
    SCULLY vs. THE STATE.
    L INDICTMENT FOR FORGERY.]
    1. Uttering mid publishing forged, instrument as true; sufficiency of verdict. Under an indictment for uttering- and publishing as true a forged instrument, (Code, § 3165,) it is not necessary that the verdict of the jury should negative the fact that the defendant received the forged instrument from another person, in good faith, and for a valuable consideration; although that faot, if affirmatively found by the jury, would reduce the offense to forgery in the third degree.
    2. Same; venue; accessory before the fact. — Where a forgery is committed in one county, and, pursuant to a fraudulent combination there entered into between the prisoner and the forger, the forged instrument is uttered and published as true in another county, the prisoner is an accessory before the fact to the offense of uttering and iiublishing, (Code, § 3526,) and may be indicted for that offense in the county in which it was committed, although all his acts in relation to it were done in the other county.
    3. Charge objectionable for generality. — A charge which asserts a correct legal proposition, though it may be objectionable on account of its generality, is no ground for areversal, since the appellant might have protected himself against injury by ashing a more specific charge.
    FROM tbe City Court of Mobile.
    Tried before tbe Hon. H. ChambeblaiN.
    The indictment in this case was found at tbe October term, 1863, of said city court, and contained two counts. Tbe first count charged, that Daniel Scully and Timothy Cluny, “having in their possession a certain bill of exchange, whose tenor follows,” (setting out a bill for $2,000, dated at Wetumpka, August 18, 1863, drawn by W. T. Hatchett, on Baker, Lawler & Co., Mobile, and payable to A.B.Harwell or order,) “feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly .aid and assist in tbe false making, forging, and counterfeiting, on said bill of exchange, an endorsement thereof, whose tenor follows — that is to say, ‘ A. B. Harwell’ — with intent to defraud.” The second count charged, that said defendants, having in their possession a certain other bill of exchange, (setting it out as in the first count,) ‘■‘on which was written a certain false, forged, and counterfeited endorsement, whose tenor follows — that is to say, ‘A. B. Harwell’ — feloniously did utter and publish as true the said last-mentioned false, forged, and counterfeited endorsement of said bill of exchange, then and there well knowing the said endorsement to be false, forged, and counterfeited.” The defendant Scully was tried alone, and pleaded not guilty; and issue was joined on that plea.
    “On the trial,” as the bill of exceptions states, “the State examined A. B. Harwell as a witness, who testified, that he was a soldier in a battalion at Fort Morgan; that he sent home, by his son, for $2,500 to pay for a substitute; that his son returned with $500 in money, and the draft referred to in the indictment; that the defendant came down to the fort from Mobile, and agreed to serve as substitute for that amount; that he was examined and approved by the surgeon and captain, and the latter was proceeding to take from him the usual preliminary declaration, in regard to his age, &c., when the defendant refused to make any, or to bind himself in any manner, until he was paid; that he (witness) then handed him the money and the draft, as payment ; that the defendant at first objected to the draft, but, when the captain said that he knew the house of Baker, Lawler <fc Co., and. that he believed it would be paid, remarked that he would risk it, and took it; that he then signed the declaration required by the captain, and went out, while witness remained to receive his discharge, all persons present considering that the transaction was complete; that he (witness) learned from the captain, about a half-hour after-wards, that he could not get his discharge, as the papers must be approved by the general at Mobile., and he was advised by the captain to get back his money and draft; that he then went in search of the defendant, and found him coming from the wharf, the boat having left; that he informed defendant, and asked bim for tbe money and tbe draft; tbat tbe defendant replied, ‘tbat be bad sent tbe draft to town by Cluny’ — ‘tbat be tbougbt it was all settled’ — ‘tbat be would send and bave tbe draft brought back, and would band back it and tbe money, and would make it all right.’ Said witness further said, tbat defendant’s name was put on tbe roll by a sergeant, but be was not sworn in, and performed no duty; tbat be (witness) beard no more of bis application for ten or fifteen days, when it came back disapproved; tbat be went to tbe defendant, who was then confined by tbe order of tbe captain, but could not get either tbe money or tbe draft; tbat be bad not since seen tbe draft, until tbe day of tbe trial, but tbe money was found, on strict search of tbe defendant’s person, and returned to bim; tbat it was concealed in parts of tbe defendant’s clothing, and some of it was sewed up in tbe bning of bis cap; tbat tbe draft was not endorsed when be banded it to tbe defendant, and nothing was said about an endorsement of it; tbat tbe boat came down from Mobile every other day, and bad been- down several times before bis appbcation was refused; tbat tbe transaction took place between tbe 1st and 5th September, 1863, and be beard of tbe refusal about tbe 15th.
