
    Townsend v. The State.
    Although a check upon a bank is in many respects a bill of exchange, yet as the penal code distinguishes between them, in that, while rendering the forgery of either an offence, it does not provide for the case of drawing a check in a fictitious name, but does provide for the execution of a bill of exchange in a fictitious name, it cannot be held that a check upon a bank is a bill of exchange within the true meaning and intent of section 4453 of the code. The instrument involved in the present case being a check upon a bank, there can be no conviction under that count in the indictment which describes it as a bill of exchange and charges the making of it in a fictitious name.
    December 18, 1893.
    Indictment for forgery. Before Judge Henry. Moyd superior court. September term, 1893.
    Fouohé & Fouciié, for plaintiff in error.
    
      W. J. Nunnally, solicitorTgen eral, contra.
    
   Simmons, Justice.

The controlling question in this case is, whether a cheek upon a bank is a bill of exchange within the meaning of section 4453 of the code, which declares that “any person who shall draw or make a bill of exchange, due bill, or promissory note, or indorse or accept the same in a fictitious name, shall be guilty of forgery, and, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than seven years.” In the second count of the indictment—which is the one under which the plaintiff in error was convicted, the first count having been excluded by the court from the consideration of the jury—it is charged that the plaintiff in error and one Crankfield “did make a certain bill of exchange in a fictitious name in words and figures as follows: ‘Rome, Ga., April 12th, 1893. No.— The Merchants National Bank of Rome pay to Henry Crankfield or bearer $140.93 143 one hundred & 93-100 dollars, Cave Spring, Ga. Albert M. Tumlin ’; the said Albert M. Tumlin not being their real and true name but a' fictitious name, and used for the purpose of wronging and defrauding one Albert N. Tumlin and the Merchants National Bank of Rome, of the sum of one hundred and forty and 93-100 dollars.” The paper put in evidence was executed by filling out arid signing,, as set out in the indictment, a blank check of the Merchants National Bank of Rome. It was contended that this paper was simply a cheek, and not a bill of exchange, and that the conviction was therefore illegal.

Undoubtedly a check upon a bank is in some respects a bill of exchange; and there are instances where in the construction of penal statutes a check has been held to fall within that designation. (Whart. Crim. Plead. & Prac. §137.) On the other hand, it has been said that “a check is not, either in common parlance, or in the technical language of the books, called a bill of exchange, . . though it may, in some respects, have the same legal operation.” Chief Justice Kent, in People v. Howell, 4 Johns. Rep. 301. And see Bigelow on Bills (ed. 1880), 115, 116; 3 Am. & Eng. Enc. of Law, Art. “ Cheeks,” p. 211; Nisbet, J., in Daniels v. Kyle, 1 Ga. 306. In" arriving at the meaning of the term “ bill of exchange ” as used in the section of the code under which this conviction was had (§4453, supra), other sections which are in pari materia are to be considered in connection with that section; and thus construing them, it will be seen that a distinction is made between bills of exchange and bank checks. The forgery of either is made an offence, the false and fraudulent making etc. of “ any check or draft upon any bank of this State ” being dealt with in section 4445; and the false and fraudulent making etc. of “ any note, bill, draft or check of or on any person, body corporate, company, or mercantile house or firm, or purporting so to be,” being dealt with in another section (§4450); but the case of drawing or making a check m a fictitious name is not provided for, unless the term “ bill of exchange,” as used in section 4453, should be construed to include checks. In sections 4446, 4447, 4448 and 4449, the term “ bills ” and the term “ checks ” are both used, the one being followed in each instance by the other. Section 4453, as we have seen, refers only to “ a bill of exchange, due bill or promissory note.” Whether the definition of a bill of exchange, as given in the civil code (§2773), should be construed to include a check upon a bank, or not, we cannot, in view of the distinction made by the penal code, hold that, within the meaning of section 4453, a check upon a bank is a bill of exchange. The case is similar to that mentioned in Bishop on Statutory Crimes (2d ed.), §326, where one section provided a particular penalty for passing counterfeit bank-bills and another a different one for passing counterfeit promissory notes, and it was held that though the words “promissory notes” would, on general principles, include bank-bills, they did not within the meaning of the particular statute. See State v. Ward, 6 N. H. 529.

The paper in question here being an ordinary bank check, it follows that a conviction under section 4453 was improper, and the court below erred in overruling the motion for a new trial. ' Judgment reversed.  