
    Bennett vs. State.
    1. It must appear by record evidence, that the grand jury returns the bill into court “a true bill.” This requisition is satisfied by an entry, showing that the grand jury brought in the bill, which with its endorsement “a true bill” is spread on the record.
    2. An order, directing an ex officio prosecution, need not show on its face, that no one would prosecute. This will be presumed where the judge ordered the prose* cution.
    3. If the evidence be applicable to either count in an indictment, and there be a general verdict of guilty, the conviction will be valid.
    4. Gcod character is available, only in doubtful cases.
    At the April term of the circuit court, held at Smithville, for the county of DeKalb, the presiding judge, Caruthers, made an order, which was entered on the record, and is as follows:
    “It appearing to the court from a presentment here pending-against the defendant, as well as from a trial of the same at the last August term of this court, that the defendant is guilty of forging a receipt on P. G. Hearn, for $50 75, as set forth in said presentment, but there is a trivial variance between the receipt, as set forth in said presentment, and as shown on the trial; it is ordered by the court, on motion of the attorney general, that he file an indictment ex officio against the defendant for said offence of forgery.” This entry is followed by an entry in these words: “The grand jury came into open court and filed an indictment against Harrison Bennett, for forgery in the words and figures following, to wit,” — The indictment is then set forth with the endorsement thereupon, “a trqg bill, Jacob Fite, foreman of the grahd jury.”
    The second count in the indictment was as follows: ‘-‘And the grand jury aforesaid further present and say, upon their oaths aforesaid, that the said Harrison Bennett, heretofore, to wit, on the 9th day of October, in the year of our Lord eighteen hundred and forty-four, in the county of DeKalb, in the State of Tennessee, was then and there bound and liable to pay over to one Willie Russell and Pernal G. Hearn, divers large sums of money, upon divers receipts for notes and claims before that time delivered to the said Harrison Bennett for collection by the said, Willie Russell and the said Pernal G. Hearn; he ■ the said Harrison Bennett at the time of the delivery of the said notes and claims aforesaid, then and there being a constable of said county anc} said state, to wit, one receipt given to the said Pernal G. Hearn, by the description of P. G. Hearn, and dated the 16th day of June, 1842; one other receipt given to said Willie Russell on the 8th day of January, 1842, and that said Harrison Bennett, then and there intending to defraud the said Pernal G. Hearn' and the said Willie Russell, afterwards, to wit, on the 9th day of October, in the year of our Lord eighteen hundred and forty-four, in the county of DeKalb, in the State of Tennessee, did then and there unlawfully, fraudulently, falsely and feloniously forge and counterfeit a certain acquittance or receipt for money, which said false, forged or counterfeit receipt and acquittance for money, is as follows, that is to say, “Received of Harrison Bennett forty dollars and twenty-five cents, to be placed as a credit on the receipt that I hold on him for the collection of debts and claims I put in his hands, this 19th day of September, 1842. P. G. Hearn.” with intent then and there feloniously and fraudulently to prejudice the right of the said Pernal G. Hearn and the said Willie Russell, contrary to the statute in such case made and provided, and against the peace and dignity of the state.”
    The first count was in substance the same as the above, with the exception, that it assumed to set out verbatim the receipt executed by Bennett for the collection of the notes and claims, upon which was entered the forged credit.
    The defendant moved the court to order the states’ attorney to elect on which count in the indictment he would proceed. This motion was overruled, and the defendant pleaded not guilty, and a jury was empannelled under the direction of the presiding judge, Caruthers, to try the case at the April term, 1846. -
    The state introduced a receipt executed by Bennett to Plearn & Russell, for the collection of divers claims and notes. The reception of this receipt was objected to by the defendant’s counsel, on the ground of variance between the terms of the receipt set out in the indictment and that exhibited. In the claims set out in the receipt in the indictment, are to be found the claims of Richard Newsom, Edwin ■ Parmer, Wm. Dale. The receipt offered as evidence had all those obliterated. In the receipt offered in evidence were these words, “the two debts above have to stand against the credit on the backno such words were in the indictment. In the indictment one claim is described as being against Edwin Parmer, in the receipt offered it is “Edwin Palmer.” The indictment describes another claim in the receipt as against William Culler. The receipt shows debtor to have been “William Cutter.” Other variances of a similar description were urged. The court overruled the objection, and the receipt was read.
    The state then introduced a receipt for $50 75, purporting to have been executed by P. G. Hearn to Bennett. Hearn was introduced, who stated, that he had not received any such sum of money from Bennett, and had never executed such a receipt, nor authorized any person to execute it for him. There was other proof.
    The jury found the defendant guilty, and fixed his term of imprisonment at three years in the state prison, and a motion for a new trial having been made and overruled, the defendant was sentenced to three years confinement in the penitentiary, and he was declared disqualified from holding any office in this state, infamous, and incapable of being examined as a witness before any judicial tribunal.
    From this judgment he appealed.
    
