
    FORGERY OF THE INDORSEMENT OF A CHECK.
    [Circuit Court of Richland County.]
    James Cosner v. State of Ohio.
    
    Decided, January Term, 1903.
    
      Criminal Law — Forgery—Indorsement of Check, the Subject of— Indictment — Failure of .Proof.
    
    1. An indorsement of a check is the subject of forgery under Section 7091, Revised Statutes of Ohio.
    2. An indictment charging the unlawful uttering and publishing as true and genuine a false, forged and counterfeit check, is not supported by proof of the forgery of an indorsement of the payee’s name thereon. The instrument having been issued by the drawer as his genuine act, forging an indorsement thereon of the payee’s name is a distinct and new contract, and the subject of forgery under the statute, Section 7091.
    3. To convict a party of forging an indorsement on a cheek otherwise genuine, the indictment must charge the particular act- complained of, namely, of forging an indorsement of the instrument; and where the indictment charges only an unlawful uttering and publishing of the instrument, there is a failure of proof where only a false and forged indorsement is shown.
    W. F. Yoegele, Jr.,
    representing the plaintiff in error, argued to tbe court that:
    The indictment was not specific, in charging tbe crime committed. Lamberton v. The State, 11 O., 282; Greenland v. The State, 6 Dec., 313; State v. Philbrick, 31 Me., 401; United States v. Hess, 124 U. S., 483; Am. & Eng. Ency. of Law, Vol. 19, p. 556.
    Sueb error is fatal since the enactment of tbe statute, as well as at common law. Ellars v. The State, 25 O. S., 385.
    To maintain the indictment charging the unlawful uttering and publishing of a false, forged and counterfeit check, the proof must show: that the instrument is a check for the payment of money as stated (which the proof did show); that the accused knew the same to be false, forged and counterfeited (which the proof failed to show); the uttering and publishing at the time and place by the accused to the person stated in the indictment, as true and genuine; and that the cheek was really forged. But there was not only no proof that the check was false, forged or counterfeited, it even appeared that it was genuine and had not' been altered in the slightest respect. This left' the essential element of the crime unsupported by evidence. Hauley on Criminal Law, p. 225.
    The court erred in permitting testimony to be introduced to the effect that the defendant forged the endorsement on the back of the check, ’ because if the check was genuine he could have no knowledge that it was a forgery, and because he was not charged with “uttering and publishing a forged endorsement.” Greenleaf on Evidence, Vol. 1, See. 52; Knight v. The State, 54 O. S., 379.
    In the definition of a check by the best authorities the endorsement of a check is nowhere described as a part of the check. But the check was.-a complete .instrument without the endorsement: Poage v. The State, 3 O. S., 230. Under this decision, if the defendant had been indicted for forgery of the endorsement, the indictment' would have been sustained on demurrer thereto.
    As between the endorser and the endorsee, every endorsement is a new bill: Ballingalls v. Gloster, 3 East, 481; Heylin v. Adamson, 2 Burr, 674; Slocum v. Pamroy, 6 Cranch, 211; Story’s Conflict of Laws, 261; Case v. Heffner, 10 O., 180; Montgomery v. The State, 10 O., 220; 19 Ark., 354; 81 Fed. Rep., 851; Miller v. The State of New York, 52 N. Y., 304; Commonwealth v. Ward, 2 Mass., 397; 1 Mass., 62; Hess v. The State, 5 O., 5, 9, 14; 2 Mass., 379; Burdge v. The State, 53 O. S., 512; Martin v. Cole, 104 U. S., 37.
    Who would be compelled to pay this cheek? Cincinnati Nat’l Bank v. Creasy, 18 Bull., 410; Dodge v. Nat’l Exchange Bank, 30 O. S., 1. And as to other points: Rex v. Hornwell, Moody’s Crown Cases, 405; Barber v. The State, 39 O. S., 660; Stoughton v. The State, 2 O. S., 566.
    W. H. Bowers, Prosecuting Attorney of Richland Count}'',
    argued on behalf of the State that inasmuch as the accused forged t'he endorsement on the check, and then uttered and published it, he certainly could not have been misled by the indictment, and was guilty of uttering and publishing a forged instrument, knowing the same to have been forged, within the meaning of Section 7091.
    It was further argued that the evidence that the accused wrote the name of the payee across the back of the cheek was competent to show guilty knowledge on his part, if for no other reason. 2 O. S., 563.
    The making of the endorsement upon the back of the check by the accused, without the knowledge of the payee, was an alteration of the entire instrument, 'and clearly within Section 7091, R. S., in which the word “alter” is used as well as “forge.” 2 O. S.,. 566. “An endorsement -of a promissory note is the subject .of forgery under the crimes act.” Swan’s.Statutes (new ed.), 272; 3 O. S., 230. It can not be contended that Section 7091 is less comprehensive.
    On the subject of variance, Mr. Bowers cited: 7216, R. S.; 7218, R. S.; 7215, R. S.; 38 O. S., 581; 53 O. S., 514; 48 O. S., 460; 49 O. S., 301.
    An affirmation of the common pleas court in finding the accused guilty was asked under the provisions of Section 7306a; State v. Bohn, 55 O. S., 555; State v. Hervey, 59 O. S., 218.
    Voorhees, J.; Douglass, J., and Donahue, J., concur.
    Error to the Court of Common Pleas, Richland County.
    
