
    The State vs. Smith.
    The defendant wag indicted for forging the following paper writing.:
    “Rowan County, > State of North Carolina, 5
    The bearer, Martin Rivers, was raised by William E. Williams, of said County and State: This is to certify, that Martin Rivers was freeborn, and bound to me until he was twenty-one years of ago; his time was out in 1819, and has conducted himself honestly and soberly, and behaved himself soberly, and is a well meaning man. This given under my hand, this May, 1825.
    “William E. Williams.
    “Signed and witnessed in the presence of “J. Jeffres,
    Jehugh Hamblin.”
    The indictment, alleged the paper was feloniously and fraudulently delivered to a slave, the property of A, with intent to deprive A of his property in said slave: Held, that the fraudulent making of such a writing, with the intent charged, was not forgery.
    To fraudulently make a writing, which by law would not be evidence for any purpose whatever, does not amount to forgery.
    To constitute forgery, the writing charged to have been feloniously and falsely made, must be of a character, that if it were genuine, if would be evidence of the fact it recites.
    Smith was indicted for forging the following paper wilting:
    “Rowan County, )
    State of N. Carolina. )
    “The bearer, Martin Rivers, was raised by William E. Williams, of said county and State. This is to certify, that Martin Rivers was free-born, and bound to mo until he was twenty-one years of age; his time was out in 1819, and has conducted himself honestly and soberly, and behaved himself soberly, and is a well meaning man. This given under my hand, this May, 1825.
    “William E. Williams.
    “Signed and witnessed in the presence of
    “J. Jeffres,
    “Jehugh Hamlin.”
    
      The indictment alleged, that the paper was feloniously and fraudulently delivered to a negro man slave, named Charles, the property of James Caruthers, as a certificate of freedom, with the intent to defraud said Caruthers; the defendant Smith well knowing said negro man Charles to he a slave, and the property of said Caruthers. There are several counts in the indictment, all grounded upon the same paper. One of them charges the intent, to defraud William E. Williams. The defendant was convicted generally on all the counts.
    
      A. B. Bradford, solicitor for the fourteenth district, for the State.
    
      John Read, for the defendant.
   CatRON, Ch. J.

delivered the opinion of the court.

“Forgery is the fraudulent making or alteration of a writing to the prejudice of another’s right.” This is the difinition given by the fortieth section of the Penitentiary act, extracted from Blackstone’s Com. 4 vol. p. 247, and must be pursued. The “prejudice” to another man’s right, must be an intent to cheat and defraud that other of a right to property, to liberty, &c. This indictment "charges the instrument set forth, was forged to defraud James Caruthers; and second, to defraud William E. Williams. Could the right of either be prejudiced by the instrument? First, as to Caruthers. Suppose the instrument true, as it purports, and that it had been made by William E. Williams, would it furnish any evidence for any purpose affecting the legal rights of James Ca-ruthers? Suppose the slave Charles had claimed to be free, could the counterfeited paper have been given in evidence to prove the fact? No law authorized William E. Williams to give such certificate, and it could not have any force in law, however it might impose on the confiding integrity of mankind, and afford facilities to the slave to pass as free, and thereby enable him to escape from his master’s service. As a falsehood, the paper is oí a most dangerous character; but this is not the question. Is the counterfeiting of it forgery and felony? Could it defraud Mr. Caruthers of a legal right, had it been made as it purports? As a legal instrument it is nugatory on its face, furnishing no evidence of a right to freedom m the slave; nor could the owner’s vested right to his services be legally prejudiced thereby.

An instrument void in law upon its face, is not the subject of forgery, because the genuine and counterfeit would be equally useless — imposing no duly, or conferring no right, as the forgery of a will for lands, having only two witnesses, when three were required, where the court held, the instrument void on its face and no forgery. Vale’s case, 2 East. C. L. ch. 19, sc. 45, p. 953. This adjudication was grounded on Moffatt’s case, 2 Leach, 483, who was indicted for forging a bill of exchange, void on its face. These were extremely strong cases compared with the present. ' This instrument claims no pretence on its face to legal validity, and whether true or counterfeit, is the assertion of a mere falsehood, calculated to impose upon the credulity of society.

It is sufficient to say, Mr. Williams, whose name was counterfeited, could sustain no injury by the act of the defendant, for the reason, that the instrument imposed upon him no duty, nor could its use be to the prejudice of his right.

Much as we may regret the want of power to punish the defendant on this indictment, still we think he is clearly not subject to the penalties of felony, and that the judgment must he arrested.

Judgment arrested.

CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF TENNESSEE.  