      M. M. Brim, for plaintiff in error.
    One of the grounds of defence, relied on is the variance, between the charge in the indictment and the receipt offered in evidence.
    Where the matter charged (whether introductory or otherwise) is descriptive, it must be proved as laid, or the variance will be fatal. Greenleaf’s Evidence, page 78, s. 65, 69, 70.
    When the matter of a written instrument is introduced in pleading by the words “according to the tenor following” or “in the words and figures following” or in “the words and matter following,” or in fact any words which import a correct description, any the slightest variance between the instrument set up and thatproduced in evidence is fatal. 2d Russel on crimes, 364, 4. 716; 3 Starkey’s Evidence, 1587-1588-89; Smith Sidney’s case, 456; 22 Wendal’s Rep. 167 to 175; 3 Phillips’ Evidence, 502-503; 9 Yerg. 376; 9 Yerg. 21-392 ; 7 Yerg. 5, 26.
    Advantage may be taken of this variance at any stage of the cause. 4 New York Digest 723.
    This principle of variance being well settled, then does it apply to the present case? We contend it does, and there are several distinct variances which are fatal to this cause.
    
      Mr. Brienhere commented on the variances above set forth.
    The second receipt for collection should not have been read as it is not discribed or set out in the indictment. This was objected'to and overruled by the court when offered in evidence.
    The receipt offered in evidence was very near all paid off by the credits on the back, and the receipt was offered to show that defendant had inducement to forge the receipt; this ought not to have been allowed, unless .described in the indictment.
    Another defence is, the record does not shew that the grand jury returned the bill of indictment into court a true bill. I need not cite authority on this point.
    The proof does not sustain the verdict, as Hearn is the only witness who proves the forgery, and he stands completely discredited-by contradictory statements. A number of witnesses prove the receipt not in Bennett’s handwriting, and proved it to be in the same handwriting that Hearn acknowledged to be his.
    His general good character is worth a great deal in such a case.
    There is no charge of the judge in the record, so we cannot tell how his honor charged the jury. The whole cause considered, we think the judgment should be reversed.
    
      Attorney general, for the state.
   Turley J.,

delivered the opinion of the court.

Harrison Bennett was indicted and convicted in the circuit court of DeKalb county, at the April term thereof, A. D. 1846, and he appeals to this court and asks that the judgment rendered against him be reversed; and several causes are now assigned therefor—

1st. It is said there is no record evidence that the bill of indictment was ever returned by the grand jury into open court a true bill. The record upon this point is in the words and figures following:—

“The grand jury came into open court and filed an indictment against Harrison Bennett for forgery, in the words and figures following, to wit,” (here the indictment is inserted with its endorsements, among which is the following) “A true bill, Jacob Fite, foreman of the grand jury, 7th April, 1846.”

This according to the case of Calhoun vs. The State, 4th Humphreys, 477, is record evidence, that the bill of indictment upon which the prisoner was tried and convicted, was returned into open court by the grand jury, which found it, “a true bill.”

In that case the record is almost identical with this; it is in the words following—

“Tuesday, February 8, 1842. — The grand jury came into court under the care of their officer, and returned a bill of indictment against John H. Calhoun, which is in the words and figures following, viz: (here the bill of indictment against the prisoner for the murder of George T. Shoat, with the endorsements thereon is set forth.) “A true bill. Absalom Grant, foreman of the grand jury.”

The case is directly in point and settles this objection against the prisoner.

2d. It is contended that the order of the judge directing the attorney general to file the bill of indictment ex officio, is not sufficiently specific in its terms to have warranted this action of the attorney general: that it ought to have stated that no one would prosecute for the offence, which' it does not. The case of Simpson vs. The State, 4 Humphreys 456, in our opinion settles this objection against the prisoner.

In that case it was objected that the order under which the bill of indictment was filed, was informal and insufficient, because it did not show that witnesses had been examined touching the commission of .the offence before the order was made.

