
    Lewis Benton Drake v. The State of Ohio.
    1. An indictment, charging a party with the forgery of a transfer of a bill of exchange, which had not been indorsed by the payee, by falsely indorsing thereon the name of a stranger to the bill, is bad. Such indorsement, if genuine, could not operate as a transfer of the bill.
    2. An intent to prejudice, damage, or defraud is an essential ingredient in the crime of forgery; and au indictment for that crime must, therefore, charge such intent directly and specifically; and a mere statement of such intent, in the conclusion of the indictment, by way of legal deduction or inference from the facts previously found, is insufficient. Fonts v. The State, 8 Ohio St. 98, followed.
    Error to the court of common pleas of Belmont county.
    The plaintiff in error was indicted in the court below for forgery. The indictment contains six counts. The forgery charged in the first four counts is that of unlawfully, feloniously, fraudulently, and purposely making a false transfer of property, to wit: of a certain bill of exchange drawn by the First National Bank of Milwaukie, on the Central National Bank of New York, for the sum of twelve hundred and fifty dollars, payable to the order of Blake Brothers (which is fully described in the indictment), by falsely indorsing thereon the words “ Drake & Brothers,” and delivering the same to the First National Bank of St. Clairsville, and receiving therefor from said bank the sum of twelve hundred and fifty dollars, upon the false representation that he, the said Lewis Benton Drake, was a member of a firm doing business under the firm name of Drake & Brothers, and that the bill of exchange was the property of the firm, whereas the bill of exchange was in fact the sole property of a firm doing business under the firm name of Blake Brothers, and who were the payees named therein.
    In the fifth and sixth counts of the indictment, the plaintiff in error is charged with making a false and forged indorsement of the words “ Drake & Brothers ” upon the back of the bill of exchange, and uttering, publishing, and passing off as true and genuine, to the First National Bank of St. Clairsville, the bill of exchange so falsely indorsed he, the said Drake, well knowing the indorsement to be false and forged.
    In some of the counts the false transfer and indorsement and the uttering and publishing are found to have been made and done with intent to damage and defraud Blake Brothers; and in the other counts with intent to damage and defraud the First National Bank of St. Clairsville. But this finding as to the intent is in every instance stated only in the concluding part of the several counts after the words “ mid so the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do find,” etc.
    Upon the ti’ial of the case, the jury returned a general verdict, finding the defendant “ guilty as charged in the indictment ; ” and his motions for a new trial, and in arrest of judgment, having been severally overruled, he was sentenced to imprisonment in the penitentiary.
    The motion in arrest of judgment was based mainly upon the alleged insufficiency of the indictment.
    A bill of exceptions was- taken in the case, 'from which it appears that, upon the trial, evidence was given tending to show that, about the 14th day of October, 1868, the defendant, L. Benton Drake, presented the bill of exchange described in the indictment, to the First National Bank of St. Clairsville, and represented to its cashier and teller that the bill was drawn in favor of, and was the property of Drake & Brothers, and that the defendant then indorsed the bill, by writing on the back thereof “ Drake & Brothers by direction of the teller, who thereupon paid to the defendant twelve hundred and fifty dollars for the bill. That the bill of exchange had been directed by the Eirst National Bank of Milwaukie, to “Drake & Brothers” of Pittsburg, and mailed to that address. That the Eirst National Bank of St, Clairsville, upon obtaining the bill as aforesaid, sent it to their New York correspondent, by whom it was returned on account of its improper indorsement; and that Blake Brothers, the payees of the bill, subsequently obtained a duplicate of it, upon which they received in full the twelve hundred and fifty dollars which it called for. That the defendant’s name was L. Benton Drake; that he was introduced to the bank officers at St. Clairsville as Mr. Drake, and represented his name to be Drake; and that the bill was the property of Drake & Brothers, for which he had paid consideration to one George H. Englor.
    The court thereupon charged the jury as follows: “ If the jury find from the testimony, and are satisfied beyond a reasonable doubt, that upon the presentation of the bill of exchange to the bank officers, he (the defendant) falsely and knowingly induced the officers to believe that he was indorsing the firm name which purported to be in the body of the instrument, in that case the defendant is guilty as charged in the indictment.” To this charge the defendant at the time excepted.
    The errors assigned as grounds for the reversal of this judgment relate mainly to this charge of_ the court, and to the overruling of the motion in arrest of judgment.
    
      George H. TJmstead and Evans <& Beard for plaintiff in error:
    1. Under our statute the crime of forgery cannot be committed by indorsing a bill of exchange, nor in uttering or publishing a bill of exchange which is genuine in all respects except the indorsement. The crime of forgery consists in falsely mal&i/ng, altering, etc., the bill, or in uttering or publishing as true and genuine a bill which has been so falsely made, altered, etc., with intent, etc. The record shows that Drake did not make the bill, and did not alter the bill within the meaning of the statute. The making and altering a bill, contemplated by the statute, was intended to apply to tbe face of the bill alone, except as to the acceptance. S. & S. 264, sec. 8.
    2. The indictment charges as forgery that which, if in all respects true, cannot amount to forgery under our statute.
    The mei’e speaking of words, whatever effect it may have on the mind of another, is not forgery, nor is it an ingredient of forgery. It might amount to something in the way of evidence on the trial, in a proper case, to arrive at a defendant’s intention or knowledge, but nothing more. If the teller of the St. Clairsville Bank was induced, from what Drake said, to believe that he was indorsing the bill or had indorsed it “ Blake Brothers ” instead of “ Drake & Brothers,” it certainly could not affect the matter at all, and would not weigh a feather in making out the crime charged.
    The indorsement made by Drake on the bill did not transfer any interest in the bill, and could not have transferred any, if the indorsement of “ Drake & Brothers ” had been genuine. There was ho connection between the parties to the bill and the indorsers, and did not purport to be any, and therefore nobody should have been deceived by it. A bill or note payable to order is transferable only by the indorsement of the name of the payee of the bill or note. Chitty on Bills, 128; Story on Bills, 222, 201; Byles on Bills, 57, 213. See also Barnum v. The State, 15 Ohio, 717, 721; 8 Ohio St. 455, 457; Blackstone, Book 4, 248, note 60; The People v. Shall, 9 Cowen, 778.
    
