I think here the note is for twenty dollars.

If it were not so held, most serious would be the impositions in paper appearing to be bank notes, and without the possibility of punishment; for we know that the banks always pay genuine notes, however much they be mutilated. And we likewise know that in order to make forgeries more deceptive, and especially to common persons, it is a common device of counterfeiters to chafe, rumple, and wear away the notes. An apparent long circulation furnishes an evidence of genuineness, particularly calculated to delude the ignorant, whose protection is chiefly designed by the legislature.

I am, therefore, of opinion that the indictment is good and sufficient, and that there must be judgment for the State on (452) the conviction.

PER CURIAM. Reversed, and judgment entered for the State.

Cited: S. v. Fulford, 61 N.C. 563.