
    Michael Carberry v. The State of Ohio.
    The plaintiff in error was indicted for forgery, in falsely making, and in uttering and passing a forged “ order for the delivery of a pistol with a load,” of the tenor following :
    “Dayton, Sept. 14,’60.
    “ Messrs. Langdon & Buo. — Gents.: Let the bearer have one of your smallest, with load, and charge to me. R. Chambers.”
    Held — That this writing is not, per se, an order for the delivery of a pistol, or other goods of any kind. And that extrinsic proof could not be received to-give it a character and meaning not apparent on its face, the indictment containing- no inuendo, nor statement of facts tending to give it a meaning not disclosed by its terms.
    This is a writ of error to the court of common pleas of Montgomery county.
    The case is sufficiently stated in the opinion of the court-
    
      J. A. Jordon, for plaintiff in error.
    
      James Murray, attorney general, for the state, made the following points in argument:
    The instrument alleged to be forged, in this case, is an. order for the delivery of “ one of your smallest, with load.” The indictment avers that this was an order for the delivery of “ one of their smallest pistols, with load;” and the jury so found.
    The position I take is that the “ hiatus ” in this instrument may be supplied by parol-testimony, the proper avermentsfor that purpose being made in the indictment; that it is not necessary to describe the goods called for in the order, provided it be conceived in such terms as to be understood by the parties to whom it is addressed as an order for the delivery of goods; and that therefore-, in this case, it was a question for the jury to decide, whether this instrument was an order for the delivery of the goods and chattels specified in the indictment, and having so found, their finding will not, in the absence of any statement of the evidence, be disturbed by this court. These propositions are distinctly laid down as law, in 2 Russell on Crimes, 526, and conform-to all the authorities having any bearing whatever on the subject.
    In Rex v. Elliot, 1 Leach Rep. 175, where the defendant was indicted for the forgery of an order for the payment of fifty- (the figures £50 being stamped on the margin), the court left it to the jury to say whether the word “fifty” imported “pounds;” and no stress was laid on the marginal figures, except as evidence going to show what was intended by the use of the word “ fifty.” The court intimate that,, even in the absence of figures on the margin, the conviction would have been upheld.
    So, in the case of The State v. Dourden, 2 Devereux Rep. 443, the defendant was indicted for passing a forged bill on the Bank of North Carolina,, for the sum of-- dollars it is said that “ it is true, if the instrument be not apparently within the act, or rather if it be not apparently any legal instrument whatever, there must be such averments as will malee it one, and bring it within the statute,” and Hunter’s case (Leach Rep. 624) is referred to as an instance. There, Hunter was indicted for forging a receipt for twenty-five pounds, as follows: “William Thornton,” “William Hunter.” That was all there was of the forgery; yet it was held that defendant, upon proper averment and proof, might be convicted. In the case of The People v. Stearns, 21 Wend.Rep. 412, the court lay down the law as claimed by us, and in citing cases where extrinsic matter must be set out tc show the character of the instrument forged, say: “ As an instance of the latter, suppose a man has the custody of property which he agrees to deliver on the owner sending him. certain words, under his hand, which have no respect to property, but are a secret sign agreed upon and known only between them, .... the custody of the goods and the agreement on the words must be shown in the indictment.”
    Of the same character as the above cited cases, are the following: State v. Dalton, 2 Murfey Rep. 379; People v. Shall, 9 Cowen Rep. 781; State v. Smith, 8 Yerger Rep. 150; Price v State, 1 Yerger Rep. 432; State v. Greenlee, 4 Dev-
    
