
    *Spencer v. The Commonwealth.
    November, 1830.
    Forgery — Evidence—Possession of Forged Notes and Impiements for Forging. — Upon trial of an indictment for forging bank notes, tile fact if proved, of tile forged notes mentioned in the indictment, and other forged notes of like kind, and the plates, implements and materials, for forging such notes, being found in the prisoner's possession, is prima facie or circumstantial, presumptive evidence, that the prisoner was the forger, proper to he given to the jury.
    Same — Same—Possession of Forged Notes in Certain CountyAnd such forged notes &c. being found in possession of the prisoner in the count!' of B. is like prima facie evidence, proper to he given to the jury, of the fact that he committed the forgery there.
    Spencer was indicted, tried and convicted of felony, in the circuit court of Botetourt, at September term 1830, under the statute, 1 Rev. Code, ch. 154, l 1, p. 578. The indictment contained two counts: he was convicted on the second, which charged, That the prisoner, at the county of Botetourt and within the jurisdiction of the circuit court thereof, on &c. feloniously, made, forged and counterfeited, and caused and procured to be falsely made, forged and counterfeited, and aided and assisted in falsely making, forging and counterfeiting, a certain note, purporting to be a note of the farmers’ bank of Virginia for ben dollars (which was regularly set forth and described) with intention to injure and defraud the president, directors and company of the said farmers’ bank of Virginia. The jury ascertained the term of his imprisonment in the penitentiary to be ten years, and the court passed sentence on him accordingly. But he filed three bills of exceptions to opinions of the court given at the trial; and now applied to this court, by petition, for a writ of error to the judgment.
    1.The first bill of exceptions stated, that at the trial, the attorney for the commonwealth proved, that the prisoner was seen in the county of Botetourt, in November 1829, in company with one Lewallen, at a public house, and representing himself as a Dr. Davis, a hog drover, from Kentucky, and offered to shave a hundred dollar U. States note, but did not shew it; paid thirty seven and a half cents for repairing his watch, in good money; and inquired the way *to the Big Lick in Bote-tourt : that he was seen on the 2d day of March court 1S30, ata public house, with one Eppes in Botetourt, when he represented himself as a Dr. Davis of Tennessee, and said he was going to Nashville: that a warrant was then issued against him, to apprehend him for forgery, and he was pursued until the witnesses supposed he had left the county: that about twelve or sixteen days after, as he was passing through the town of Eincastle in Botetourt, on horseback, he was arrested and taken from his horse; and his saddle bags being examined, there were found in them above 3500 dollars in counterfeit money, including the ten dollar note for the forgery of which he was indicted; a number of plates, from one of which that note, and many others of the same denomination, were obviously struck; two cannisters of ink, one not full; blank papers, about the size of a bank note, one of which had a slight impression of a bank note on it; part of the notes were imperfect, some of them unsigned, others completed, some erased ; a five dollar D. States bank note with the engraving in part erased, and the signatures left; a twenty dollar U. States bank note plate; a plate with broker’s marks engraved on it, and some notes with broker’s marks on them, obviously made from the plate. He had some good money with him. When the prisoner was examined, he represented, that he stopped at a house in Campbell county, and going to the stable to feed his horse, pulled down a bundle of fodder; that the notes fell out; that he took them to the master of the house, who said he knew nothing of them; that he carried them to Philadelphia, and brought them back with him: he represented the ink to be blacking. There was no evidence, that he had been out of the county of Botetourt, from the time he was seen in November, and no evidence that he resided in that county, or that he was ever in the county, except the times above stated. He proved, that a witness introduced by him, had, in October 1829, moved his mother from Franklin county, Virginia, to the state of Kentucky; that he went with that witness to ^'Kentucky, where they met with Lewallen: the witness returned in'December 1829, but did not know when the prisoner returned. Another witness for the prisoner, testified that he had seen notes made in a bank in Ireland, and they used a press weighing about 500 pounds. And this being all the evidence in the case, the attorney for the commonwealth moved the court to instruct the jury, that the circumstances above set forth, were proper evidence for the jury, and were prima facie evidence, that the forgery was committed in the county of Botetourt, and proper for their consideration ; which instruction the court gave; and the prisoner excepted to the opinion.
    2. The second bill of exceptions stated, that, at the trial, the prisoner’s counsel moved the court to instruct the jury, that if they were not satisfied from the evidence, that the forgery charged in the indictment, was committed in Botetourt, it was their duty to render a vefdict of acquittal. The court instructed the jury, that they ought to be satisfied, that the making and forging, or assisting in making, forging and counterfeiting, was committed in Botetourt; but that the prisoner, being first found in possession of the other notes, plates, ink and paper, in the first bill of exceptions mentioned, in Botetourt, was prima facie evidence of the fact of his having counterfeited them in Botetourt. The prisoner excepted to the latter part of this instruction.
    3. The third bill of exceptions stated, that, at the trial, the prisoner’s counsel moved the court to instruct the jury, that, if they were not satisfied from the evidence, that the prisoner falsely made, forged and counterfeited, or caused and procured to be falsely made, forged and counterfeited, or acted and assisted, being present, at the forging of the note in the indictment mentioned, they ought to find a verdict for the prisoner. The court instructed the jury, that, though they ought to be satisfied, that the prisoner either did forge and counterfeit the note, or act or assist in the making, forging and counterfeiting, or was present at the making, forging and counterfeiting thereof, j'et that the prisoner being *in possession of this note, as well as the other notes, and plates and ink, found in his possession, was prima facie evidence of his having forgea or assisted in, forging the note in the indictment mentioned. To the latter part of this instruction, the prisoner excepted.
    The prisoner, in his petition for the writ of error, assigned the following errors: That the court erred, 1. in instructing the jury, that the prisoner being found in possession of the note mentioned in the indictment, as well as other [forged] notes, plates and ink, amounted to prima facie evidence of his having forged or assisted in forging the note in the indictment mentioned; and 2. in instructing the jury, that the prisoner being first found in possession of the notes, plates, and ink, in Botetourt, was prima facie evidence of his having counterfeited them there.
    F. W. Risque for the petitioner; the attorney general for the commonwealth.
    
