
    CONSTITUTIONAL COURT,
    COLUMBIA, DEC.
    1800.
    The State v. Holley.
    ,,A forged warrant or order for the delivery of goods is within the -act oi-1736, although it be in the form of a request, and do not purport that the person, whose name is forged, had a right to make such an .order, or that the person, to whom it was directed, was bound to obey it.
    In an indictment for forgery, to ..describe the forged instrument as “ a warrant or order,” is not charging the offence .disjunctively, and .affords no ground to arrest the judgment.
    An indictment concluding “against the form of the’statute in such case made and provided, and made of force in the State aforesaid,” cannot he sustained under an act of assembly of this State; although it he entitled '« an act for putting in force,” certain English statutes, and the English statute relating to the offence be copied nearly verbatim in the act of as- ' sembly.
    j^Vhere judgment is arrested for a .defect in the indictment, the prisoner is not entitled to his discharge, but may be remanded for trial upon a new indictment for the same offence.
    Motion in arrest of judgment. The prisoner had been tried and convicted in the Court of Sessions of Kershaw district, on an indictment for forgery. .The first count was for forging a certain order for the delivery of goods, with the name of Charles Evans thereto subscribed, directed to one Robert Coleman, with intention, to defraud the said C. E. .The second count charged the prisoner with having uttered, as true, a certain false and counterfeit warrant, or order, for the delivery of goods, with intention to defraud R. C. The indictment concluded, “ against the form of the statute in such case made and provided, and made of force in the State aforesaid,” &c.
    . The jury found the prisoner guilty of the crime set forth in the latter count of the indictment, and acquitted him of the charge laid in the first count.
    The counsel for the prisoner urged three principal grounds of' exception, to the indictment, in support of the motion in arrest of judgment.
    First. That the warrant or order, for delivery of goods, which the prisoner was convicted of having uttered and published, was not such a warrant or order, for the delivery of goods, as the- law under which he Was indicted, intended, of can bp supposed t<? mean.
    Bee a. a, Jsf
    
