
    Foulkes v. The Commonwealth.
    December, 1843.
    Criminal Law — Forgery—Party Whose Signature Is Forged Need Not Be Produced as Witness. — Upon a trial for forgery of a written instrument, the commonwealth may, without producing as a witness the party by whom the instrument purports to be signed, and without accounting for his absence, prove by the evidence of other witnesses that the instrument is not genuine; such evidence not being in its nature secondary to that of the party whose signature is in question.
    Same — Same—Loss of Forged Instrument — Secondary Evidence — Notice—Case at Bar. — On trial of indictment for forgery of a letter of credit with intent to defraud W. & W., the commonwealth proves that a draft, presented by the prisoner to W. 837 & W. at the same time with *the letter of credit, had been filed, together with an indictment against the prisoner for forging the same, with the clerk of the court, who, on making search for the draft among the papers in his office, has been unable to find it; and thereupon the commonwealth offers secondary evidence of the contents of the draft; no notice having been given to the prisoner, before the jury was impaneled, of any intention to offer such evidence. Held, the foundation so laid for the admission of the secondary evidence is sufficient.
    Same — Same—Of What Writing Forgery Cannot Be Committed. — Indictment for forging, with intent to defraud W. & W., a letter in the following terms; “Nottoway, April 24, 1841. Gent., Agreeable to mr. Wm. I. watkins’ request, I take pleasure in making you acquainted with his name, and would say to you that he is very extensively engaged in the manufacturing of tobacco, and has made some large purchases, and says that he wishes to patronize you (on my recommendation). You may be assured that whatever he engages to do he will certainly perform. He says it is probable he will want 1000 dollars by the 1st of May, to meet his engagements, and if he apply for the amount, I Rave no doubt Rut you will accommodate him. The roads are in such a condition that it is impossible to get any produce to market, write me a few lines by mr. Watkins, and say what the chance is for a rise in tobacco. Your compliance with the above will very much oblige your ob’t servant, Joseph M. Foulkes. — P. S. Mr. Watkins prefers giving a negotiable note payable in Petersburg Exchange bank, where he can always have an opportunity to send at the shortest notice and draw. He is not a gentleman of a low mean degree, but one that is a perfect gentleman in every sense of the term. I am confident, as I have observed to him, that you will either let him have the money, or endorse for him. J. Bf. F.” HTibb, this is not a writing in respect whereof forgery can be committed, either at common law or under the statu te.
    William S. Foulkes was indicted in the circuit superior court for the county of Henrico and city of Richmond, at October term 1841, for forging', with intent to defraud Winfree & Williamson, “a certain letter of credit and writing, ” in the following terms:
    “Nottoway, April 24, 1841.
    “Gent.
    “Agreeable to mr. Wm. I. Waikins’ request, I take pleasure in making you 838 acquainted with his name, *and would say to you that he is very extensively engaged in the manufacturing of tobacco, and has made some large purchases, and says that he wishes to patronize you (on my recommendation). You may be assured that whatever he engages to do he will certainly perform. He says it is probable that he will want about one thousand dollars by the first of May, to meet his engagements, and if he apply for the amount, I have no doubt but you will accommodate him. The roads are in such a condition that it is impossible to get any produce to market. Write me a few lines by mr. Watkins, and say what the chance is for a rise in tobacco. Your compliance with the above will very much oblige your ob’t servant,
    Joseph M. Foulkes.
    “P. S. Mr. Watkins prefers giving a negotiable note payable in Petersburg Exchange bank, where he can always have an ■opportunity to send at the shortest notice and draw. He is not a gentleman (of In-graham’s standing or character) of a low mean degree, but one, I am happy to inform you, that is a perfect gentleman in every sense of the term. I am confident, as I have observed to him, that you will either let him have the money, or endorse for him.
    J. M. F.”
    The indictment contained another count, which charged that the prisoner, with intent to defraud the said Winfree & William*son, did knowingly utter and publish as true, and use and employ as true, for his own benefit, a certain forged letter of credit and writing, (set forth in the same terms as in the first count).
    At the trial, the prisoner excepted to sundry opinions of the court given against him, and tendered bills of exceptions, which were received and made part of the record.
    1. The first bill” of exceptions stated, that on the trial, the attorney for the 839 commonwealth, without shewing *or attempting to shew that Joseph M. Foulkes, whose name is subscribed to the letter set out in the indictment and alleged to be forged, was dead, or sick, or without the limits of the commonwealth, so that his testimony could not be had on the trial, and without shewing that any subpoena had been taken out for the said Joseph M. Foulkes, offered to prove by a witness that the said letter, and the signature to the same, were not in the handwriting of the said Joseph M. Foulkes; whereupon the prisoner by his counsel moved the court to exclude such evidence from the jury, because the said Joseph M. Foulkes was by law a competent and the best witness to prove whether the said letter or signature were genuine or not, and could better know than any other person whether the same were written or signed by him: which motion the court overruled, and decided that the said evidence should go to the jury; and to that opinion the prisoner excepted.
    2. The second bill of exceptions stated, that upon the trial, the commonwealth offered evidence for the ourpose of proving that in consequence, and at the time, of the presentation by the prisoner to Winfree & Williamson of the letter of credit set out in the indictment, the said Winfree & Williamson gave to him a paper signed by them, and then proved that the said paper was placed in the hands of the attorney for the commonwealth in this court, with the record of the examining court called to try the prisoner for having forged the name of one William I. Watkins to the said paper, for the purpose of framing an indictment upon it; and proved by the said attorney, tliat he did frame an indictment against the prisoner upon it, and filed it in the indictment with the clerk of this court; and also proved by the clerk, that he had examined the papers in his office, and could not find that paper, and that he had no recollection that it ever was in his office: and then the commonwealth offered evi-840 dence for the purpose *of proving that the said paper writing was a draft drawn by the prisoner, in the name of William I. Watkins, on Winfree & Williamson, for 1000 dollars payable to said Watkins at 90 days after date, and accepted by the said Winfree & Williamson: whereupon the prisoner moved the court to exclude all evidence of the contents and character of the said paper writing, unless it were produced; upon the ground that the said paper writing was not shewn to be lost, and it was by the laches of the commonwealth that it was not produced, and no notice had been given to the prisoner, before the jury was impaneled, of any intention to offer such secondary evidence of the said paper writing: but the court overruled the motion of the prisoner, and admitted the evidence aforesaid; to which opinion the prisoner excepted.
    3. The third and last bill of exceptions stated, that the counsel for the prisoner, in the course of his argument before the jury, contended, that before the jury could convict the prisoner, they must be satisfied that he forged, or uttered as true knowing it to be forged, with intent to defraud Win-free & Williamson, a letter of credit, and then proceeded to shew that the paper writing described in the indictment and offered in evidence to the jury was not a letter of credit; whereupon, after the prisoner’s counsel had closed his argument, the attorney for the commonwealth asked the court to instruct the jury, that it was not necessary to the conviction of the prisoner that the jury should be satisfied he forged, or uttered as true knowing it to be forged, a letter of credit with intent to defraud Win-free & Williamson, but they might convict him if the evidence satisfied them that he forged, or uttered as true knowing it to be forged, with intent to defraud Winfree & Williamson, the paper writing described in the indictment and offered in evidence, although they should, believe that the said paper writing was not a letter 841 *of credit: which instruction the counsel for the prisoner resisted, but the court gave it, and the prisoner thereupon excepted.
    The jury found the prisoner guilty upon the second count of the indictment, and ascertained the term of his imprisonment in the penitentiary to be two years; and the court pronounced judgment accordingly-
    On the petition of the prisoner, the general court, at the last term, awarded a writ of error to the judgment.
    The cause was now argued by Lyons and Scott for the plaintiff in error, and Brooke for the commonwealth.
    
