
    THOMPSON vs. THE STATE.
    [INDICTMENT EOR FOttGEKY.]
    1. Proof of forged instrument. — If the instrument alleged to have been forged is set out literally in the indictment, and is proved to have been mutilated, the State may resort to secondary evidence of the contents of the mutilated part, after first proving the existence of the writing before mutilation as described ; and, in connection with such secondary evidence, may then offer in evidence the mutilated writing itself.
    2. Charge held erroneous, because invading province of jury. — A charge, which instructs the jury, that they may infer the prisoner’s guilt from certain facts, hypothetically stated, “and other circumstances in the cause,” is erroneous, because it assumes the existence of “other circumstances in the cause,” instead of leaving the jury to decide upon the credibility of the evidence tending to prove them.
    From tlie Circuit Court of Marion.
    Tried before the Hon. 8. D. Hale.
    The prisoner .was indicted for the forgery of a promissory note for $50, wbicb. purported to be signed by "William Nice as maker, and wbicb. was set out literally in tlie indictment. On tlie trial, as the bill of exceptions discloses, tlie State offered in evidence a writing wbicli corresponded in every particular witb the alleged forged instrument, except tbat no name was signed to it; but, on tbe prisoner’s objection, tbe court excluded it from tbe jury. Tbe State tben introduced William Nice as a witness, wbo testified, tbat bis name bad been signed as maker to this writing, but without bis knowledge or authority; and tbat, on its being presented to bim by tbe prisoner, wbo then held a genuine note on him, of like date, tenor and amount, be tore off bis name, and a part of tbe word “hundred” in tbe date. In connection with this evidence, to which tbe prisoner objected, tbe court allowed tbe mutilated note to be read to tbe jury; and tbe prisoner excepted. Tbe prisoner offered evidence, “showing that tbe name signed to said note was not that of William Nice, but of one William Bird, in whose bandwriting tbe note was; and that said note was banded by him to Nice instead of bis (Nice’s) own note.”
    On this evidence, tbe prisoner asked tbe court to instruct tbe jury, that, “unless they believed from tbe evidence that, tbe name of William Nice was signed to tbe note offered in evidence, and was so signed by tbe defendant, with tbe intent to injure or defraud said Nice or some one else, they must acquit him.” Tbe court gave this charge, and further instructed tbe jury as follows: “That if they find from the proof, that tbe name of William Nice was attached to tbe note when be received it, and that be received it from the prisoner, they may infer from this, if it is unexplained, and other circumstances in the cause, that tbe prisoner put tbe name of said Nice to said note;” to which charge tbe prisoner excepted.
    Tbe admission of tbe evidence, and tbe charge of tbe court, to which exceptions were reserved, are' now assigned as error.
    33. W. Pece, for tbe appellant.
    1. Tbe writing offered in evidence by tbe State, as tbe note described in tbe indictment, ought not to have been read to tbe jury, because tbe indictment was not properly framed for that purpose ; and for tbe same reason tbe testimony of William Nice ought to have been excluded. — Commonwealth v. Haugh-ton, 8 Mass. 107; Obitty’s Cr. Pr. 536.
    2. Tbe charge of tbe court was not ■ warranted by tbe evidence; was calculated to mislead tbe jury; authorized them to look outside of tbe evidence in tbe cause, and assumed tbe existence of “other circumstances” than those hypothetically stated.
    M. A. BaldwiN, Attorney-General, contra.
    
    1. In all cases of forgery, it is necessary to describe particularly tbe forged instrument; but, where the description cannot be given, either literally or substantially, the reason for the omission must be stated. — "Wharton’s Criminal Law, 345 ; 1 East, 180; 16 "Wendell, 56 ; 3 Mass. 85; 2 Cowen, 524; 4 Leigh, 697; Archbold’s Or. Law, vol. 3, p. 554.
    2. Where the instrument is described literally, it is not necessary to aver the loss or destruction of the instrument; but parol proof of its existence and subsequent loss is admissible, under the general rule regulating the reception of secondary evidence. — 2 Mason, 464; 4 Halstead, 26 ; 1 Baldwin, 526 ; 6 Randolph, 693.
   RICE, C. J.

The rules of evidence are distinct from the rules of pleading. Objections to jdeadings must be determined by the rules of pleading. Objections to evidence must be determined by the rules of evidence.— It is a general rule of pleading, that in an indictment for forgery, the instrument alleged to be forged should be set forth in words and figures, or that its tenor should be accurately stated. There are exceptions to- this rule, but we need not notice them in this case; for here the indictment is clearly in conformity with the general rule above stated, and the objection is not to the pleading, but to the evidence.

As the indictment professes to describe the instrument alleged to be forged only by setting it forth in words and figures, the State is precluded from the right to insist on any proof short of the description thus given. But, to establish that description, the State may resort to secondary evidence of the contents of the instrument, as it was-before it was lost or destroyed, upon first proving that it Avas lost or destroyed; or, if there is proo-f that only part of the instrument was lost or destroyed, secondary evidence of' the contents of that part is admissible. All that can be required of the State, in such a case as the present, is, to produce the best evidence the nature of the case admits of, and that is within its reach. If the prosecutor, after receiving the instrument from the defendant,, tore off and destroyed his name and one of the letters in the word hundred, as he testified, then, unless it is shown that there is within the reach of the State or prosecutor an examined copy of the instrument, as it was before the prosecutor thus destroyed these parts of it, the contents of the parts thus destroyed may be proved by him, or by any other witness who saw and read the instrument before the destruction of these parts of it, and who can speakpointedly and clearly to the tenor and contents ofthese lost parts. If the jury believe such parol evidence of the contents of the lost parts, and if they farther believe from it, in connection with the parts of the instrument which were not destroyed, and the other evidence in the cause, that the instrument, as it was before the destruction of these lost parts, and as it is described in the indictment, was forged by the defendant, or that it was uttered and published by him as true, with intent to defraud, knowing it to be forged, they may, under the Code, find him guilty of forgery, under the present indictment. — Code, §§ 3158, 3165; Bishop v. The State, at the present term ; United States v. Britton, 2 Mason’s Rep. 464, and other authorities cited by the attorney-general.

But the defendant is entitled to a trial by jury. The determination of the facts which are essential to constitute his guilt, must be left to the jury, and must not be assumed by the court. The credibility of the evidence must also be left to the jury, and must not be assumed by the court. In the charge of the court excepted to by the defendant in this case, it is assumed that there were “other circumstances in the cause.” The credibility -of the evidence, tending to prove those “other circumstances,” was not left to the jury. In thus assuming the existence of “other circumstances,” without referring to the jury the credibility of the testimony by which they were assumed to be established, the court below erred; for it is manifest that, without the existence of other circumstances than those distinctly referred by that charge to the determination of the jury, the inference which it authorized the jury to draw was not legitimate.

For the error in that charge, the judgment is reversed, and the cause remanded. The defendant must remain in ' custody, until discharged by due course of law.  