
    WESTMORELAND COUNTY.
    June Term, 1792.
    Pennsylvania v. Robert M‘Kee.
    
      ROBERT M'KEE being sued by David Semple, before a justice of the peace, for a balance of about thirty shillings, set up a defence, that the debt was contingent, and that the contingency had not happened — The justice gave judgment against him, and Semple dying, M'Kee went to the justice and produced a receipt in full, which he said was given him by Semple, and had been discovered by him since the judgment. The receipt had been originally given by Semple for a debt paid to him as administrator of Samuel Miller. But there was now an interlineation, in different ink, and smaller letters, immediately above the name of David Semple, as follows, “ and one pound ten shillings in full of my demand against Robert M'Kee.” The original receipt and the interlineation were in the hand writing of M'Kee ; but it was the interlineation only that was charged as a forgery.
    There were three counts in the indictment. All stated the particular circumstances. The first was on the act of assembly ; the 2d was at common law, for forging this receipt ; and the 3d was at common law, for uttering this receipt knowing it to be forged. The subscribing witness proved, that the interlineation was not in the receipt, when it was signed; and it was also proved, that the receipt being, detained as suspicious, by the justice to whom it was offered, as evidence of payment, M'Kee had paid the balance to the administrators of Semple.
    
    
      Woods Inft. 428. 1 St. L. 5.
    
    
      4 Comm. 358.
    2 Ld. Ray. 1401.
    2 Ld. Ray. 1461. 2 Bac. abr. 569. 1 St. L. 5.
    
      1 St. L. 5, 64.
    
      2 Hawk. 354.
    
      2 Ld. Ray, 1461.
    Brackenridge, Ross, and Young, for the defendant.—
    The British statutes against forgery extend not here. It is not forgery at common law, for it is not a deed, nor is it forgery by our act of assembly. It is no false composition, but a real receipt. Comparison of hands is no evidence in criminal cases, and the proof here is only by comparison of hands. Sidney's case.
    The case of the King v. Ward, was out of the common way, a severe proceeding on the interposition of the house of lords, to avenge one of their own body ; and the doctrine there laid down changes the whole law on the subject, and is not supported by any authority.
    
      Galbraith and Nagle contended,
    that it was a forgery at common law, and on our act of assembly, citing the King v. Ward—and other authorities.
   President.

Though the first count pursues not the words of the act of assembly, yet if it state facts, which, in legal construction, amount to counterfeiting the hand and seal of another; why should it not be a good indictment on the act of assembly ? Such facts are here stated. This however may be questionable.

But there is no doubt, that the second count at common law fully comprehends this case ; and that the forgery of any writing, which may be prejudicial to another, is forgery at common law. The case of the King v. Ward is well founded, both on authority and principle ; and we rely on it, as conclusive in the present case.—The third count is also at common law, for uttering this receipt, knowing it to be forged, and is good, if the facts are proved.

As, to the evidence; where the matter is doubtful, it is a good rule, to incline to acquittal. But presumptive evidence, however decried or dangerous, is often decisive, and as convincing to the mind, as the most positive testimony. It is the language of facts. And, to reject it, would, in cases of private villainy, such as this indictment states, hold out a general charter of pardon. Comparison of hands, or proof by witnesses acquainted with the hand writing, is proper proof to he left to a jury, especially where, as in the present case, the writing is found in the possession of the party. Whether the presumption arising from such proof will outweigh the common presumption of innocence, and produce conviction, may depend on the concurrent circumstances, and their impression on the minds of the jury.

4 Comm 358 Gilb. L. of Evid. 53. 2 Hawk 607. Ld. Ray 40. 2 Bac. Abr. 313. 1 Burr. 644.

2 Hawk. 325, 326.

We think the proof strong against the defendant, and sufficient, if you believe it, to justify you in convicting him of forging this receipt, and uttering it, knowing it to be forged.

Verdict not guilty, on the 1st count ; and guilty, on the 2d and 3d counts.

At December term, 1792, a motion in arrest of judgment was argued, on the following grounds, by the defendant's counsel.

The jury having acquitted Robert M'Kee, on the first count, we have only to examine whether any judgment can be given on the second or the third. The third count will require little attention. The bill was found, at March sessions, 1792, and tried at June sessions, on the 14th of June, 1792, and the third count lays the publication on the 27th June, 1792, which is about two weeks after the trial, and three months after the finding of the indictment. The offence laid in the third count being thus impossible, it remains only to confider, whether judgment can be given on the second count.

The second count charges Robert M'Kee, “that he, on 19 November 1790, having in his possession a certain receipt in writing, signed by one David Semple (lately deceased) which receipt was in the words, letters, figures, and cyphers, following, that is to say, Received 19 November 1790, the sum of 4l. 10s. in part of a debt due to the estate of Captain Samuel Miller, deceased, for a millsaw-David Semple, he, the said Robert M'Kee, afterwards, that is to say, on the said 19th day of November, in the year of our Lord 1790, with force and arms, at the township aforesaid, in the county aforesaid, the said receipt falsely did alter, and cause to be altered, by falsely forging and adding the cyphers, words, and letters, and one pound ten shillings in full of my demand against Robert M'Kee, with intention to defraud the foresaid David Semple (deceased) of the sum of one pound ten shillings against the peace, &c.”

Rex v. Tucker, 1 Ld. Ray, 1.

We think judgment cannot be given on this count.

1. The indictment must state an offence, with sufficient certainty, without any explanatory matter dehors the record, and so, as, if proved, no presumption of innocence can remain. Now this count states not, in what part of the receipt the inserted words were inserted, but only that the words were inserted on the same paper. They might have been below the name of David Semple, and so it would not have been his receipt, and he could not have been defrauded. So also it might have been on the back of the paper.

2. This count states not what the words and cyphers inserted were ; and the court is not now to know, in what manner they were proved ; but to judge only from the record, and it ascertains not what words were added.

As the court will make no intendment to criminate the defendant, nor aid the indictment, by the evidence, we move, that the judgment be arrested. And we would suggest, that there was at the trial ground to believe, and we can now prove, that the sum expressed in the receipt was really paid ; that, at any rate, the offence is trivial, and the defendant has been sufficiently punished, by the anxiety, expence, and trouble, which he has undergone.

This case was mentioned again, and the opinion of the court given, at June term, 1793.

President. As the most natural presumption to be drawn from the face of this indictment is, that the words constituting the forgery were added after the name of David Semple ; and, if this were the case, the fraud, if any, would have been so palpable, that no man could be deceived by it; the judgment must be arrested, on the second count.

It clearly must be arrested on the third count, the time laid in the indictment being contradictory to the caption and the trial.  