State v. Dourden

• Decision Date: 30 June 1830
• Citation: 13 N.C. 443
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JOHN DOURDEN.

13 N.C. 443

THE STATE

v.JOHN DOURDEN.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1830

FROM JOHNSTON.

1. An indictment for forgery must contain an exact copy of the forged instrument. And when a bank-note had been forged by raising its amount, and the sum mentioned in its body had been erased, and never filled up again—held, that it was proper to set it out with a blank.

2. As such an instrument, from its tenor, purports to be of value, it is unnecessary to aver in the indictment that it was for a specific sum.

3. An averment of the legal validity of an instrument is never necessary in indictments for forgery, unless the instrument may, or may not, from its tenor, be of any validity—as where the forgery is by signing a name in blank, it is necessary to aver the effect of such signature.

4. The doctrine of indictments for forgery, and of the difference between the purport and the tenor of an instrument, discussed by RUFFIN, Judge.

The defendant was indicted for passing a forged bill of the State Bank of North Carolina.

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 note 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 atfull 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 note purported to be of any value; from which judgment Mr. Attorney-General, on behalf of the State, appealed.

RUFFIN, J. 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 differentwords. 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 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...