      Second. That the charge against the prisoner, on whieh be stands convicted, is expressed in the alternative, viz. That the prisoner did utter, and publish, as true, the warrant or order, for delivery of goods specified in the indictment.
    Thirdly. That the indictment, in the concluding part thereof, charges the offence as having been committed against the form of the statute in sueh case made and provided, &e.; whereas, the same ought to have been charged as having been against the act of assembly of this State, in such case made and provided.
    The warrant or order for delivery of goods, was in the form of a request, that the goods specified should be delivered to the bearer.
    In support of the first exception, it was argued, that it does not appear by the terms of the order, (nor did it appear at the trial,) that C. E., the prosecutor, whose name was subscribed to the forged order, had any right to draw such an order on R. C., who was a merchant in Camden, in consequence of having any power over the goods of R. C., or having funds in the hands of the said R. C., or credit in his store. That the order was expressed in such terms as to manifest the contrary, since it applies to the favor of the person on whom it is drawn, and is in tfie form of a request, and intimates no authority to make a demand, Mary Mitchell’s case, as reported by Foster, C. L, 119, was cited as an authority to this point ; and it was strongly insisted, that in the interpretation of criminal laws, in favor of life and liberty, the utmost strictness was proper, especially in cases of the nature of the present case. That our criminal code is extremely severe and sanguinary; and it would be wise in the administrators of our laws to imitate, in this respect, the conduct of the judges of Eng. land, from which country we have derived our laws in general, and, particularly, the law in question, who have always been- in tfie habit of construing their criminal statutes with the utmost rigor, thereby affording all the security in their power, consistently ■yVilh their duty, to thp accused, against the severity of statute law.
    Many cases were cited to shew, that this principle of construction had always prevailed in England, and to evince the wisdom and policy on which it is founded ; and, particularly, the following from Leach, C. L. viz. Ellor’s case, 823. Locket’s case, 94. Williams’ case, 114. It was, therefore, hoped, that in this case the court would recognize this humano and wise principle, which, if suffered to operate with due force, would go to exculpate the prisoner, since it must be evident from the words of the order itself, that it is a mere request, and not a warrant or order within the meaning of the statute ; a writing, requesting as a favor, that R. C. would oblige C. E. by delivering to Holley the articles therein mentioned, and not commanding him to do so, or requiring him to do it, by virtue of any pretended authority on the part of the person whose name is forged. It was not denied but that this doctrine may extend, in some measure, to controvert the authority of West’s case, formerly adjudged in Charleston, and reported by Mr. Justice Grimke, in his South Carolina Justice of Peace, p. 205. But it was insisted, notwithstanding, that the authority of that case ought not to weigh against the reason and policy of the principle contended for: and, besjdes, in West’s case, Colonel Washington, whose name had been forged, was known tobe a man of large fortune and unquestionable Gi’edit, and, moreover, had dealings with Mr. Gregory, the merchant on whom the counterfeit order was drawn, and had funds in the hands of Mr. Gregory, which entitled him to draw in the manner the forged order imported ; which was not the case with Mr. Charles Evans, who had no account current with Mr. Robert Coleman, and was not entitled to draw any order for the goods in question : and, therefore, a distinction was attempted to be drawn between cases, where the party, whose name is forged, has authority to draw on the party to whom the forged order is directed, and where he has no such authority; and it was argued, that in the first case, the party on whom the order is drawn, being obliged to comply with the terms of the order without delay, cannot urge, as an excuse, that he has delayed to answer the same upon any suspicion that the same is a forgery : and, therefore, if such order be forged, the person passing the same, knowingly, is within the meaning and operation of the act. But that it is different where the person, whose name is forged to the order, has no authority to make such an order or request; and that in such case, as the party to whom the order is directed, is not bound to comply with the contents thereof, he may delay, er refuse to answer the same :_and it is his own folly if he will answer it, with-it. being first satisfied that it is genuine. And, therefore, being a case of fraud which is not caículated to injure commerce, or to affect the general interests of society in such a degree as toTequire the interposition of a law so very severe as that now'in'question, it was contended, that it was not within the intent and meaning of the act of assembly ; and that the present case was similar, and turned on this distinction, by which the prisoner must appear not to be liable to punishment UXJ•der the act: and, therefore, the judgment ought to be arrested.
    To maintain the second ground, if yvas contended, that the samq principle of strict construction, which was urged in relation to the first exception, applied in relation to indictments which ought always to charge the offence with sufficient certainty, and in explicit and positive terms, and nut disjunctively, as in the present case. That the word “warrant,” is not synonymous 1 with the word “ order ;” and, therefore, the charge being for passing á forged warrant, of .order, was uncertain, for it does not appear whelher the forged writing was the one or the other. • To support this exception, was quoted, 2 Hawk. P. C. sec. 58. Iting v. Stocker, 1 Salk”, 342, 37J.’ 5iVíod. 137.
    To maintain the third ground, it was contended, that the conclusion was wrong, and vitiated the indictment. For although the title of the act of assembly doe’s profess to put in force certain parts of certain a,cts of the parliament of Great Britain, and although the language of the act of assembly is similar to the language of the statutes of the 7th Geo. 2, c. 22, and c. 25 ; yet the enacting clause oftheact which creates the crime in question, derives no aid or authority from any English statute, and has do retrospect or reference jto any such statute. It is an independent, absolute, and unrestrained act of the legislature of this countiy, uncontrolled by, and unconnected' with, any law of Great Britain, or any other statute law whatsoever : and does not declare either expressly, or by inference, any former ¡•statute to be made of force thereby; but does sufficiently set forth the nature of the offence, and prescribe the punishment, and requires no aid, from any other law, to make it complete anti effectual.. And, moreover, it'contains a proviso against attainder and corruption of blood, which is not to be found in any of thq British statutes referred to in the title of the act: wherefore it was manifest, beyond all doubt, that the act of assembly has not made of force here, any statute of Great Britain, or of any other government, so as to render it necessary for us to resort to that stafute, so made of force, in order to know what the law on the sub. ject.is, as is the case in relation to sundry statutes of Great Britain, made of force by the act of assembly of the year 1712 ; and, there, fore, it could hot be necessary to refer to any such statute in the in.dictment: and not being necessary, the conclusion of the indictment which contains such improper reference is vicious, and deJ stroys the indictment.
    In answer to.these exceptions, it was argued, that good reason and sound policy were both against the doctrine contended for by the counsel for the prisoner, on the first and second grounds, on which they had founded their motion. That with respect to the first point, it was obvious, if this doctrine should obtain, that all the evils the act of assembly was intended to prevent, might exist in Society, and be suffered with impunity ; fob the evil minded Would soon learn sufficient cunning to couch their orders for money or goods, in the terms of a request, and address them apparently Mi the favor of the persons to whom they may direct such orders : and with regard to the distinction which was drawn between casos where a, party has a right to give an order, and where ho has not' such right, it was answered, no suCh distinction is warranted by any book case, nor is it consistent with the letter or reason of the law; and that the mischiefs resulting to the community W'as as much to be guarded against in the one case as in the other : for the immediate consequence of such practice, if allowed to prevail with' impunity, would be, as well in the one case as in the other, the annihilation of all confidence and credit between the members of the same society, and among all persons with whom we have dealings and intercourse; and all the inconveniences of such a state of society. To the second point, it was answered, that the objection was more specious than solid; and savored more of technical nicety and subtilty, than sound reason and good sense. That the obvious meaning of the' words, warrant or order, in the sense in which they are used in the indictment, cannot be fairly misunderstood, the words being evidently intended to express the very same thing ,- and whether a warrant, as intended by the act, should be a writing of a different- nature and description from an order, yet in this ease 1 J it could not bo material, since the warrantor order, whether one or fhe other, being set forth particularly in the indictment, might be examined and judged of: and, therefore, the words “warrant or order,” having direct relation to that writing, the tenor of which is set forth, the charge is sufficiently certain and explicit, and is not calculated to distract the party accused in his defence, by leaving him in any doubt with regard to the precise nature of the facts intended to be proved against him ; which is the true ground of the doctrine on which the decisions quoted from the books is founded. As to the last objection, made to the conclusion of the indictment, it was answered, that the title of the act makes it evi. dent that the legislature intended to make the several parts of acts of parliament therein particularly mentioned of force : and the act having enacted the same parts of acts so mentioned, in language similar to that employed by the British legislature in the acts intended to be made of force, must be construed as haying made the same of force, by that mode of adoption ; which is the same as if the act had said, “it is hereby enacted that a certain part of such a certain statute of the parliament of Great Britain, expressed in the following words, to wit, <&c., be made of force,” &c.: by which there could be no doubt the statute must be referred to in the indictment, as a statute of the mother country, made of force here, by the authority of our legislature.
    