      ereux Rep. 543; Rex v. Wilcox, Russ. & Ry. Cr. Cases, 50; Wharton’s American Crim. Law, sec. 1487.
    A. gave B. four pounds with which to buy a certain article; B. afterward exhibited to A. a forged paper, as follows: “Mr. M., bo’t of L. & Son, wholesale druggists, six quarts of settledated sticking acid. Settled, £4. Signed Lane Hughes.” B. was convicted of the forgery of a receipt for the payment of money. Rex v. Martin, R. & M. C. C. Res’d. 483; 7 C. & P. Rep. 549.
    So a conviction was had upon the forgery of the following instrument: “£16 15s 6d. 6th January, 1830. For the High Constable, James Hughes.” Regina v. Boardman, 2 M. & Rob. Rep. 147; 2 Lew. Rep. 187.
    A conviction was had for the forgery of the following writing, us a warrant for the payment of money. “Oct. 11, 1839. This is to satisfy that R. Rodgers has swept the flues, and cleaned the bilges, and repaired four bridges of the Princess Victoria. £4 10s. J. Nicholson.” Regina v. Rodgers, 9 C. & P. Rep. 41.
    In Taylor’s case, 2 East. P. C., c. 19, sec. 47, the prisoner was convicted of the forgery of a receipt for twenty pounds upon a bill of exchange, on a writing containing these words only : “ Received, W. Wilson.”
    In Regina v. Pullbrook, 9 C. & P. Rep. 37, it was held that the following instrument might be shown to be a warrant for the delivery of goods: “Aug. 3, 1839. One 16 in. helmet scoop ; one 4 quart oval kettle. Jas. Hayward.”
    In Regina v. Walters, 1 C. & Mars. Rep. 588, it was held that where Walters took to Bradley a list of names as follows: “1841, Oct. 22.’ Elis Bradley, £0 12s 0d” — and at the foot of. the list cast up the sum total, and set opposite it the name of the prosecutor, it might be shown to be an order for the delivery of butter by Bradley, to the amount set down opposite the name of each person, and the prisoner was convicted.
    These authorities are but a few, out of a vast number, that might be cited in support of the ruling of the court of common pleas. The parties to whom this order was addressed may have been engaged in such business that a request for the • delivery of one of their smallest, with load, would at once convey to their minds what was wanted; such orders may he usual and customary in the course of their dealings. The extrinsic matter averred in the indictment is clearly sufficient to - make this writing an order for the delivery of goods, if extrinsic matter is allowable in any case to help out an insufficiency in form : that it is thus admissable, is clearly settled, not only by the vast weight of authority, hut also by reason of the rule. No authority, English or American, can be found in support of the opposite doctrine. I am unable to see any peculiarity in the wording of our statute which would authorize the disregard of this mass of authority, and consequent reversal of the judgment of the lower court.
   Scott, C.J.

The plaintiff in error was indicted under the 22d section of the crimes act, for forgery, in falsely making, and in uttering and passing as true and genuine, a false and forged order for the delivery of goods and chattels, of the following tenor:

“Dayton, Sept. 14, ’60.

“ Messrs. Langdon & Bro. :

“ Gents — Let the bearer have one of your smallest, with load, and charge to me. R. Chambers.”

In two counts of the indictment this written instrument is alleged to be an order for the delivery of goods and chattels, to wit, for the delivery of a pistol with a load; and in the third count it is styled simply an order for the delivery of goods and chattels.

The plaintiff in error moved to quash this indictment, for the reason that the instrument set out in the indictment, and alleged to have been forged, is not an order for the delivery of goods and chattels. This motion was overruled, and the plaintiff in error having, on trial, beeD found guilty by the verdict of the jury, moved in arrest of judgment, for the-same reason. This motion was also overruled, and the plaintiff in error was sentenced to imprisonment in the penitentiary...

As the evidence offered on the tidal is not disclosed by thg record, the assignments of error present only the question, whether the plaintiff in error, under any state of the proof, -could be properly convicted of forgery, as he stood charged, in falsely making and uttering the instrument set out in the indictment. Is it on its face, or could it by extrinsic evidence be shown to be, an order for a pistol, or for goods and chattels of any kind?

The instrument set out in the indictment is clearly not an order for the delivery of goods generally. If its terms have any meaning, they call for a single thing, “one of your smallest, with load.” The relative size of the article is thus specified, but its genus or species is left undefined by any name or description whatever. There is no apparent reason for calling this writing an order for the delivery of a pistol, rather than for the delivery of a gun, a wagon, a wheelbarrow, a horse, or anything else, which might contain, or carry, a load of any kind.