      
       This case was affirmed by the Supreme Court without report, May 12, 1903. 1 O. L. R., p. 33.
    
   Plaintiff in error was indicted, tried and convicted under Section 7091, Revised Statutes, for uttering and publishing as true and genuine a certain false, forged and counterfeit cheek. The indictment in a single count, charges the crime substantially as follows:

“That he did unlawfully utter and- publish as true and genuine a certain false, forged and counterfeit cheek of the purport and value following, to-wit:
“ ‘No. 34. Eredericktown, Ohio, February 26th, 1902.
“ ‘The First National Bank,
“ ‘Pay to Chas. Wolf or order $12.42, Twelve and 42-100 Dollars. W. H. Boose.’”

The indictment further alleged that':

“Said check is indorsed as follows: Chas. Wolf, C. L. Culver, M. E. Fisher; with intent thereby unlawfully to defraud, he, the Eaid James C-osner, then and there at the timé he so uttered and published said false, forged and counterfeited check, well knowing the same to be false, forged and counterfeited.”

•To this indictment the plaintiff in error entered a plea of “not' guilty,” was tried and convicted and sentenced to the penitentiary for a term of seven years. Error is prosecuted to this court.

It is contended:

1. That the court below erred in overruling the defendant’s motion at the close of the state’s evidence, to direct the jury to return a verdict of not guilty.

2. That the verdict of the jury is not supported by the evidence.

3. That there is no evidence to support the charge laid in the indictment.

4. That there is no evidence to support the verdict and judg:nent, and they are contrary to law.

The errors assigned require the consideration of the case as presented in the record by the bill of exceptions, and the inquiry will embrace several propositions.

The material and essential allegations which were necessary for the state to prove, under this indictment, wherein the defendant is charged with unlawfully uttering and publishing a false, forged and counterfeited check, briefly stated, are:

First. That the instrument alleged to have been forged is a check for the payment of money.

Second. The uttering and publishing of the check, as true and genuine, at the time and place alleged, by the accused.

Third. That the check was in fact forged or counterfeited.-

Fourth. That the accused knew the same to be false,- forged or counterfeited.

If these facts were established on the trial by that degree of proof required in criminal cases, and no errors appear, the judgment of the court below should be affirmed.

The charge laid in the indictment is in the language of the statute, and is a charge of forgery, or signing and passing a check as genuine which was false and counterfeited.

The indictment is sufficient to charge a crime where the instrument was forged, that is, if the name of the drawer was forged, or unauthorized by him. But in this case the evidence shows, and it is conceded by the state, that this check was signed by the drawer,, Booze, and was intended by him to be made and delivered as a genuine instrument for the payment of the amount named therein to the order of Charles Wolfe, the payee. It was a completed instrument, so far as its issue was concerned, when mailed by Booze-to Charles Wolfe at Mt. Vernon, Ohio. • Just how the check got into the possession of the plaintiff in error, the record does not show. It is conceded; however, that it was not indorsed by Wolfe, the payee; 'and that the defendant was not the rightful owner thereof.

The proof shows that the forgery committed, if any was committed,- was in signing the payee’s name on the back of the check.

When a party signs a note, check, or other instrument for the payment of money, and the payee named therein indorses it, he makes' a new contract, and the law fixes its terms by implication.

The charge in this case is, that the instrument was uttered and published-as true and genuine. It was signed by Booze, the drawer; he intended to issue or make it just as it appears, without the indorsement. The defendant got possession of it in some manner, and indorsed Wolfe’s name,' the payee, on the back, and this indorsement of Wolfe’s name is a forgery. A forgery of what? Not a- forgery of the check, or instrument as originally made, but of the new contract arising from the indorsement.

The authorities, without doubt, sustain this principle, that forging an indorsement upon a note or check is covered by the statute, Section 7091, and is of the same character or grade of crime as the forging of the pretended maker’s name to the instrument when issued. Where the instrument is genuine, and only the payee’s name therein is forged, is it sufficient to convict, under the indictment charging the uttering and publishing the instrument as 'a forgery, to prove that the indorsement is a forgery? This is the vital question in this ease.

In this case there was no proof to show that this cheek was falsely uttered — the indorsement was the only forgery committed.

If an indorsement of a cheek or note by forging the payee’s name thereon is the subject of forgery under Section 7091, Eev. Stat., how is it to be proved? Is it proved by showing that the check was genuine, and was intended'to be drawn by the maker, and was a completed instrument, and after so drawn it gets into the possession, of a party, other than the payee, and he forges the payee’s name 'and receives value therefor? We think not, and therefore hold there is a failure of proof to sustain the charge laid in the indictment.

