
    United States v. Joseph Larned.
    
      Quosre, whether, in an indictment under the Penitentiary Act, for forging a 11 paper writing,” it must not be averred to have been done “ to the prejudice of the right ” of some person; and whether upon an indictment for a felony, judgment may be rendered as for a misdemeanor; and whether, if the facts stated in the indictment do not amount to felony, the word “ feloniously ” may not be rejected as surplusage and judgment given as for a misdemeanor ?
   The prisoner, who tvas convicted at the last term for feloniously forging, and uttering, &c., a certain paper writing, &c., (being a certificate of freedom,) was brought up and sentenced to the penitentiary, under the 11th section of the Penitentiary Act of March 2, 1831, [4 Stat. at Large, 448]; Cranch, C. J., doubting, because the indictment does not charge it to have been done u to the prejudice of the right of any person, body politic,” &e.; and because no statute in force here, makes it felony; and because judgment as for a misdemeanor cannot be given on an indictment for felony. United States v. M’Carthy, (ante, 304.) But quaere, whether, if the facts stated in the indictment do not amount to felony, the word “ feloniously ” may not be rejected as surplus-age, and judgment given as for a misdemeanor.

If the indictment does really charge a felony, I think the authorities are pretty clear that judgment cannot be given upon it, as for a misdemeanor.

See 1 Chitty, Cr. Pl. 195, 281, 286, 287, 289; Foster, 424; Cro. Jac. 607; 11 Co. 58; 2 Hale,170; 2 Leach, 1107; Hawk. b. 2, c. 25, § 110; Bac. Ab. Indict. H. 2; Hard. 21; 8 T. R. 536; 2 East, Cr. L. 985, c. 19, § 58; 2 Hale, 192; 1 Hale, 449; 3 Chitty, Cr. Pl. 1022; 1 Chitty, Cr. Pl. 367, 368, 369; Scholfield’s case, 2 East, Cr. L. 1028; Westbeer's case, 2 Strange, 1137; Joyner's case, Kelyng, 29; 1 Chitty, Cr. Pl. 456, 638, &c.; 2 Hale, 172; 2 H. 7, 10, b.  