Barfield v. State

Benning J.

By the Court.

delivering the opinion.^

The motion for a new trial embraces all of the exceptions in the case. The question, therefore, whether the Court below was right in refusing that motion, will include all the questions in the case.

[1.] The first ground of the motion was the charge of the Court. That charge amounts to this: that if the defendant procured Slaughter Hill, the boy, to make the notes, with the intention to use them in the purchase of property, as the notes of another Slaughter Hill, the brother of Archer Hill, the notes were forged.

The evidence showed that the notes were made by Slaughter Hill, the boy; that he was not quite twenty-one years old; that he lived with a brother of the defendant; that he was destitute of property; that the defendant and his brother “ got in with the boy Slaughter Hill, to give the notes, so he (the defendant) could buy a horse with them;” and that the brother was to give the hoy a suit of clothes for signing the notes. It is clear from this that the boy was cognizant of the defendant’s purpose to use the notes, as the notes of some other man than himself. There can belittle doubt but that he knew that they were to be used as the notes of the other Slaughter Hill.

The charge must be construed in reference to these facts. It must, therefore, be treated as a charge to this effect: that If the defendant procured Slaughter Hill, the boy, to. make the notes, with the intention to use them in the purchase of property as the notes of another Slaughter Hill, the brother of Archer Hill, and the boy made them, cognizant of this intention, the notes were forged.

The charge thus treated, the question becomes this: if there are two persons of the same name, and one of them-signs that name to notes, with the intent that the notes may be used in trade, as the notes of the other, is the act a forgery ?

And we think that it is, according to the authorities. Thése are, Brown’s case, slated in 1st Archbold Pl. and Ev.; Mead vs. Yong, 4 Term R. 28, 6 Cow. 12.

As to Brown’s case, it was argued that it was distinguishable from the present in this : that the Brown there intended to be forged on, was a fictitious person. But that distinction rather makes against the party insisting on it — Bar-field — for if it was a forgery to use the name of a fictitious person, how much more would it have been a forgery if the name used had been the name of a real person — of another real Brown.

The case of Hevey, (also stated in Archbold,) is not in conflict with these. In that case, Barnard McCarty was a real person; and the endorsement which he made, he made as his own endorsement. All that Hevey did was to person-ate McCarty, in reference to this endorsement.

We find no fault with the charge.

If the charge given was right, it is clear that the charge requested was wrong. The refusal of the charge requested was the second ground of the motion.

The third ground was, that the offence charged was unknown to the penal code.

This ground is, we think, not true. The fourteenth section of the seventh division of the penal code very plainly provides for the offence charged.

The fourth ground was that the verdict was contrary to law.

The seventh division of the penal code has three sections— the first, the ninth, and the fourteenth, each of which, perhaps, makes the facts stated in the indictment a crime. Those facts I can give only in general terms, the indictment not being, as I write, within my reach, it not having been sent up in the record, and the copy, or original, used at the argument of the case, not being now among the papers of the case. The facts were, however, in general terms, that Barfield, by color of forged notes, obtained a horse, and a cow and calf, from Hudson, with intent to defraud him. This statement is much the same, if not quite the same, as a statement to this effect: that Barfield, falsely and fraudulently, uttered, published, passed the notes, &c.; and as a statement, that he uttered and published, as true, the notes, &c., of which statements the first would have brought ihe indictment under the ninth section; and the second would have brought it under the first section.

These things being so, it was insisted that none of the sections could be operative, and, therefore, that the verdict was contrary to law.

[2.] We think not. We think that even if the three sections are all alike, in the respect in question, yet that the one, at least, on which this indictment was founded, is operative; and for two reasons: that section is the latest, the punishment it prescribes is the lightest.

The fifth and last ground was, that the verdict was contrary to the evidence.

We think that there is nothing in this ground. The whole validity of the ground turns upon a nicety of expression in the indictment. The question is, whether the notes proved were the same as the notes described; and the question depends entirely on the import of an expression in the indictment. That expression I will not venture to try to recall by memory; and as the indictment itself is not at hand, I must let the decision on this point pass without stating the reasons for it.

None of the grounds appearing to us to be good, we must affirm the judgment.

Judgment affirmed.

Judge Stephens absent on account of sickness in bis family.