      F. B. Pond, attorney-general, for the State:
    Does the indictment charge a forgery ?
    It is well settled in Ohio that an “indorsement ” of a bill of exchange is, under our statute, a subject of forgery. See Poage v. The State, 3 Ohio St. 229. Such an “indorsement” is a contract for the payment of money. Ib. 234.
    So the words in the 22d section of the crimes act, “ any transfer or assurance of money, stocks, goods, chattels, or other property whatever,” is comprehensive enough to include it.
    
      It is charged in the indictment, substantially, that the prisoner indorsed upon the bill a fictitious or false name, viz., “ Drake & Brothers,” for the purpose of defrauding the St. Clairsville Bank. This seems to me to charge forgery. See Peacock's case, Russ. & Ryan, B. C. C. 282; 1 Bishop's Crim. Law, sec. 423 and notes; Wharton's Crim. Law, sec. 1428.
    The words “Drake & Brothers ” indorsed on the bill, and the words “ Blake Brothers ” in the bill are almost identical, and the indictment charges that the accused falsely represented to the teller of the bank that “ Drake & Brothers ” were the owners of and payees of the bill; clearly intending to convey the impression that there had been a clerical error in writing the payee’s name in the bill, and' that “Blake Brothers” meant and were “Drake & Brothers.” See Wharton’s Crim. Law, sec. 1430; Regina v. Blenkinsop, 2 Car. & Kir. 413, in which the use made of a genuine signature constituted a forgery; Regina v. Rogers, 8 Car. & P. 629; Rex. v. Whiley, 1 Russ. & Ryan, B. C. C. 90; Rex v. Francis, ib. 209; People v. Peacock, 6 Cowen, 72, a case of forgery in signing one’s own name.
    The accused, in the present case, put the indorsement upon the bill, either intending to make the bank believe that “ Blake Brothers ” were Drake & Brothers,” and thus obtain the money, or put the indorsement there as a third party to the bill, intending that the bank should believe that it could hold “ Drake & Brothers ” (a false person invented at the time for the purpose of the fraud) as guarantors or makers. In either case he indorsed the name of a person or firm (which is the same thing, I take it) that never existed, and was by him used for the first time for the purpose of the fraud.
    If the name of the “ third party ” or stranger to the bill had been genuine, “ Drake & Brothers” could have been held for the money upon that indorsement. The name being a false one appears to me to have been a forgery.
    It is claimed that there is no forgery here, because, if genuine, the indorsement would not have transferred the title t« the bill. I apprehend that the name of an accommodation indorser falsely put upon such a bill would be, under the case cited from 3 Ohio St., as much a forgery as falsely putting such name to the bill as drawer.
    If the indictment sufficiently charges the crime of forgery, the charge of the court was right.
   Scott, J.

The indictment in this case is under the twenty-second section of the crimes act, as amended by the act of March 24, 1865 (O. L., vol. 62, pages 60, 61). This section defines and provides for the punishment of forgery, and the uttering and publishing of false or forged instruments therein specified.

The first four counts charge the defendant below with falsely making a forged transfer of property, to wit, of a bill of exchange, by falsely indorsing thereon the name of “ Drake & Brothers.”

The bill in question is set out in each count of the indictment, and purports to be payable to the order of “ JBlaJce Brothers,” and had not been indorsed by the payees. “ Drake & Brothers ” were strangers to the bill, and the indorsement of their names thereon, if genuine, could not have operated as a transfer of it. No indorsement save that of the names of the payees could have the effect of transferring the title to the bill, and the indorsement alleged to have been falsely made purported to be of quite a different character. The oral representation of the defendant, that he was indorsing the name of the payees (which the face of the bill clearly showed to be false), cannot constitute the crime of forgery. Nor can the character or effect of the indorsement actually made by the defendant be at all affected by the mistaken belief of the bank officers that he was making an indorsement of a wholly different kind. We think these four counts of the indictment are clearly insufficient, and that there was error, to the prejudice of the defendant below, in the charge of the court on this subject.

But there is another defect which, we conceive, is fatal to all the counts of this indictment. To constitute the crime of forgery, or of uttering or publishing as true and genuine, etc., as defined by the statute, the criminal act must be done “ with intent to prejudice, damage, or defraud some person or persons, body corporate or politic, or a military body organized under the laws of this State.” This intent is an essential ingredient of the crime, and must therefore be stated, and charged in the body of the indictment, in a direct and positive manner. In none of the counts of the indictment in this case is the criminal intent averred as a direct finding of the grand jury from the evidence before them, but only by way of legal inference, deduced from the facts previously found. The intent is only stated in the concluding part of the indictment, and is preceded in every instance by the words u And so, the grand jurors aforesaid, upon their oaths aforesaid, do find,” etc. That this mode of stating a material ingredient of an offence, not by direct averment, but as a conclusión from the facts directly found, is insufficient, was held by this court, upon full consideration, in the case of Fauts v. The State, 8 Ohio St. 98. And that holding has been uniformly followed in many eases since brought befort us, in which the same question arose. The court, therefore, erred in overruling the motion in arrest of judgment.

Judgment reversed and cause rema/nded.

Brinkerhoff, C.J., and Welch, White, and Day, JJ., concurred.  