
    Walton vs. The State.
    A forged order, requesting that the goods mentioned in it might be de-Jivered to the person therein named, is not within the act of assembly of 1829, ch. 23, sections 40, 41 and 50, if the drawer has no interest in the goods mentioned in such order. And an indictment upon such order must aver that the person whose name is forged had an interest in the goods.
    The plaintiff in error was indicted in the circuit court, for making, forging and offering to pass a certain forged and fraudulent paper writing, contrary to the provision of the penal code of 1829. The indictment contained five counts, to all of which the defendant pleaded not guilty. Upon the trial, the jury acquitted him upon the first, second and fourth counts in the indictment, and found him guilty in manner and form as charged in the third and fifth counts. The defendant then moved the court to arrest the judgment on said third and fifth counts of the indictment. The court sustained the motion as to the third count, and arrested the judgment thereon, but overruled the same as to the fifth count, and passed sentence upon the finding of the jury against the defendant. The fifth count of said indictment is as follows, to wit: “And the grand jurors aforesaid, upon their oath aforesaid, do further present, that the said William Walton, afterwards, to wit, on the said fifth day of August, in the year of our Lord one thousand eight hundred and thirty-three, and after the proclamation aforesaid, with force and arms, in the county of Maury aforesaid, did fraudulently and feloniously offer to pass and transfer to the said James Wilkins, then and there being, a certain other forged paper, he, the said William Walton then and there knowing the same to be forged, which said forged paper is as follows, that is to say:
    'Mr. Wilkins, please to let Wm. A. Johnson have a thirty-five dollar watch, and you will please your friend,
    Charles Young;’
    
