
    Case 29 — Indictment for Uttering a Forged Instrument —
    March 6.
    Colson v. Commonwealth.
    APPEAL PROM KNOX CIRCUIT COURT.
    John Colson was Convicted oe Uttering and Publishing a Forged Instrument and he Appeals.
    Reversed.
    Forgery — Character op Writing Forged.
    Held: Neither under the common law, nor under Kentucky Statutes, section 1188, providing for the punishment of any person who shall forge “any writing whatever, whereby fraudulently to obtain the possession of or deprive another of any money or property, or cause him to be injured in his estate or lawful rights,” • or who “shall utter and -publish such instrument knowing it to be forged,” can a man be punished for publishing a writing to which the name of a woman has been forged, purporting to be an invitation to him to come to her hbuse at night for a private conversation.
    JUDGE GUFFY, dissenting.
    B. B. GOLDEN, Attorney por appellant.
    The writing which the appellant is charged with uttering and publishing is as follows: “Barboursville, Ky., July 27, 1900.— Mr. John Colson — Sir: I want you to come heare sometime when they is nobody hear, I have got something to tell you. It is about what you saw at mother’s, an’ don’t fail to come. You can come some nite when they hant nobody hear.
    
    ELLEN GOODIN.”
    This indictment is drawn under section 1188, Kentucky Statutes, and under this indictment the appellant wras convicted and sentenced to the penitentiary for six years.
    The indictment is bad on demurrer, but our contention is that this writing can not be the subject of forgery, and it contains no language injurious or prejudicial to any rights of Mrs. Goodin.
    AUTHORITIES CITED.
    Ky. Statutes, sec. 1188; Chitty’s Blackstone, vol. 3, p. 201; Chitty’s Crim. Law, vol. 3, star page 1022, 1039a, 1038, 1052; Roberson’s Crim. Law and Procedure, vol. 1, secs. 383, 392, 394, 397; Greenleaf on Evidence, vol. 3, sec. 103, note citing Commonwealth v. Costello, 120 Mass., 358, and sec. 110; Underhill on Crim. Evidence, see. 340; Jackson v. Weisiger, 2 B. M., 214; Com. v. Williams, 13 Bush., 267.
    ROBT. J. BRECKINRIDGE, Attorney General for Commonwealth.
    Having examined this record, the cases cited by the attorney for the -appellant, and other authorities on the subject of forgery -and uttering a forged instrument, I am persuaded that the appellant is not technically guilty as charged in the indictment, therefore, respectfully decline to ask the affirmance of this case. ,
   Opinion op the court by

JUDGE WHITE

Reversing.

Appellant was indicted, tried, and convicted of the crime of uttering and publishing a forged instrument. His punishment was fixed at six years in the penitentiary, and he appeals. There was a demurrer to the indictment, which was overruled, and the sufficiency of the indictment is seriously questioned here. The instrument that was charged to have been forged and uttered and published by appellant is a letter purporting to have1 been written by Ellen Goodin, inviting the appellant to her house for a private conversation. . It reads: “Barbourville, Ky., July 27, 1900. Mr. John Golson, Sir, I want you to come heare some time when they is nobody hear. I have got something to tell you. It is about what you saw at Mother’s, an’ don’t fail to come. You can come some nite when they hant nobody hear. Ellen Goodin.” In our opinion, it is clear that such writing is not the subject of indictable forgery. Indeed, the attorney-general, in his brief, confesses -the insufficiency of the indictment. “To constitute an indictable forgery,” says Mr. Bishop (section 533, 2 Or. Law), “it is not alone sufficient that there be a writing, and that the writing- be false. It must also be such as, if true, would be of some legal efficacy, real or apparent, since otherwise it has no legal tendency to defraud.” In section 523 forgery is defined to be “the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.” Mr. Blackstone defines forgery to be “the fraudulent making or alteration of a writing to the prejudice of another man’s right.” 4 BI. Com., 247. “Forgery is the false making or alteration, with fraudulent intent, of any writing, by which the party committing the act may wrongfully obtain something of value to the prejudice of another’s rights because of the apparent legal efficacy of the writing and its capacity to deceive.” 13 Am. & Eng. Enc. Law (2d Ed.) p. 1082. The statute upon which this indictment is supposed to rest reads: “If any person shall forge or counterfeit any writing whatever, whereby fraudulently to obtain the possession of or deprive another of any money or property, or cause him to be- injured in his estate or lawful rights, or if he shall utter and publish such instrument knowing it to be forged and counterfeited, he 'shall be confined,” etc. Section 1188, Kentucky Statutes. Just preceding this section there are set out various instruments declared io be the subject of forgery, and then this section (1188) follows. This section can not mean that the forging or counterfeiting of any writing is an indictable forgery. The writing forged or counterfeited mast be appárenüy such as will deprive a person of property or estate of a legal right. The words “legal right,” as used in the statutes, evidently mean a right that may be enforced in a civil action. The writing charged in the indictment to have been uttered with 'knowledge that it was a forgery does not come within the class of writings that either under the common law or the statute are subjects of an indictable forgery. On its face there is no appearance of legal efficacy, nor of anything to injure any person in his estate or property or lawful rights. The judgment is reversed, and the case remanded, with directions to sustain the demurrer to the indictment.

¡Judge Guffy dissenting.  