
    Henry v. The State.
    1. Where, in an indictment for uttering a forged receipt, the instrument set out is not prima facie a receipt, such extrinsic facts must be averred as are necessary to show that the instrument would, if genuine, have the operation and effect of a receipt.
    2. An averment that the instrument set out was a receipt, does not have the effect to change its prima facie character. Nor will the character of the instrument be changed by an averment that by the rules of the bank where the instrument was used, it was upon its face a receipt. It should be shown how or in what way, the instrument, if genuine, would, under the rules of the bank, have the operation and effect of a receipt.
    Error to the Court of Common Pleas of Hamilton county.
    The indictment against the defendant contains eleven counts. The indictment was demurred to generally, there being no reference in the demurrer to the particular counts. The demurrer was overruled. On the trial the defendant' was convicted on the second count, and acquitted on the remaining counts. The arguments in the case relate to the second count, which is the only one passed upon by the-court. The second count is as follows:
    “And the grand jurors of the county of Hamilton, in the-name, and by the authority of the State of Ohio, upon their oaths and affirmations present, that A. Henry, on or about the 16th day of July, in the year of our Lord eighteen hundred and seventy-eight, with force and arms at the county of Hamilton aforesaid, unlawfully did utter and publish as-true and genuine a certain false, forged, counterfeited, and altered receipt for money, which said false, forged, counterfeited, and altered receipt for money is of the purport and value following, to wit:
    “Espy, Heidelbach & Co. Cincinnati, July 16, 1878. Draft wanted for $910 on New York. Order of A. Henry.
    “M. Teller.”
    The said receipt for money being then and there a receipt for money issued by James Espy, Philip Heidelbach,, and Louis Heidelbach, then and there doing business as bankers under the firm name of Espy, Heidelbach & Co., to the draft clerk in the bank of them, the said Espy, Heidelbach & Co., which said receipt for money, by the rules of said bank, upon its face was a receipt for money to-the draft clerk aforesaid, to make and deliver to the said A. Henry the draft of said Espy, Heidelbach & Co., upon their correspondent, the Hanover National Bank, in the city of New York, for the payment of the sum of $910, in current funds, which said draft, when so delivered, was of the value of $910, and which said receipt for money for-said draft upon its face then and there, by the rules of said bank, purported that he, the said A. Henry, -was thereby entitled to receive the draft aforesaid with interest, thereby unlawfully to defraud, he, the said A. Henry, then and there at the time he so uttered and published said false, forged, counterfeited, and altered receipt for money as aforesaid, well knowing the same to be false, forged, counterfeited, and altered, contrary to the form of the statute in such case made and provided, and against the peace and ■dignity of the State of Ohio.”
    • After verdict, there was a motion for a new trial on vari■ous grounds. The motion was overruled, and the accused ¡sentenced on the verdict.
    The present proceeding in error is prosecuted to obtain a reversal of the judgment.
    
      Walter B. Granger, for plaintiff in error.
    
      Isaiah Pillars, attorney-general, and Samuel H. Drew, prosecuting attorney, for defendant.
   White, J.

The plaintiff in error is charged in the second count of the indictment with uttering and publishing as true and genuine, a false and forged receipt for money. The alleged receipt is set out, and is as follows:

“ Espy, Heidelbach & Co. Cincinnati, July 16, 1878. Draft wanted for $910 on New York. Order of A. Henry.
“ M. Teller.”

This instrument does not purport on its face to be a receipt; nor are there extrinsic facts stated which show that it could or would have had, if genuine, the operation and effect of a receipt. The rule is that where the forged instrument is actually within the meaning of the statute, but does not sufficiently appear to be so on the face of it, the instrument must not only be set out, but there must be added such averments of extrinsic facts as to make it appear upon the face of the indictment that the forged instrument is one of those intended by and described in the statute. Carberry v. The State, 11 Ohio St. 410; Bynam v. The State, 17 Ohio St. 142; Rex v. Barton, 1 Moody, 141; Starkie’s C. P. 118; Rex v. Hunter, 2 Leach, 711.

It is averred that the receipt was issued by Espy, Heidelbach & Co. to the draft clerk in their bank. But it does not purport to be issued by them. It was signed “M. Teller,” but there is nothing to show what “ M. Teller ” meant; nor is there anything to show a connection between that signature and Espy, Heidelbach & Co. Rex v. Barton, supra. The averment in the indictment that the instrument was a “receipt for money” does not have the effect to change its prima facie character. Nor does the averment, that by the rules of the bank the instrument upon its face was a receipt for money, have that effect. Before effect can be given to such an averment, it must appear how or in what way the instrument, under the rules of the bank, would, if genuine, have the operation and •effect of a receipt for money.

There also seems to be a repugnancy in the count. It is first averred that the instrument is a false and forged receipt for money. By a subsequent averment the same instrument is described as a receipt for money, issued in fact by Espy, Ileidelbach & Co. to the draft clerk in their bank. But any objection on this ground is, perhaps, obviated by the criminal code, which provides that no indictment shall be deemed invalid “ for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime or person charged.” 74 Ohio L. 334, chap. 4, § 4.

Judgment reversed.  