      with intent to defraud the said James Wilkins, contrary , „ „ , . , , , . . , to the form ol the statute m such case made and provided, and against the peace and dignity of the State.”
    From the judgment of the circuit court in refusing to arrest the judgment upon the fifth count of said indictment, said defendant prosecuted a writ of error to this court, and here assigned the following error, to wit:— “The said defendant says that the circuit court of Maury erred in not arresting the judgment on the said fifth count of said indictment, because the paper set forth in said fifth count is not such an instrument as the forging and making, passing, or offering to pass, will subject the party offending, to the pains and penalties of forgery, under the act of 1829, ch. 23.
    T. H. Cahal, for plaintiff in error.
    The defendant was indicted at the October term, 1833, of the Maury circuit court, for making and offering to pass the paper set out in the five counts of the indictment. The jury acquitted him on the first, second and fourth counts, and found him guilty on the third and fifth counts. Amotion was made in arrest of judgment. The court arrested the judgment on the third count, but overruled the motion on the fifth, and sentenced the defendant according to the finding of the jury, to three years confinement in the penitentiary.
    The third count of the indictment charges that “William Walton feloniously and fraudulently did forge and make a certain writing in the name of Charles Young, (meaning Charles P. Young) &c. &c. in the words, &c. „.to wit:
    “Mr. Wilkins, please to let William A. Johnson have a thirty-five dollar watch, and you will please your friend,
    Charles YouNg.”
    with intent to defraud one James Wilkins, &c.”
    The fifth count charges, that “William Walton did fraudulently offer to pass and transfer to the said James Wilkins, a certain forged paper, he, the said William Walton, well knowing the same to be forged, which said forged paper, &c. [set out as in the third count,] with intent to defraud the said James Wilkins.”
    This indictment is founded on the penal law of 1829, section 40 and 41. This act intended to substitute for hanging, whipping, &c. confinement in the penitentiary for most of the common law and statute felonies, whether made such by the British parliament or our own legislature. In a few instances it has raised some offences which were but misdemeanors to the grade of felony; but this, as I contend, has in every case been done by express words, and not by implication. As to forgery, I insist it has made no change except in the mode of punishment, and that it was not the intention of the legislature, on this subject, to create any new offence, but to punish a well known and well defined crime in a new way; and so far from having created any new offence, they rather narrowed than enlarged its definition. One might fancy that it had been attempted to restore the common law to its ancient simplicity in the definition of forgery. The identical language of Blackstone has.been adopted, who himself quotes it from some old black-letter writer in the time of the Edwards or the Henrys. See 4 Black. 248. Tennessee, then, as to this crime, is where England was when this language was first used, unless this court is governed by statutory definitions and adjudications upon statutes; and if it does, the prisoner must be discharged.
    When a statute uses words familiar to the common law, or used in other statutes on the same subject, they are to be understood in their usual legal signification. I need not cite authorities to sustain this position. They are every where, and known to every lawyer. “Statutes,” says Chancellor Kent, “are to be construed with reference to the common law; for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely- required. ” 1 Kent, 433
    At the time of the enactment of our penitentiary law, this word forgery was a well defined legal term; its limits settled by a long and uniform course of decision, and well known to the profession. Had it been the design to create any new offence, it would have been described. This indictment is founded on this supposition. In some of its counts, it designates the paper by its usual name, “an order,” “a warrant and order.” That the making of such an instrument as that set out in this indictment, cannot be punished as a forgery, was settled by Mary Mitchell’s case, Fost. 119. And see the editor’s note in Lockett’s case, 1 Leach, 95. See Wil-loughby’s case, 2 East, 582: 2 East, 936. Williams’ case, (1 Leach, 115) which was precisely such an order as Walton made. In Clinch’s case, (1 Leach, 540) the doctrine of the preceding cases was reviewed, and the judges unanimously agreed, “that the forged warrant, or order for the delivery of goods, must purport to be the order of the owner of the goods, or of some person who has, or at least claims an interest in, or who has or at least assumes a disposing power over such goods, and takes upon him to transfer the property or custody of them to the person in whose favor such order is made.” Walton addressed this order to the mere pleasure of Wilkins. It is, in fact, nothing but a simple letter of request. These decisions were made in 7 Geo. II. Our act on this subject, before the penitentiary law, is a copy of 7 Geo. II. Our legislature thus adopted the British statute with its judicial construction. Therefore, as the penal law of 1829 neither enlarged the statutory offence, nor altered the common law on the subject of forgery, the decisions on the statute 7 Geo. II, are binding authority on this subject. But it was said by the solicitor general below, and assented to by the court,.(and I suppose the same argument will be urged here) that though this might be true as to the act of 1829, sec. 40, yet section 41 had introduced a new law by the words “forged paper.” These words are too vague and general to define any species of crime in a free country where law is administered by prescribed rules, and where it is the duty of a judge to give no latitude of interpre-tration to a penal statute, but to construe it strictly and according to its letter. By 14 Geo. II, the British parliament made the stealing of sheep or other cattle a felony without clergy. The judges held that the act only extended to sheep, and that the words “other cattle” were so vague that they meant nothing. 1 Black. 89. This case is directly in point, and ought to settle the question. Is not the phrase “other cattle” far more definite than “forged paper?” It could, at most, be applied to only about half a dozen species of domestic animals, while “forged paper” may mean any piece of writing, a deed, a note, a letter, or a newspaper essay; or it may mean a piece of paper without any writing on it. If in the name of one of your friends I write to one of your honors, that your wife is at the point of death, and that your daughter has eloped with a black-leg, this is a forged paper. Any of the thousand mischievous pranks of the same sort, which are daily played oiF among the young and the giddy, will be felonies, if this construction prevail. A doctrine which leads to such folly and absurdity, cannot be the law of an enlightened country. To avoid confusion, we must look to the books and pursue the beaten track. When we depart from the adjudicated cases, we are on a shoreless ocean without compass or pilot.
    No precedent can be found, either at common law or under any statute, for inflicting on a man the penalties of forgery, for making or passing such a paper as that set out in this indictment. It was a strange notion in the circuit judge, that it was no crime to make this paper, and yet a penitentiary offence to attempt to pass it. But it proves that it is safest to adhere to precedent, when we see a man eminent m his profession, arriving at conclusions so inconsistent, by discarding the lights of past ages and trusting to his own judgment in the construction of vague and indefinite terms. What then, it may be asked, was the purpose of the legislature in enacting the forty-first section? They had in preceding sections of the act defined the punishment for counterfeiting the coin and paper currency, and the mercantile securities of the country, which we all know is but another name for forgery; and lest they might have omitted some of the common law and statute forgeries, they inserted the 41st section through abundant caution, to embrace every offence before that time punished as forgery, without any intention of creating any new species of crime by loose and vague words, but, as was before said, the design was to institute a new punishment for an old offence.
    The paper on its face does not purport to bind any ■person to the performance of any duty; it is addressed to the mere pleasure of Mr. Wilkins. How can this, as a forgery, be made to mean James Wilkins? Wilkins is a common name in this country, and it might be John or Joseph, or any other man of that name. In law, the Christian name is as much regarded as the sur-name. The authorities are full on this point. In Clinch’s case, at page 544 of 1 Leach, the court says, “as the order, therefore, must be such an order as, if true, the party had, or assumed to have an authority or power to make, so it must be directed to the holder of, or to the person interested in, or having possession of the goods, which are the subject matter of the order.” Can an order directed to a man by his sur-name alone, in a country where there are so many men designated by the same name, be said to be directed to any certain person?
    This paper is a mere polite letter of request, and when the words of the statute, “offer to pass or transfer,” are applied to it, they make nonsense. One may be said to pass coin, bank bills, bills of exchange, checks, orders, or any sort of negotiable paper; but who ever before heard of passing a letter? As I have mentioned orders, it is well to apprise the court that the orders which our statute makes obligatory, are accepted orders for the payment of money and nothing else. See Hay. & Cobbs, 234, act 1762, sec. 4.
    It will probably be asked, if this offence be not forgery, what is it? It is the mere attempt to commit the crime mentioned in sec. 60 of the penal law and the stat. 33 Hen. VIII, of obtaining money, goods, &c. by false pretences, counterfeit letters, &c. See 4 Black. 158, and note.
    Had the prisoner obtained the watch, as he attempted, he would have been guilty of a penitentiary offence under sec. 60; but there is no clause in that section which raises an attempt to commit this crime to an equal grade with itss actual perpetration. I know it has been said by a learned judge, that these counterfeit letters mentioned in 33 Hen. VIII, are common law forgeries, but that was amere dictum, and is not supported by a single adjudicated case, ancient or modern, English or American.
    