      
       See Leach’s C, L. 540, Rex v. Clinch, in which case, it was adjudged, that a forged order for the delivery of goods is not within the 7 Geo. 2, 22, unless it be directed to the person who holds the goods; and that it must appear in the m dictment, that the person whose name is charged to be forged, had authority to make such an order, as the forged order purports to be. But see The People v. Shaw, 5 Johns. 236, in which forging a paper in the following wards, “ Mr. Seward, Sir, let the bearer trade thirteen dollars and twenty-five cents, and you will oblige,” &c., was held to be forging an order, for the delivery of goods, within the statute. And in The People v. Finch, 5 Johns. 287, fudging the following popen “ Due Jacob Finch, one dollar, oil settlement, this day,” &c., vvas also held to be forging a note for the payment ©f money, within the statute.-
    
    
      
       The preamble of an act cannot control the clear and positive words of the enacting part of a statute, although it may explain them, if ambiguous. 4 T! R. 793. Bao, Abr. Stat. I. 2. ; ‘
    
    
      
       See 1 Burr. 400. Lord Mansfield in remarking on alternative charges in indictments, held not good, as ‘'forged,” &e., where one only need be proved, if laid conjunctively, says, “I do not see the reason of it-: the substance is «xáctly the same ; the defendant must come prepared against both, and it makes no difference to him in any respect,”
    
   By the court.

