Commonwealth v. Linton , 2 Va. 476 ( 1825 )

BOULDIN, J.,

delivered- the opinion of the Court:

In regard to the first question on which the opinion of this Court is required, it may be observed, that no direct response can be made, because neither a general affirmance or denial of the proposition, would be true.

The rule is, that the false making and forging any instrument, whereby another may be injured, constitutes the offence of forgery, even though the writing be of such a character, that it would not, if genuine, be effectual to its purpose, provided the defect in its frame or character, be not open and palpable, so that no one could be deceived by it, without the grossest negligence. ^(a) This rule applies as well to a bail bond, as to any other.

Some of the Judges are of opinion, that a bail bond taken in virtue of the Writ, &c. stated in the prisoner’s plea, in arrest of judgment, notwithstanding the irregularit3r of the said Writ, is not of that' palpably void character, that no one could be deceived thereby, but that it might very probably have passed to an Office Judgment, and the bail have paid the debt, without employing Counsel at all, which is the common course where the principal really owes the money.

But a majority of the Judges, deem it unnecessary to answer the first point presented with reference to the Writ and allegation of the plea in arrest, which, except the bail bond itself, form no part of the record, because nothing which does not appear by the record, can be alleged in arrest of judgment, and the unanimous opinion of the Court on the second question, contains a sufficient answer to the first, for the purposes of this Cáse.

In answer to the second question, the Court doth decide, that although some questions may be raised, respecting the validity of the bond exhibited by the Indictment, arising from the recitals in the condition thereof, the same as it appears by the record, is so far valid and substantially good, that a prosecution for forgery committed by altering the same in a material part, can be sustained.

Which is ordered to be certified, &c.

(a) 2 East, ch. 19, § 43, p. 948.