
    William Evans v. The State of Ohio.
    A forged instrument of writing was in the following terms:
    “Mr. Davis Wen 19th.
    “ pleas let the boy have $6,00 dolers for me.
    “ B. W. EARL.”
    Held — That such instrument is prima facie an “order for the payment of money” within the meaning of the statute.
    This is a writ of error to the Court of Common Pleas of Jefferson county.
    At the October term, 1856, of that court, the plaintiff' in error was indicted for forgery. The first count of the indictment charged him with forging “ a certain order for the payment of money, which said forged order for the payment of money is as follows, to wit:
    “ ‘ Mr. Davis Wen. 19th.
    
      “ ‘ pleas let the boy have $6,00 dolers for me
    "'B. W. EARL.’ ”
    The prisoner was tried at the same term, and convicted under this count.
    Dp on the trial (as appears by a bill of exceptions made part of the record,) the state, after having laid the proper foundation, offered in evidence the instrument alleged to be forged, and which in all respects (save the mere spelling) corresponded with that set out in the first count.
    Counsel for the prisoner objected to the introduction of this paper because there was a variance between it and the paper described in the indictment.
    The objection was overruled, and the paper permitted to go to the jury. The prisoner excepted, and the admission of the paper as evidence is now assigned for error.
    It is not claimed that the instrument set forth varies from that offered in evidence, but the single point now urged is, that the instrument in question is not an “ order” for the payment of money, as named in the first count, but only a “ request.”
    
      P. S. Moodey, for plaintiff in error.
    No argument for plaintiff in error has come to the Reporter’s hands.
    
      G. P. Wolcott, Attorney General, for the state.
    The instrument set forth in the indictment is properly designated an “ order.” Such is not only its general and popular meaning, but the words “order” and “request” are frequently used in the law as exact synonyms. 2 Bl. Comm. 466; Chit, on Bills 1, 2; Kyd on Bills, 3; 3 Kent Comm. 44; Story on Bills 3, 4; Chit. Pl. 144; Saund. Pl. and Ev. 267.
    
      The English courts do not uniformity draw or recognize the nice and illusory distinction of the elder cases between “order” and “request.” Reg. v. Carter, 1 Car. and Kir. (47 E. C. L.) 471; Reg. v. Snelling, 21 Eng. Law and Eq. Rep. 600; Reg. v. Dawson, 1 Eng. Law and Eq. Rep. 590; Reg. v. Illidge, 2 Car. and Kir. (61 E. C. L.) 871; Reg. v. Roake, cited in 2 Russ. on Cr. 522; Reg. v. Vivian, 1 Car. and Kir. (47 E. C. L.) 719.
    In this country, the cases, with one exception, (People v. Thompson, 2 Johns. Cas. 352,) speak an uniform language ignoring or denying the distinction between “ orders ” and “requests.” Com. v. Fisher, 17 Mass. Rep. 46; Peoples. Shaw, 5 Johns. Rep. 263; State v. Cooper, 5 Hay Rep. (Conn.) 250; State v. Nevins, 23 Verm. Rep. 519; Haskins v. State, 11 Geo. Rep. 92-101; State v. Holly, 2 Bay 262, cited in 2 Russ, on Cr. 318, note.
   Scott, J.

If we look simply to the terms of the false instrument set out in the indictment in this case, a decision, either way, of the question presented, might be sustained by a copious reference to authorities.

The leading English cases would decide the question in favor of the plaintiff in error. Perhaps the instincts of humanity had their influence in those decisions; for under their statute, then in force, the question became one of life or death to the prisoner. Under the more humane criminal codes of an advancing civilization, the courts of this country have generally held a different doctrine.

It is by no means surprising, that this conflict of authorities should be found in relation to instruments similar in their terms. The language employed may be such that the legal character of the instrument would depend upon the relations subsisting between the parties and the circumstances of the case. These circumstances may have been such in the present case, as, had the paper been genuine, would have given Earl, the drawer, a right to expect and require the compliance of Bavis with its terms. He may, for instance, have had funds in the hands of Davis, subject to his own order; and, in such case, the instrument in question would naturally be regarded and treated by the parties as an “ order,” and would both in fact and in law he such, notwithstanding the civility and courtesy of the terms m which it is couched. The style alone cannot determine the legal character of the instrument, for a rude request may be more mandatory in its form than a courteous order.

In this case, there was no special finding of the facts by the jury, and the bill of exceptions does not purport to contain a statement of all the evidence, but seems ■ to proceed on the idea that this instrument, from its very terms, could not, under any circumstances, be regarded as a statutory “ order” for the payment of money. We think otherwise. Judgment affirmed.

Bartley, C. J., and Swan, Brinkerhoef and Bowen, JJ., concurred.  