      A. Hays, Att’y. Gen. 7th Sol. Dist. for the State.
   Peck, J.

delivered the opinion of the court.

Walton was convicted upon the following charge: That he, with force and arms, did fraudulently and felo-niously offer to pass and transfer to the said James Wilkins, then and there being, a certain other forged paper, he, the said Walton, then and there knowing the same to be forged, which said forged paper is as follows, that is to say:

"Mr. Wilkins, please to let William A. Johnson have a thirty-five dollar watch, and you will please your friend,
Charles Young.”

With intent to defraud the said James Wilkins, contrary to the form of the statute in such case made and pvovi-ded, and against the peace and dignity of the State.

He was confined in the penitentiary, and Mr. Cahal having brought up the record, on motion, obtained a writ of error. The prisoner being brought up, the cause is argued by Mr. Cahal for the prisoner, and Mr. Hays, attorney general, for the State.

By the 40th section of the penal code, forgery is defined to be the fraudulent making or alteration of a writing to the prejudice of another’s right; which is the definition at common law. The act then provides, that “whoever shall be guilty of any forgery, other than that hereinbefore enumerated, shall undergo confinement in the jail and penitentiary house for a period not less than three nor more than fifteen years.”

Section 41. ‘ ‘Whoever shall fraudulently pass or transfer, or offer to pass or transfer, any forged paper, knowing it to be forged, with intent to defraud another, shall undergo confinement,” (as above.)

If this paper was not of the description of papers mentioned in the 41st section, then the offering to pass or passing the paper would not be within the act; for it cannot be insisted that the passing a paper of such a character that it cannot in legal construction be denominated a forgery, is a higher grade of offence than the making of it; and this brings us to the question, was the making this paper a forgery within the act, or at common law?

It purports to be a letter of request, addressed to Mr. Wilkins. The right to the thing requested is not assumed in the note of request; it is addressed to the pleasure of Wilkins, and is not authoritative, nor is it averred that Young had a right to draw an order for the watch. Clinch’s case, 1 Leach, 540.

The order, if it can be so called, not purporting to be made by the owner, or of any one claiming an interest in the watch, or assuming a disposing power, the case is gov-ernedbythe rule laid down in Williams’ case, 1 Leach, 118: Mary Mitchell’s case, Foster 119, and Clinch’s case, 1 Leach, 540.

It is not the terms used in indictments that fix the character of the offence. The reason why the tenor of an instrument should be set out is, that the court may judge of its character, and then apply the law. In common parlance this might be called an order; so it might be called a letter or request. But applying to it legab construction and definition, it is not found to answer the description of the forged paper meant by the act, because on its face it does not purport to come from one assuming the control of the article requested, nor is that fact averred.

It is assumed that the case is governed by a previous law, the act of 1811, ch. 1, sec. 3.

The indictment is predicated on the penal code; it avers that the law became in force by proclamation of the governor, (as the act itself required,) to fix the time from whence its operation should commence. This act defines and points out the different species of forgery. The concluding section of the act repeals all laws within the purview. We do not enquire at present whether it was the intention of the legislature to repeal the acts of 1811, ch. 1, sec. 2 and 3, because that act does not support the present indictment any more than the act of 1829. We consider all the reasons which stand opposed to the sufficiency of the indictment under the act of 1829, apply with equal propriety to the act of 1811.

It is our business to administer the law. Whatever may be the opinion of this court touching the very improper and fraudulent intent of the prisoner, however censurable in a moral point of view he may be, still the conviction is illegal. The judgment must be arrested and the prisoner discharged.

Judgment reversed.  