    “It was shown tbat tbe draft bad been in the city of Mobile, in tbe bands of- Patrick Dunn, about tbe 5th or 6th September, and was then without endorsement; and it was proved to bave been paid to said Dunn on tbe 9th September, tbe name of said Harwell having then been endorsed on it, and it being then presented to Baker, Lawler & Co. for payment, and paid by them, — they taking Dunn’s endorsement thereon. Upon this, Dunn was arrested for tbe forgery of tbe endorsement of Harwell’s name; and on bis examination, tbe defendant was examined as a witness, and made a statement, which was reduced to writing, and which was proved by tbe State, and read as evidence to tbe jury, as follows: “I sent tbe check to Dunn, by Cluny. It came back to me by tbe next boat. Cluny brought it back. I sent it up to Dunn to collect tbe money. It was sent back by bim, because it was not endorsed. I sent it back tbe second time by Cluny. When I sent it tbe first time, it was not endorsed. "When it came back to me, it was not endorsed. When I sent it back the second time, it was endorsed. I made Clnnj endorse it. Dunn came down to the fort afterwards, but was not there at the time of these .transactions. At the time I was mustered in, I thought the money was my own. Major Gee said, that the papers would have to go before General Maury; this was after I had received the money and the check. I was authorized by Mr. Harwell to do as I liked with the check. There was nothing at all about the check coming back. When me and Harwell and Cluny were coming out of the door, I said that I did not like the appearance of the check. He said, I had all the money, (all to twenty dollars,) and to do as I pleased with the check — to endorse it, or throw it in the river. That was just after we were leaving the captain’s quarters, and after it had just been handed to me. I sent the check up by Cluny. I have received no money of the $2,000. I have not seen Cluny since I sent the draft by him, to Dunn for collection, and Cluny was to bring the money down to me. Dunn had nothing to do with it. I sent it to him as a friend, to collect for me. He was to have no part of it.’ Harwell said, also, that there was a man in company with the defendant whom he did not know; and a witness for the defendant said it was Cluny. He was not in court, and was said to have absconded. It was admitted, that Fort Morgan, where the transaction took place, was in Baldwin county; and that Dunn, to whom the draft was sent, and Baker, Lawler & Co., who paid it, lived in the city and county of Mobile; and that it came to the hands of said parties in Mobile county.
    “The foregoing being substantially the evidence that was adduced, the court charged the jury, at the request of the defendant, that if they believed the forgery was made in Baldwin county, and there delivered to a party to bring to Dunn, in Mobile, to be presented by him, in Mobile, for payment, if delivered as a good endorsement in Baldwin, it is an uttering there, and the offense would be complete there, and the jurisdiction would be in Baldwin county, and not in Mobile, as to the uttering; and that if they believed the draft was delivered to the defendant as his own, for the purpose of presenting and collecting it for bis own use, and be was told that be might do as be pleased with it, — in sucb case, tbe putting of tbe payee’s name on it, for tbe purpose of collecting it, would not make bim guilty of forgery. But tbe court charged tbe jury, that although tbe deposition of tbe defendant was evidence before them, they were not bound to believe it to be true, unless they thought it was true; that they must take into consideration all tbe evidence and surrounding circumstances; and that if they believed there was a confederation and combination between, tbe defendant and Cluny, to defraud said Harwell, or any other person, by means of forgery, then, although, tbe name was written in Baldwin county, and it was presented and paid in Mobile, tbe defendant, as well as Cluny, would, by reason of sucb combination, be guilty of uttering in Mobile county, if tbe uttering was in pursuance of sucb combination. To all which charges tbe defendant excepted.”
    Tbe jury returned a verdict in these words: “We, tbe jury, find tbe defendant guilty on the second count only.” Tbe defendant moved in arrest of judgment, “on tbe ground that tbe verdict does not ascertain whether tbe offense, of which they found tbe defendant guilty, fell within tbe second or third degree, so that it is uncertain what punishment should, according to law, be awarded against bim.” Tbe court overruled tbe motion in arrest, and sentenced tbe defendant to five years’ imprisonment in tbe penitentiary.
    Geo. N. StewaRT, for tbe prisoner.
    M. A. Baldwin, Attorney-General, contra.
    
