Terry v. Commonwealth

• Decision Date: 16 April 1891
• Citation: 87 Va. 672,13 S.E. 104
• Parties: Terry v. Commonwealth.
• Court: Virginia Supreme Court

13 S.E. 104

87 Va. 672

Terry

v.Commonwealth.

Supreme Court of Appeals of Virginia.

April 16, 1891.

Forgery—What Constitutes.

One T. was indicted for forgery of the following instrument: "Office of H. M. Smith & Co. T. —Dear Sir: Tours of the 9th inst. to hand. * * » You owe us $7.38, and you—— the note for $412. It was canceled, * * * but it was marked ' Paid, ' and canceled; so it cannot be of any use to any one. Yours, truly, Smith & McGuire, Receivers. " The indictment alleged that T. was at the time indebted to H. M. Smith & Co. Held not a forgery under Code Va. 1887, § 3737, defining as forgery the forging " any writing * * * to the prejudice of another's right. "

Error to circuit court, Campbell county.

J. W. Riely and Henry Edmunds, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Fauntleroy, J. The petition of Joseph O. Terry represents that he was indicted, tried, and convicted in the county court of Campbell county, at the November, 1890, term thereof, upon a charge of forgery, and was sentenced by the said court, at its said term, to confinement in the penitentiary of Virginia for the term of two years; that he presented his petition, with a copy of the record of the said prosecution against him, to the judge of the circuit court of Campbell county, asking for a writ of error and supersedeas to the said judgment, which said petition was, by the said judge of the circuit court of Campbell county, denied, and a writ of error refused on the 27th day of December, 1890. The case is here upon a writ of error awarded by one of the judges of this court to the judgment aforesaid of the county court of Campbell county, and to the said judgment of the judge of the circuit court of Campbell county. The indictment is founded on section 3737 of the Code of Virginia, 1887: "If any person forge any writing * * * to the prejudice of another's right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be confined in the penitentiary not less that two nor more than ten years." This statute predicates the offense of forgery only of such writings as are, or may be, to the prejudice of another's right, or by which another may be defrauded. It must sufficiently appear, from the description given of the writing alleged to have been forged, that it is writing to the prejudice of another's right. If it be not such, it is not within the statute, and the forgery of it cannot be punished as felonv. Powell v. Com., 11 Grat. 822; citing Chit. Crim. Daw, 1021; 2 Russ. Crimes, 318.

The indictment in the case at bar contains two counts, —one for forging; and the other for uttering, knowing it to be forged, a certain writing of the tenor following: "Office of H. M. Smith & Co., Manufacturers of Agricultural Machinery, Richmond, Va., Feb. 18, 1886. J. O. Terry, Esq.—Dear Sir: Yours of the 9th inst. to hand. We inclose a statement of your account. It agrees with yours very nearly, as you will see. You owe us $7.38, and you—— the note for $412. It was canceled and sent you by mail last——. If

you did not receive it it is probably in the dead-letter office at Washington; but it was mailed, marked 'paid, ' and canceled; so it cannot be of any use to any one. Yours, truly, Smith & McGuire, Receivers. " The indictment avers that the accused, being at that time indebted to H. M....