Without taking too much time to cite authorities in support of our conclusion, a few principles of criminal pleading may be referred to with propriety, and 'among them is the rule, that all the elements necessary to constitute the crime must be averred: in other words, the case must be clearly brought within the statute.

An indictment should set forth facts constituting the offense, so that the accused may have notice of what he is to meq,t, and the court, applying the law to the facts, may see that a crime has been committed. Redmond v. State, 35 O. St., 81, 82.

While it is the safer course to charge the offense in an indictment in the language of the statute, yet, it is not to be inferred that an indictment which simply pursues the language of the statute is sufficient, for in many cases something more is necessary. Hager v. State, 35 O. St., 268, 269.

In Lamberton v. State, 11 Ohio, 282, the court held that an indictment which merely used the words of the statute in that particular instance is too uncertain, because of the generality of its terms. The court thought that the particular act complained of, and which was included in the general words of description in the statute, should be set forth; and, in illustration of their views said: “It (the indictment) is as general as would be an indictment for forgery, which followed merely the words of the statute, without specifying any act constituting the crime, or an indictment for perjury, which only set forth that a party swore falsely, knowing to the contrary, without setting forth what matters he stated to be facts, and falsifying them.”

An indorsement of a promissory note is the subject of forgery under ■ the crimes act, Section’ 7091, Revised. Statutes. Poage v. The State of Ohio, 3 O. St., 229.

Where there has been a genuine check or promissory note made, and that cheek or note 'after being regularly issued is changed by a forged indorsement, such forged indorsement is not charged in an indictment which simply alleges the unlawful uttering and publishing of the instrument as a forged instrument.

A party has 'a right to know the nature'of the charge'which he is expected to meet. If he is charged with the forgery of the check in its original inception, he is entitled to know that; if he is to be charged on the trial under such an indictment' with having forged an indorsement thereon, he has a right to be so informed.

It is not sufficient where a check has been properly and intentionally published by the maker as genuine, to prove a mere forgery of an indorsement of such check under an indictment eharging a party with forgery of such check.

We think that by analogy this case comes within the rule or principle of law announced in the case of Barber v. The State, 39 O. St., 660.

In that case it was held that the offense of cutting with intent to kill, and that cutting with intent to wound are offenses of the same degree, under the provisions of Section 6820, Revised Statutes; making it am offense for any- one tu-cut another, ¡person with intent to kill, wound or maim. The indictment charged a cutting with intent to kill; the verdict of the jury was, “guilty of cutting with intent to wound.” The court held that the indictment was not supported by the verdict, for the reason that the offense of cutting with intent to wound is not an offense inferior in degree to that of cutting with intent to kill. By a parity of reasoning it follows, that the unlawful forging and counterfeiting an indorsement on a genuine check, is not an offense inferior "to that of unlawfully uttering and publishing as genuine a like instrument; and an indictment charging the uttering and publishing of such instrument' would not be supported by evidence of a forged indorsement thereof. There would be in such case a material variance between the proof and the allegations.

The crime proved is a different crime from the one charged in the indictment. It is of the same degree within the same statute and subject t'o the same punishment. The defendant has a right to be informed that that is the charge brought against him — it is the purpose of criminal pleading that he may be thus informed— and where the rule is violated, such pleading would not be justified. There is no testimony in this ease to sustain the indictment of uttering and publishing a forged cheek.

W. F. Voegele, Jr., for plaintiff in error.

W. S, Bowers, Prosecuting Attorney, for State.

The court erred in overruling defendant’s motion to direct the jury to return a verdict of “not guilty” under this indictment, there being no evidence that the check was a forgery. On the contrary the evidence produced by the state showed the check was genuine, the only forgery being in the indorsement..

The court charged the jury that:

“The defendant is charged with knowingly uttering a forged instrument, that' is, when he uttered it, he knew it was forged. Remember, you are not trying him for the crime of forgery, and the fact.that there .has been testimony tending to show that he, himself, committed the forgery, you can only use for the purpose of ascertaining that he knew the instrument was forged when he passed it. If he came in possession of this check, payable as set forth by copy here, in his hands it was not an instrument for the receipt of money. It required to be completed by the indorsement of Wolfe in his hands, and if, for the purpose of passing this check, and rendering it an instrument upon which he could draw the money wrongfully, he indorsed the name, and then afterwards passed it, he would be guilty of uttering a forged instrument. And it must be uttered for the purpose of defrauding. He must have had a purpose of defrauding some person when he uttered it.”

There being no evidence of.the forging of the check in its inception, but only of the indorsement', and the indictment not charging, the forgery of an indorsement, there was nothing to call for the instruction given by the court, and it was misleading and prejudicial to the defendant.

The verdict of the jury is not sustained by the evidence, as under the indictment on which defendant was tried there was no evir dence even tending to show the check had been forged. The indorsement of the payee’s name was the only forgery shown, and with this crime the defendant was not charged in the indictment. For these errors the judgment is reversed with costs, and remanded for further proceedings.  