
    The State against William Holly.
    Columbia,
    1800.
    Forging an order for the delivery of goods zs felony within the meaning of the statute, though no precise words are necessary to constitute the offence, if it is calculated to deceive and defraud. But if the indictment states the offence to he against a BHtifih act of parliament made of force here, when in fact no such act had ever been made of force, instead of concluding against the act of the legisla.-ture of the state, it is a good ground to arrest the judgment.
    FORGERY. Case from Camden, in Kershaw district.
    1'he prisoner in this case had been convicted of forging an order, purporting to be an order drawn by Charles Evans on Mr. Coleman, a shop-keeper in the town of Camden, in favour of one John Adner, or bearer, for the delivery of goods, and which he desired to be charged to his, Charles Evans's account, and for which, the order expressed, he would be obliged to Mr. Coleman for so doing.
    This order was presented by the prisoner to Mr. Coleman, who refused to deliver the goods on suspicion of its being a forgery ; the prisoner was afterwards taken up’, tried, and eventually convicted of the offence.
    Mr. Brevard, counsel for the prisoner,
    moved in arrest of judgment on two grounds.
    1. That this order was not such an instrument of writing, as the act against forgery contemplated.
    2. That if it was, the indictment was defective, and void for uncertainty.
    On the first ground, Mr. Brevard contended, that this was not such a warrant or order for the delivery of goods, as brought this case under the statute. That the kind of order for the delivery of goods contemplated by the act, was one where (if genuine) the party making the order had or claimed a right and interest in the goods, or a power of disposing of them, and took upon him the right of transferring them as his own property, out of the custody of him who had the possession of them, to the person presenting such order ; when in fact and in truth, he had no such right or power, with intent to deceive the party in possession of the goods.
    
      l.each, so,
    Whereas, he said, the present order (if a genuine one) was no more than a request from Evans to Coleman, to deliver the goods to the bearer upon his, Evans’s, credit, and that he would see him paid for them, which was not an order for goods under the statute ; and in support of this position, he quoted Mary Mitchell’s case, Foster, 119. in which it was determined by ten judges, that a writing similar to the one under consideration, was not a warrant or order within the meaning of the act of Geo. II. against forgery ; only a request to let her have the articles mentioned in the writing, and that they should be paid for : this he said, might be considered only as a collateral undertaking, that if Coleman would let the bearer have the goods, he would see them paid for.
    That from the terms of the order in question, it would appear that Evans had a credit with Coleman in Camden, and had been in the habit of getting goods from him on credit as a customer, and only requested him as a favour to let the bearer have the goods; from this view of the subject, therefore, he contended, that this could not be considered as a forgery within the meaning of the act, especially as no injury was done, the goods having never been delivered; if then no injury was done, no offence was committed. Salk. 375.
    2. Whatever the opinion of the court might be on the first ground he had taken, he had very little doubt of success on this second ground; as he conceived the indictment to be radically defective. Certainty, he observed, was the life of the law ; and in no case was it more essentially ne-cessarv, than in a case where the life of a man was concerned. It ought to set forth with sufficient certainty, not only the nature of the offence, but also the law against which the offence was committed, in order that the prisoner might know how to defend himself against the charge, and the court the nature and extent of the punishment, in case of conviction. That the indictment in this case, states the offence to be against “ a British act of parliament made “ of force in this state when in fact, there never was any such British 'statute made of force in South Carolina; for although in the preamble of an act against forgery, it would seem, as if the legislature meant and intended to make the British act of parliament against forgery of force in this country; yet they evidently abandoned the idea, and passed an act under the legislative authority of South Carolina, against such offence ; and the offence in this indictment, if any has been committed, is not stated to be against the act of assembly of South Carolina, but against a British act of parliament, which never was extended to, or of force in this country; consequently, if there was no such British act of parliament in force against this offence, there could be no transgression of it; and if no transgression of it, then there can be no punishment under it ; he therefore prayed the court, that the judgment might be arrested and the prisoner discharged.
    Mr. Solicitor James opposed this motion,
    and insisted that the act was complete by the delivery of the order to Coleman, and demanding the goods ; because it was then uttered within the meaning of the act, and sent into circulation, as, and for a true and genuine order. The prisoner had then done all that he could, to give currency to this forged order, with intent to deceive and defraud Mr. Coleman out of his goods. It is the parting with the possession of a forged instrument of any kind, that gives it utterance in law; and which completes, the offence, within the mean-» ing of the statute.
    
