Tomlinson v. People

No doubt the rule of the common law was, that, on an indictment for forgery or for uttering forged paper, it was generally necessary that the instrument alleged to be forged should be set forth in words and figures; and where this was Omitted, the cause of the omission must have appeared in the indictment. In cases, for instance, similar to the present, where the instrument had been destroyed by the prisoner, it could not, of course, be set forth precisely in words and figures; but it was essential that the cause of the inability to do this should affirmatively appear in the indictment. (The People v. Kingsley, 2 Cow. R., 522.) The reason alleged for setting out the instrument with this particularity was, to enable the court to see that it was one of those instruments which the law declared to be a crime falsely to make or knowingly to utter. I do not see, however, that any such .particularity was necessary for that purpose. I should think, if the denomination of the bill and the name of the bank or the individual whose name was forged were set forth, that it would enable the court sufficiently to ascertain, at the trial, whether the offense of forgery, or uttering said bill, had been committed. In some rare instances the omission may interfere with the proper preparation of the prisoner’s defense; but I am strongly inclined to suspect that this rule arose from the extréme caution with which judges tried prisoners, who, if found guilty, would be liable to the punishment of death. For this was the punishment, for a long series of years, attached to forgery; and it was difficult for our courts and juries to avoid the belief that the punishment was too severe for the offense. Consequently, when the penalty of death for this offense was abolished, the necessity of this particularity in the description of the instrument was repealed, so that, by the statute of 2 and 3 William IV, ch. 123, it is sufficient to describe the note as in a case of larceny. Accordingly, in Rex v. Burgess *320(7 Carr. & Payne, 490, 32 Eng. Com. L. R., 723), it was held, under this statute, that it was unnecessary to set out the date of the instrument. It was held in Rex v. James (7 Carr. & Payne, 553, 32 Eng. Com. L. R., 755), that in a count for forgery under the same statute, it was sufficient to charge that the prisoner “ did forge a certain promissory note for the payment of £50.” There are many similar cases in recent English authorities. No act similar to that of William IY has been passed by our legislature. I refer to it only for the purpose of showing that the particularity required by the common law was deemed a matter of form; and if the description minutely setting forth the instrument in words and figures was a matter of form, much more was the excuse for not conforming to this rule a matter of form. If it turned out on the trial, as in the case before us, that the prisoner had destroyed the instrument, how was he prejudiced by omitting in the indictment to state the reason why the instrument was not described precisely in words and figures ? The defendant’s own conduct furnishes the very best reason for the omission, and the mere statement of that conduct in the indictment could' have been of no benefit to him, and could not have aided the administration of justice at the trial.

The omission, therefore, being the omission of a statement which must be deemed in this case, at least, a matter of form, is cured by the provision in the R. S., which declares that “ no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings therein be affected by reason of any defect or imperfection in matters of form, which do not tend to the prejudice of the defendant.” (2 R. S., 728, § 52.) This provision did not exist at the time of the decision in People v. Kingsley (2 Cow. R., 522), to which I have already referred. The only provision then existing, relating to the strictness of the common law in regard to omissions in indictments, related only to the words,- “ with force and arms.” This was afterwards enlarged by the revisers in that, part of the Revised Statutes above quoted.

The only other objection taken by the counsel for the *321plaintiff in error, that has any semblance of plausibility, is presented in his sixth point. If the judge was asked to charge the jury that unless there were evidence of the forgery of a note on the Judson Bank, they must acquit, he would have erred if he refused so to charge: But this request was

accompanied as a part of the same proposition and sentence with the words, “ and that there was no evidence of forgery on that bank.”

The judge was correct in declining to put this proposition to the jury. Although the note was not produced, there was some evidence on the subject, and it was for them to determine its weight and credibility.

There was evidence against both defendants to enable the j ury to pass upon their guilt.

The judgment should be affirmed.

Judgment affirmed.