There are many cases, no doubt, in which extrinsic facts may give a character and meaning to a written instrument, ■which its terms would not otherwise naturally import. But where such facts are necessary to make the writing what it is • charged to be, the indictment should, at least, contain the propei’ inuendoes.

In the case of Rex v. Cullen, Moody’s Crown Cases, 300, the prisoner was indicted for uttering a certain forged request for the delivery of goods, in the following terms:

“Per bearer, 2 V counterpanes.

“T. Davies.

“ 88 Aldgate. “E. Twell.”

Although it waa shown by the proof, that such orders were common in the business of the parties whose names were .signed to the writing, yet it was held by all the judges present, that words “per bearer” did not necessarily import "send per bearer;” they might mean “I have' sent per bearer,” and that there ought to have been an inuendo to ex .plain them.

And in cases where there is no apparent connection between the terms of the instrument, and the character or meaning' sought to be given to it, such extrinsic facts must' be stated in the indictment as will show that the party whom it was intended to deceive might reasonably understand it in the sense attributed to its terms. The people v. Stearns, 21 Wend. R., 409.

But we have been referred by counsel for the state to several authorities which are supposed to justify the conviction in this case. Perhaps the one most analogous to the present case, is that of Rex v. Elliot, 1 Leach’s Crown Law, in which the prisoner was indicted for forging “ a certain promissory note for the payment of money, with intention to defraud the Bank of England.” The note was of the following tenor:

“No. 17.78. — I promise to pay to Mr. Joseph Crooke, or bearer, on demand, the sum of Fifty £, Fifty. London, the 20th day of June, 1775.

For G-ov’r and Company of the Bank of England.

Ent’d, C. Blewert. Tho. Thompson.”

The prisoner was, in this case, found guilty by the jury, •and the judge held the verdict legal.

But, that case, if we admit the decision to have been proper, •differs from the present. There was, on the margin of the note, the word Fifty,, preceded by the ordinary character representing' pounds, the tenor of the note, it was said, imported .a promise to pay some money, by a company, whose peculiar traffic was in cash, and whether for pounds or shillings, would make no difference in the offense. The case is cited in 2 Russell on Crimes, 348, where it is said that “ all the judges agreed, that the “ fifty,” in the margin of it, removed every doubt, and showed that the fifty, in the body of the note, was intended for fifty pounds.”

And so in the ease of The State v. Dourden, 2 Devereaux, 443 — where the prisoner was indicted for passing a forged bill of the State Bank of- North Carolina. The forgery in this case, consisted in altering a genuine one dollar bill, by erasing the figure 1, at the top of the bill, near the left corner, and placing in its stead, the figures 20.

The word “ one,” in its body, was erased, and the word-dollar was altered, by adding the letter s to it, so as to make it read dollars.

It was said by the court, that, in this shape, the body of the bill, without more, could not give it the character of a bank note, for the want of a sum expressed; but this defect was regarded as supplied by the figures in the margin.

In both these cases, the instruments set out in the indictment, had, upon their faces, a clear reference to money; they-were promises to pay; they purported to be issued by institutions whose special business was dealing in money; and the amounts for which they severally called, were clearly shown.-, by what appeared upon the face of each, looking to both body and margin.

But, in the case before us, tfye alleged order contains not the slightest reference to a pistol, either by word, or sign of any kind. The indictment contains no inuendo as to its meaning, nor any statement of extrinsic facts, tending to-show it to be, as charged, “ an order for the delivery of a pistol.” It is not even averred that the parties to whom it was addressed, were dealers in pistols. The character of the-, instrument must, therefore, be determined by its terms alone, which are so utterly indefinite, incomplete, and unmeaning,., as not to bring the case within the operation of'the statute.

Judgment reversed.

Sutliff, Peck, Gholson, and Brinkerhoff, JJ., concurred.  