      
      Forgery — Evidence—Possession of Forged Notes in Certain Counties. — Upon the trial of an indictment for forging hank notes, evidence that the prisoner had the forged notes in his possession in a certain county is proper evidence to go before the jury of the fact that he committed the forgery in that county. To this point, the principal case is cited with approval in State v. Tingler. 32 W. Va. 552, 9 S. E. Rep. 937; State v. Poindexter, 23 W. Va. 814.
      “It is not necessary that witnesses should be produced to testify that the offence was committed in the place charged. It is enough if the proof be inferential.” State v. Hobbs, 37 W. Va. 816, 17 S. E. Rep. 382, quoting from Whart. Crim. Law (8th Ed. § 108), and citing the principal case.
      See further, monographic note on ‘'Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865.
      The principal case is also cited in Perkins v. Com., 7 Gratt. 656; Wash v. Com., 16 Gratt. 541.
    
   UPSHUR, J.,

delivered the opinion of the court. The most serious difficulty the court has had in this case, has grown out of the ambiguous phraseology of the bills of exceptions. Some of the judges think, that the expression “the prisoner being first found in possession of the other notes” &c. in the second bill of exceptions, and the expression ‘ ‘the prisoner being in possession of the note in the indictment mentioned” &c. in the third bill of exceptions, ought to be construed as an instruction by the court, that these facts were proved; and of course, that the court, in this respect, encroached upon the proper province of the jury. If this construction had been admitted by the other judges, there would have been no difference of opinion among us, in regard to the law. A majority of us, however, think, from an attentive examination of the record, that the judge meant to submit those facts hypothetically, and that the jury must have so understood him. The expressions above mentioned are not stronger than this, “it being proved, that the prisoner was found in possession” *&c. which, without any violence to language, may be interpreted, if it be proved &c. or, if the jury shall believe &c. or, when it is proved &c. to which form of insürúction no objection could be urged. We feel warranted in believing, that this wasj the meaning of the judge, and that the jury so understood him, from the particular terms used in the first bill of exceptions; wherk after stating all the facts proved on the tri,al, the court instructed the jury, that they were prima facie evidence &c. If the instruction contained only these words, they would be precisely equipollent with the expressions “being found in possession” &c. and would receive the same construction: but the court, in the first part of this instruction, explains its own meaning, by saying that “the circumstances above set forth, were proper evidence for the jury.” It is to be remarked that the court did not tell the jury, that the facts above proved, were proper evidence for its consideration, nor is there any other word or expression, which warrants us in concluding, that the court meant to assume that the facts were proved. “The circumstances above set forth,” that is, the circumstances in relation to which evidence had been offered, were proper for the consideration of the jury. And how were the jurj' to consider them? Not as facts proved or assumed as true; but they were first to consider, whether the facts were proved or not, and if the evidence in relation to those facts, which the court first declared to be proper for the jury, should satisfy the jury, that the facts themselves were proved, then that those facts amounted to prima facie evidence of guilt, and were proper for their consideration, though not conclusive upon them. This, we think, the fair construction of the language of the court in the first bill of exceptions, and the construction which must have been placed on it by the jury. We think it correct, as a general rule, that where more than one bill of exceptions, is taken in a cause, the court, in considering any one of them, may refer to others, in order to ascertain the precise point to which the mind of the judge was directed, and the precise extent to which he ^intended his instruction should apply. This rule is still more applicable to a case in which all the evidence or facts proved, appear in one bill of exceptions, and all the instructions given relate directly to those facts. In the case before us, the second bill of exceptions contains a direct reference to the facts or evidence stated in the first. The instructions in the two cases are in pari materia, and ought, as we believe, to receive the same interpretation. And though the third bill of exceptions contains no such direct-reference, still we feel authorized, by the intimate connexion of its subject with that of the other two, to put upon that also, a similar construction.