      The order itself was one, which came within the description of the warrant or order for goods contemplated by the statute, and within its true intent and meaning. There is no specific or express form necessary by this act; “ it de- “ dares the making or uttering of any false, forged, or “ counterfeit warrant, or order for payment of mon'ey, “ or delivery of goods, a felony, if done with intention to u deceive or defraud any person whomsoever.” It is no sort of consequence what the form or tenor of it may be, if it is false and calculated to deceive and defraud. It is this which constitutes the offence of forgery. If this order had been genuine, and Coleman had delivered the goods, there is no question but Evans would have been liable, and must have paid for them. But, on the other hand, as the order was not a true one, if Coleman had delivered the goods on the credit of the paper writing, he would have been deceived and defrauded by it; this offence then was both within the mischief and the words of the act itself. He then relied on West's case, tried in Charleston in 1785, who forged an order in the name of William Washington, on James Gregory, for the delivery of goods ; the prisoner was indicted under this act, and convicted, but was afterwards pardoned by the governor. The solicitor next contended, that it was ver-immaterial, whether the goods were delivered or not; for it was not essentially necessary by this act, that the money should be actually paid, or the goods delivered, in order to constitute this offence ; the bare uttering or delivering the order for payment or delivery was sufficient.
    As to the second objection against the indictment, he said the offence was sufficiently certain and well described, according to approved legal precedents ; and as to the conclusion of its being against an act of parliament made of force in this country, it was well known that the act against forgery in this state, was a transcript of the British act of parliament against forgery, passed in the second and seventh years of the reign of George II. while this was a British colony ; and it was very immaterial, whether the then legislature of the country, declared the same to be of force in 
      South Carolina, or re-enacted the clauses in totidem verbis ; the offence was the same in either case ; and the court could be at no loss, for the nature and extent of the punishment, being declared a felony without benefit of clergy.
   The Judges,

after considering the case fully, were unanimously of opinion, that the making and presenting the order in this case, came within the meaning of the act, and constituted the offence of forgery. That no particular or precise form was necessary; that it was sufficient, if it was false and forged, and calculated to deceive and defraud. That it was not necessary, that the goods should be delivered in order to complete the offence ; the presenting of the order and handing of it to Coleman, was an uttering within the words of the law, although stopped by Coleman on suspicion of its falsity ; and that West’s case, tried in Charleston in 1785, had settled the doctrine in this state. The order in that case was positive, and the goods were desired to be charged to the account of William Washington, the supposed drawer of the order; so in the present case, the order is positive also, and the goods are desired to be charged to Charles Evans, the supposed drawer; there is no ambiguity or uncertainty in either of the cases.

In Mary Mitchell’s case, quoted from Foster, there was a doubt whether it was a request, or an order within the statute : Let the woman have (the things mentioned) and he i( (the supposed signer of the paper) would see them all paid.” This appeared to the judges a doubtful case, and the statute being a highly penal one, the majority of them gave it the mildest construction, though one or two of them thought it came under the statute.

But on the second ground, they were all of opinion, that the judgment ought to be arrested; the indictment states the offence to be against the British statute made of force in this state, when in fact there is no such statute made of force here. If the indictment had concluded against the act of the legislature, in such case made and provided, it would have been good} but as it concludes against a Bri tish act of parliament, which never was in force in this country, it is vitious, and the court cannot by intendment say that the British act of parliament intended to have been made of force here, means an act of assembly against the offence of forgery.

In all prosecutions on penal statutes, especially where the life of a man is concerned, nothing should be left to intendment, or presumption in the pleadings ; every thing in them should be precise, certain and definite, so as to leave no room for uncertainty or ambiguity.

Rule for arresting of the judgment made absolute, and the prisoner was discharged.

Present, Waties, Bay, Johnson, Ramsay and Trele-vant.  