Upon this the court said, the statute prescribes the duty of the circuit judge upon this subject, and the legal presumption is that it has been legally discharged.

We cannot presume that the circuit judge acted in disobedience of express legislative enactment; and we cannot require 'him to show by his records, that he has not violated the law in his orders, preparatory to the commencement and prosecution of suits either on the part of the state or individuals, involving matters of controversy over which he has a general and exclusive jurisdiction; it is sufficient if the contrary does not appear. “There is no difference in principle between a case which does not show that witnesses were examined before the order was made, and one which does not show that a prosecutor could be obtained: if we presumed the judge did his duty in the one, we must in the other.

3d. There are two counts in the bill of indictment. In the first, the inducement for the commission of the offence by the prisoner is charged to have been the execution of a receipt by him as constable to Willie Russell for divers claims against different individuals for collecting, against liability upon which the receipt forged was intended to protect him; andin this count this receipt is set forth in hcec verba, and there are slight variations, between it as thus set forth and the receipt read upon the trial. In the second count the same receipt is set forth as the inducement for the .forgery, but not in the words and figures and only according to its effect.

Upon the trial the reading of this receipt was objected to upon the ground of the variance between it and the description of it according to its tenor in the first count, and the motion was overruled, which was excepted to.

In this we think there was no error. Whatever might have been the validity of the objection, it is confined to the first count of the indictment, (about which we do not feel it necessary to give an opinion,) the receipt was clearly legal evidence upon the second, and the offence charged in both counts being identical, with the exception that the receipt which constituted the inducement to commit the forgery is set forth in the first count according to its tenor; and in the second according to its effect, and the verdict of guilty being general the conviction would be good upon 'the second count though the evidence might not have been legally applicable upon the first. This different mode of charging, has for one of its objects the meeting of this very objection.

4th. It is objected the testimony did not warrant the verdict. We think otherwise; good character is only available in doubtful cases; here if the witnesses swore the truth there is no doubt of the prisoner’s guilt; of the. credibility of the witnesses the jury were the proper judges and the circuit judge was content with the finding.

We therefore think there is no error in the proceedings of the circuit court and affirm the judgment.

•INDICTMENT FOR FORGERY.

Bennett vs. State.

This day came the defendant by his attorneys, and for a further plea in this cause as to carrying into effect the judgment and sentence of this court, so far as the same relates to the confinement of the body of defendant in the jail and penitentiary of this state it ought not to be executed and put in force against him, because he says that since the rendition of the said judgment and sentence in said court at, to wit, in the county aforesaid, on the day of December, 1847, he was by his excellency, N. S. Brown, Governor of the State of Tennessee, fully pardoned and released of the said judgment so far as the same relates to the imprisonment aforesaid, which said pardon is in due form and attested and now here to the court shown; which he is ready to verify, wherefore he prays judgment &c. Stokes & Brien, Attorneys.

“Nett. S. Brown, Governor of the State of Tennessee, to all who shall see these presents, and especially to the keeper of the penitentiary, greeting: Whereas, at the April term, 1846, of the circuit court for our county of DeKalb, Harrison Bennett was convicted of the crime of forgery, and sentenced to undergo confinement for the term of three years in the penitentiary, and which judgment has been affirmed by the supreme court now sitting.

And whereas, Harrison Bennett has been represented to me as a fit person for executive clemency.

Now, therefore, I, Neill S. Brows, Governor as aforesaid, by virtue of the power and authority in me vested, do hereby pardon the said Harrison Bennett of the said offence, so far as relates to the term of his imprisonment yet unexpired, but in no other way interfering with the judgment and sentence of said court; and I do further authorize and direct that the said Harrison Bennett be forthwith liberated and put at large.

In testimony whereof, I have hereunto set my hand, and caused the great seal of the State to be affixed at Nashville, on the 13th day of December, 1847.

By the Governor: N. S. BROWN.”

W. B. A. Ramsey, Secretary of State.

JUDGMENT.

And now came the said Harrison Bennett, and the attorney general for the state, and the council for said Bennett filed a plea of executive pardon since the affirmance of the judgment by this court, and which said plea verified by the said executive pardon, now here produced, being seen and fully understood, and the court being satisfied of the truth thereof, order and direct that the same be sustained. It is, therefore, considered by the court, that the said Harrison Bennett be discharged from the judgment of the court heretofore rendered, so far as his confinement in the jail and penitentiary house for three years is ordered, upon condition, that he pay, or secure to be paid, the costs of this prosecution.  