State v. . Britt , 14 N.C. 122 ( 1831 )

The first count charged the defendant with having forged an order for the delivery of goods, with intent to defraud John H. Powell.

The second count charged him with the forgery of an order for the payment of money, with a similar intent.

The third with having in his possession a forged order for the delivery of goods, and with "uttering and publishing it as true"; also with the intent of defrauding Powell. The fourth count was exactly similar to the last, except that the order was charged to be for the payment of money.

The testimony was that the defendant, having in his possession a forged order directed to John H. Powell, and purporting to be signed by one Jacob Britt, whereby Powell was requested to let him, the defendant, "have the amount of six dollars," presented it to Powell, and received the amount, either in money or in goods. That the defendant, upon being charged with the forgery, said he intended to have taken up the order before it was discovered.

Upon the defense it was proved that there was another Jacob Britt in the neighborhood, besides the one whose name was alleged to have been forged, but he was only sixteen years of age. No evidence was offered that the order was in the handwriting of the defendant, or that of Jacob Britt, Jr. On the trial many exceptions were taken for the defendant. The only one necessary to state is the following, viz.: That the third and fourth counts of the indictment charged that the defendant did "utter and publish as true" a forged order, which was not an offense within the statute, as the words of the Act of 1801, "to (123) prescribe the punishment of forgery" (Rev., ch. 572), were, "shallshow forth in evidence," and the words "shall utter and publish" were entirely omitted in it.

Upon this point, his Honor instructed the jury that the words "utter andpublish," used in the indictment, were equivalent to the words "show forthin evidence," used in the statute, and that the indictment described the offense sufficiently, without using the very words of the statute. His Honor further informed the jury that the forgery of an order for the delivery of goods was within the Act of 1801, and that it made no difference whether the order was for the payment of money or the delivery of goods.

The defendant was acquitted upon the first and second counts of the indictment, and convicted on the third and fourth, and judgment being rendered on the verdict, he appealed. There seems to be no reason to doubt the (124) correctness of any of the opinions pronounced in the Superior Court, except that which relates to the force of the words "utter and publish," in the third and fourth counts. They were held to be synonymous with "show forth in evidence." The former phraseology is that of the statutes relating to counterfeit money; the latter, of the acts for punishing forgery of private instruments. The different subjects may, of themselves, account for the difference of the terms used, and seem to require a different meaning. But there is a decisive argument to be drawn from the statute 5 Eliz., ch. 14, from which ours is taken. The words of that statute are, "shall pronounce, publish or show forth in evidence" (of which this last expression is alone retained by us), "any such false or forged deed, etc., as true, knowing the same to be forged, etc. (except being attorney, lawyer or counsellor, he shall for his client plead, showforth, or give in evidence such false or forged deed, etc., to the forgingwhereof he was not party or privy), and shall be thereof convicted, etc." This plainly restrains the meaning of "showing forth or giving in evidence" to a giving of the deed in evidence in a court of justice, and is altogether a different thing, from the mere exhibition of it in pais. The words "pronounce and publish" in the English act are not found in ours. We are consequently constrained to construe the words in our own act, as the same words are used in that of Elizabeth. And the omission of the other terms must be held to have been intentional in the Legislature; and the more especially as the acts against counterfeiting all have "utter and publish" in them, and omit "show forth in evidence."

(125) A new trial must therefore be granted, although the case seems fully to justify a conviction, upon the two first counts, for the forgery itself, if the testimony was entitled to credit enough to authorize the verdict given upon the other counts. That the order was not in the handwriting of the defendant did not rebut the legal presumption of his guilt. Being in possession of the forged order, drawn in his own favor, were facts constituting complete proof, that either by himself or by false conspiracy with others he forged or assented to the forgery of the instrument — that he either did the act or caused it to be done — until he showed the actual perpetrator, and that he himself was not privy. It is very different from having a counterfeit bank note. That is an instrument current in its nature and use, and may well come innocently to one's hands. But it is next to impossible that the defendant could get possession of such an instrument as this, purporting to be for his own benefit, without having fabricated or aided in the fabrication of it. If the instrument be a forgery, he who holds it under such circumstances is taken to be the forger, unless he shows the contrary.

But for the error already mentioned, the verdict must be set aside, and the case go to another jury.

PER CURIAM. Judgment reversed.

Cited: S. v. Morgan, 19 N.C. 352; S. v. Stanton, 23 N.C. 427; S. v.Barnwell, 80 N.C. 408; S. v. Peterson, 129 N.C. 557; S. v. Jarvis,ibid., 700; S. v. Jestes, 185 N.C. 735.