   STONE, J.

Tbe second count of tbe indictment in this case is based on section 3165 of tbe Code, which reads as follows: “ Any person who utters and publishes as true, and with intent to defraud, any forged or counterfeit instrument, or writing, or any counterfeit gold, silver, or other coin, tbe forging or counterfeiting of which is declared by this article to be an offense, knowing sucb instrument, writing, or coin to be forged or counterfeited, must, on conviction, be adjudged guilty of forgery of sucb instrument, or writing, or of counterfeiting sucb coin; but, if it appear on tbe trial that tbe defendant received sucb forged or counterfeit instrument, writing, or coin, of another, in good faitb, and for a valuable consideration, without any circumstances to justify tbe suspicion of its being forged or counterfeited, be must, on conviction, be punished as if guilty of forgery in tbe third degree.”

Tbe forgery charged in tbe indictment in this case, for uttering which tbe defendant was convicted, is forgery in tbe second degree, under section 3158 of tbe Code. Being convicted of knowingly uttering sucb forged instrument, <fcc., tbe law adjudges tbe defendant guilty of forgery in tbe second degree, unless it appeared “that tbe defendant received sucb forged instrument of another, in good faitb, for a valuable consideration,” &c. It is here contended, that no judgment of conviction should have been pronounced on tbe verdict of tbe jury, because it fails to find whether or not tbe defendant received tbe forged instrument of another, in good faitb, &c., under tbe section of tbe Code above quoted. In support of this proposition, two decisions of this court are relied on — viz. : Cobia v. The State, 16 Ala. 781, and Johnson v. The State, 17 Ala. 627. See, also, State v. Montague, 2 McCord, 257; McPherson v. The State, 9 Yerger, 279 ; Kirby v. The State, 7 Yerger, 259.

With tbe decisions in tbe cases of Oobia and Johnson, (supra,) we are entirely satisfied. Tbe statute had divided murder into two grades, and bad, in terms, made it tbe duty of tbe jury, if they found tbe defendant guilty, to ascertain by their verdict whether he was guilty of murder in tbe first or second degree. Hence, a general finding of guilty of murder, without ascertaining tbe degree, did not authorize tbe court to pronounce judgment on tbe finding. Tbe court bad no means of determining tbe degree of tbe defendant’s guilt. Tbe statute under which these proceedings are instituted — sectiqn 3165 of tbe Code — is entirely different in its frame and phraseology. Forgery, under our Code, is divided into three degrees: first, second, and third. Section 3165 embraces forgeries in each of tbe several degrees; and under its provisions, offenders may be punished under each of tbe grades, depending on tbe nature of tbe instrument forged and uttered. Tbe last clause is in the nature of a proviso, operating for the benefit of the accused, if be can bring bimself within its provisions. Its language is, “ if it appear on the trial,” &e. Unless it appear on the trial, the defendant cannot claim the privilege it confers; and the silence of the record on the question, precludes us from affirming that it did appear on the trial. As presenting some analogy to this question, see 1st Waterman’s Archbold, 81-2-3, and notes; Spiers v. Parker, 1 T. R. 141; The King v. Hall, ib. 320; The King v. Earnshaw, 15 East, 456; Steel v. Smith, 1 B. & Ald. 94.

We hold, that the verdict in this case justified the judgment rendered.

The last charge of the court, to which exception was taken, when properly construed, asserts only that, if the forgery was committed in Baldwin county, and if defendant and Cluny, in order to defraud Harwell or another, there combined to accomplish their purpose, by having the said forged instrument uttered in Mobile county; and if, pursuant to such combination, the forged instrument was uttered in Mobile, then the defendant could be convicted of uttering in Mobile county, although all his acts in connection therewith were done and performed in Baldwin county. The facts supposed in the charge would clearly constitute the prisoner an accessory before the fact in the crime of uttering the forged instrument; and inasmuch as accessories before the fact are made principals by the Code, this charge is free from error. — Code, § 3526. See, also, Bishop v. The State, 30 Ala. 34; People v. Rathbun, 21 Wend. 509.

The charge of the court which instructed the jury, that they were not bound to believe certain evidence before them (the deposition of defendant) to be true, asserted but a truism, and is free from error. We are not able to perceive that this charge was so framed as to mislead; and, if it was so general as not to satisfy the wishes of the accused,- or the wants of his case, it was his privilege to ask a more specific charge.

Judgment of the city court affirmed.  