      
      Forgery. — See monographic note on “Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865.
    
    
      
      Same — Loss of Forged Instrument — Secondary Evidence — Notice.—In State v. Lowry, 42 W. Va. 210, 24 S. E. Rep. 662, it is said: “There is no evidence to show that such check is not in the custody of the clerk of the court, or in the clerk’s office, or that any search therefor had been made in such office. The witnesses for the state purge themselves of the possession of the check, but that does not substantiate its loss, unless diligent search has been made for it where it might be legally deposited, or unless it is traced to the possession of the prisoner or his counsel, as Mr. Howard intimates in his statement; and then notice to produce it should be given, before attempting to prove its contents. Foulkes v. Com., 2 Rob. (7a.) 836; 2 Bish. Cr. Proc. § 433, citing State v. Cole, 19 Wis. 142.”
    
   DUNCAN, J.

The court are unanimous in the opinion that there is no error in the judgment of- the circuit court set forth in the first bill of exceptions; being satisfied, as well upon principle as authority, that it was not obligatory upon the prosecutor to examine Joseph M. Foulkes, whose name was subscribed to the paper alleged to be forged, as a witness to prove that said paper and the signature thereto were not in his handwriting, but that it was competent to prove the same facts by other witnesses, and that the testimony of such other witnesses would not be secondary in its nature, but of equal degree with the testimony of the said Joseph M. Foulkes, the only difference being as to it persuasive effect before the jury, which was a matter solely addressed to the discretion of the prosecutor.

The courts are also unanimously of opinion, upon the second bill of- exceptions, that a legal foundation was laid for the introduction of the secondary proof therein set forth, and that there is no error in the | judgment of the circuit court to which that bill of exceptions relates.

But a majority of the court (judges Brown and Fry dissenting) consider that there is error in the judgment *of the circuit court set forth in the third bill of exceptions; being of opinion that the writing set out in the indictment is one of which forgery could not be committed, either at common law or under the statute.

Judgment of circuit court reversed, and judgment of acquittal entered.  