State v. Humphreys

• Decision Date: 30 April 1850
• Citation: 29 Tenn. 442
• Parties: THE STATE v. HUMPHREYS.
• Court: Tennessee Supreme Court

29 Tenn. 442

THE STATE

v.HUMPHREYS.

Supreme Court of Tennessee.

April Term, 1850.

The indictment charged that Joseph S. Humphreys “did feloniously and fraudulently forge a certain paper writing, which said paper writing is as follows, that is to say, “Mr. J. G. Bostick, you will please charge Mr. J. S. Humphreys' account to us up to this date. Feb. 7th, 1849. Twyman & Tannehill,” with intent to defraud one R. B. F. Tannehill, and with intent of him, the said Joseph S. Humphreys to pass and impose the same upon one John G. Bostick as genuine. There was another count for passing the said forged instrument, knowing it to have been forged. He was found guilty by a jury, and the presiding judge, King, arrested the judgment, and the State appealed.

Attorney-General, for the State; E. M. Yerger, for the defendant.

TOTTEN, J., delivered the opinion of the court.

The charge, preferred by indictment in the commercial and criminal court of Memphis, against the defendant, is that he feloniously and fraudulently forged the following described order, to wit:

“Mr. J. G. Bostick: You will please to charge Mr. J. S. Humphreys' account to us, up to this date. February 7, 1849. Twyman & Tannehill.”

The defendant being convicted, moved for a new trial, and his motion was overruled; he then moved in arrest, and judgment was arrested. From which judgment in arrest, the State has appealed in error to this court.

The question of error arises upon the indictment: does it contain a good and sufficient charge of the offence? This will be answered by considering the nature of the offence, and in what it consists.

It is thus defined in our penal code: “Forgery is the fraudulent making or alteration of a writing to the prejudice of another's rights.” This definition is derived from the common law; and it is a setled rule, that the counterfeiting of any writing, with a fraudulent intent, whereby another may be prejudiced, is forgery at common law. See Ward's case, 2 East, P. C., ch. 19, sec. 7, p. 861; 2 Russ. on Cr. 351; State v. Smith, 8 Yerg. 151. If the writing counterfeited could be of no legal effect, if genuine, it is held that it would not be forgery. But it seems that this proposition must be taken with some modification. See 2 East P. C., ch. 19, sec. 43, p. 948; 2 Russ. on Cr. 344.

Now, as to the form of the writing in question, we can see no objection to its validity if it were genuine. It is, in legal effect, an undertaking in writing to pay the debt of another. It does not state any consideration for the implied promise and undertaking, and need not state any. See Taylor v. Ross, 3 Yerg. 331;Campbell v. Finley, 3 Humph. 330;Gillman v. Kibler, 5 Humph. 19.

The objection taken by counsel for defendant, that the promise would be void, because the consideration is a prior and existing debt, seems not to be tenable. The paper purports to be an undertaking to pay the...