Upon the whole, a majority of us consider the record in this case, as presenting only the following questions: 1. Is the possession of forged bank notes, together with the plates and other implements used in forging them, prima facie evidence, that the person so found in possession, did feloniously forge them? And 2. Is such possession prima facie evidence, that the forgery was committed in the place where such possession was first discovered?

1. Bj the terms “prima facie evidence,” as used by the judge in the instructions before us, we understand only, such a state of facts, as upon first impression cannot be reasonably accounted for without supposing the guilt of the prisoner. In the absence of every thing to contradict or explain it, such a state of facts ought, in general, to be considered by the jury sufficient to warrant a verdict; but it would not bind them with the force of conclusive proof. It is nothing more than a high degree of presumptive proof, or in other words, such a state of facts, as cannot, by natural and fair construction, consist with the innocence of the prisoner. In some cases of presumptive proof, the influences would be strong and irresistible; in others, weak and wholly inconclusive. In all cases, the jury are to weigh the circumstances, and to draw from them whatever inferences they may warrant. The instruction, therefore, that the facts, in the present case amounted to prima facie evidence of *guilt, was only saying, in other words, that they were such that the jury might (not that they were bound to) infer from them the guilt of the prisoner, without any auxiliary evidence. We think this instruction strictly correct. We can see no reason, why the possession of forged notes, with the plates and other instruments used in forging them, should not create as strong a presumption, that the person so found in possession is the actual forger, as the possession of stolen goods creates, that the person found in possession of them, is the actual thief. In both cases, the presumption may be repelled by proof, explaining or accounting for the possession; but in the absence of all such proof, the inference of guilt, upon any fair view of human conduct, is as strong in the one case as in the other. In the case before us, the inference is still farther justified, by the fact, that the prisoner was found in possession, not only of the note described in the indictment and of the plate with which it was made, but also of a large amount of other forged notes and the plates used in forging them. Apart from all. direct authority, therefore, we consider the principle reasonable in itself, "and strictly within the analogies afforded by other well established cases of presumptive proof. It derives strength also, from the authorities applying to the second question, which we now proceed to consider.

2. In the case of the U. States v. Britton, 2 Mason’s Rep..470, judge Story, sitting in the federal circuit court, decided, that a check drawn in Philadelphia, in favor of a person then in Philadelphia, but presented in an altered and forged state in Massachusetts, should be presumed, in the absence of all proof to the contrary, to have been altered and forged in Massachusetts. His words are these: “If its existence in a forged state, is not proved in any other place, it must, from the necessity of the case, be presumed to have been forged where its existence in such state is first made known.” This decision is not opposed, if it be not supported, by the authorities relied on by the prisoner’s counsel, for the contrary position. In Crocker’s case, 2 *Leach, 987, (better reported in 5 Bos. & Pul. 87,) the prisoner was indicted for forgery committed in the parish of St. Edmund in Sarum, Wiltshire: the forged note bore date in Somersetshire, in which county it was proved that the prisoner resided at the time of the date of the note; and there were other circumstances tending to shew, that the forgery was not committed in Wilts but in Somerset. The prisoner was pardoned, and the judges gave no opinion upon the point before us. We are informed, however, that it was understood that a majority of them thought the evidence not sufficient to prove the forgery in Wilts. In Thomas’s 'case, 2 East’s C. E. 605, the prisoner was indicted for stealing certain letters from the mail; and the venue was laid in Middlesex, where the letters were first found on him. Here also, there was conflicting evidence as to the place where the larceny was committed, and the jury expressly found that it was not committed in Middlesex. In Parke’s case, 2 Eeach, 775, the question before us did indeed, pass under the notice of the judges, but it was hot the principal question, and was not solemnly decided either way. Parkes was indicted at the Old Bailey, for the forgery of a promissory note, which bore date at Righton, Salop. Some of the judges thought that the fact of his being founded in possession of the note in London, was prima facie evidence of his having forged it there; all agreed, that it was evidence proper for the consideration of the jury, but the majority without deciding, whether it was prima facie evidence or not, were of opinion that there was sufficient proof that the forgery was not committed in London ; and therefore, that the presumption arising from the fact of his having been found in possession of the forged note there, was contradicted and removed. It is manifest that neither of these cases is in conflict with Britton’s case. They no where disaffirm the principle, that the possession of a forged instrument is prima facie a presumptive proof, that the forgery was committed at the place where such possession was first made known, but they all go upon the *ground, that there was sufficient counter proof in the particular case, to remove the presumption.

Eor these reasons a majority of the court are of opinion, that the writ of error ought to be denied. But in this opinion judges Lomax, May, Semple and Johnston do not concur. All those judges, after much consideration, have placed a difierent construction upon the bills of exceptions from that which is herein assumed. Had this been otherwise, judge Johnston would have concurred with the majority of the court; and judge Lomax would have so far concurred, as to consider the possession &c. as prima facie evidence of aiding and assisting, at least.

Judges May- and Semple are of opinion, that although the evidence would have been legal and proper for the consideration of the jury, and that they might well have deduced therefrom the inference of the prisoner’s guilt, yet that it was error to instruct them that it was prima facie evidence thereof.

Writ of error denied.  