Present, Waties, Bat, Johnson, Rasisat, and Thezvant, Justices.

Waties

delivered the resolution of the court upon the two first points.

It is the unanimous opinion of the court upon the first and second grounds of exception taken to the indictment in this case, in .arrest of judgment, that they are insufficient for the purpose for which they have been offered. The object of the act of assembly would be completely defeated, and the act would be vain and nugatory, if the doctrine contended for, on the first ground, should be established. All the mischiefs, against which the act was provided,. might prevail without any effectual restraint. The rule or principle of construction, therefore, which has been insisted on, ought not to be admitted ; but another rule, founded on policy, and having an eye to the mischiefs the act was intended to avoid, ought to be established : viz. that every order (or warrant,) for the receipt x>f money, or delivery of goods, which is forged, and’ fraudulently passed, with a fraudulent intention, and which is so drawn, and of such a nature as to be calculated, and sufficient to effect the pup fíese' of defrauding the person en, whom th.e fraud is practised, in a case where the common prudence and .caution of a man of nary care and foiesight would not be sufficient to protect him such imposition, must be deemed, and taken', to be such a warrant oí order as the act of assembly intends. According to this principle, the court have no difficulty in deciding, that the warrant .or order* in question in the present case, is clearly within the meaning of the act of assembly; and that the conviction is.not at all affected by this exception. As to the exception to the indictment’s being charged in the disjunctive, the court concur in the .opinion, that it does not vitiate the indictment. It is not such an alternative charge as exposes the party indicted to any danger or inconvenience, and, therefore, is not liable to the objection which has been raised against it on any sound foundation of law or reason.

As to the third and last ground of exception to the indictment, the judges were all of opinion the exception was fatal, and that they judgment should be arrested, and gave their opinions,’ seriatim, 3s follows:

Grisike, J., absent.

Waties, J.

I am of opinion, that the judgment ought to be arrested, because it does not appear that the British statute, against for.. gery ,is made of torce here as such, but only that certain clauses thereof are incorporated in an act of our legislature. The indictment, should, therefore, have concluded against the act, and for want of this must be quashed, , .

Bay, J.

Johnson, J.

I am of opinion that the judgment in this case oflght to be arrested, because the indictment concludes against the British statute in such case made and provided, and made of force in this State, when there is no statute made of force in giieh case. . ,

Trezvant, J.

I am of opinion that the judgment ought to be arrested in this case, because of the conclusion of the indictment being against the form of the statute in such case made and pro»' vided, and made of force in this State, instead of charging' the of. fence to have been committed against the act of the general assem. bly. Although the title of our act of' assembly speaks of making «Je British statute of force' in this country, yet there is no enacting;* clause for that purpose. (SeeP. L. 147.) The act itself create» the offence in the language of the British statute; but this can g^e no more support to this mode of concluding the indictment,than it would have done if the British statute had never been men. honed in the title of the act. The style of this act differs very widely from that of the act by which most of the British statutes were adopted,- and which are now of force in this State. This ground being fatal to the indictment, it is unnecessary to give any opinion upon the others.

Brevard and Mathis, for the prisoner. James, Solicitor of Northern Circuit, for the State.

But the defendant’s counsel also moves to have him discharged, In my opinion he ought not to be discharged, but ought to be indicted again. Vaux’s ease, 4 Rep. 45. The indictment being insufficient, his life was never in jeopardy.

The judgment was arrested ; but the prisoner was remanded to the gaol of Kershaw district, and ordered to be indieted again: before-the next court, however, he made his escape, and left the State.

Ramsay, J,,

presided at the trial.  