
    Lindsey v. The State.
    1. On a charge of uttering and publishing a forged instrument with intent to defraud (R. S. § 7091), the place where the instrument was uttered and published, and not the place where the forgery was committed, determines the jurisdiction of the court over the accused.
    2. If the forged instrument has heen uttered and published in this state with intent to defraud, by means of an innocent agent here, it is no defense to an indictment in the proper county in this slate, to show, that the accused was never within the state, or that he owes allegiance to another state or government.
    3. On the trial of a person accused of uttering and publishing a forged deed for the conveyance of real estate with intent to defraud, other forged deeds for the conveyance of real estate, including deeds of trust, made to a trustee to secure the payment of promissory notes or bonds, found in his possession, or proved to have been uttered and published by him, are competent testimony to show the guilty knowledge of the accused.
    Error to the court of Common Pleas of Jefferson county.
    The plaintiff in error, and one John T. Morris, were jointly indicted in Jefferson county. The charge is, that they did unlawfully and feloniously utter and publish in said county, as true and genuine, a certain false, forged and counterfeit deed of real estate, purporting to be executed and acknowledged by Maurice F. Thornton and wife, before Herman E. Shuster, a notary public of the state of Missouri, and to convey certain lands in that state to James Turnbull, of Jefferson county, Ohio.
    The plaintiff in error had a separate trial, and was convicted and sentenced.
    The evidence tended to show that the deed was a forgery, executed in St. Louis by the notary public by the procurement of Lindsey, who then and thereafter, until forcibly brought to Ohio, was never in this state; that this deed was delivered by Lindsey or his agent to his co defendant Morris (who is awaiting his trial), and by him was sent by mail to T. & D. Hall, real estate agents in Steubenville, through whom it was uttered and published by a sale of the land to Turnbull. T. & D. Hall were the innocent agents in the transaction, and received and accounted for the purchase money, less commissions.
    The theory of the prosecution is, that Lindsey, in the state of Missouri, procured the deed to be there forged, and through Morris sent to T. & D. Hall at Steubenville by mail, to be there uttered and published, and that T. & D. Hall were the innocent agents of Lindsey, or of Lindsey and Morris, in defrauding Turnbull by a pretended sale of the land described.
    There is evidence tending to show that Morris was innocent, and also that he was a confederate of Lindsey in the transaction ; but if he was, all his acts were done in Missouri, and consisted of sending the deed to T. & D. Hall at Steubenville, and of conducting the correspondence with them.
    During the progress of the trial, and for the purpose of proving guilty knowledge on the part of Lindsey, there were admitted certain other forged deeds published by Lindsey, and others found in his possession, purporting to convey other lands to other parties.
    These deeds are either general warranty deeds, like the one described in the indictment, or trust deeds, purporting to convey lands to secure certain notes and bonds.
    The foregoing statement sufficiently presents the grounds for the legal questions saved for report.
    
      Ong c& Mansfield and James F. Dayton, for plaintiff in error:
    1. As to jurisdiction : The facts as claimed by the state do not constitute a crime in Jefferson county, Ohio. State v. Revanals, 14 La. Ann. 278; Manly v. People, 7 N. Y. 295; 1 Bishop (2d ed.) 601.
    An accessory before the fact in one state to a felony committed in another state, is guilty of a crime in the state where he became accessory, and punishable there, the principal being indictable in the state where the felony was committed. State v. Chapin, 17 Ark. 561. A person, who out of the state of Indiana becomes accessory before the fact to a felony committed within the state, cannot be punished therefor under the laws of this state. Johns v. State, 19 Ind. 421; 2 Davis Ind. Digest, 142; see art. 3, last clause of section 2 of Constitution of the United States; State v. Cassady, Hawley Am. Crim. Rep. 570 (12 Kansas 550); State v. Wyckoff, 31 N. Y. 65; Wilcox v. Nolze, 34 Ohio St. 520; Kerr v. State, 36 Ohio St. 621.
    2. Inadmissibilty of exhibits: In any event the forgeries of the trust deeds and notes, admitted in evidence, and the uttering and publishing them, knowing them to be forged, are distinct and independent crimes, not collateral to the crime on which the indictment is predicated, and were inadmissible in evidence. They are not of the same description as the Turnbirll deed. 18 Ohio 221; Barton v. State; 2 Criminal Law Reports; Shaffer v. Commonwealth, 504; 16 Ind. Lane v. State; Dibbles v. People, 4 Parker, 199; affirmed 3 N. Y. Court of Appeals; People v. Corbin, 56 N. Y. 363; 55 N. Y. 81, Coleman v. People; Bluff v. State, 10 Ohio St. 547.
    
      William H. Bliss, Joseph B. Harris and John M. Cook, for defendant in error :
    1. As to jurisdiction, see People v. Rathbun, 21 Wend. 509, 527, 541; 1 Wharton on Cr. L. (7th ed.) § 210; 1 Russell on Cr. 298; 2 Russell on Cr. 722; Wharton’s Cr. Ev. § 113 ; 1 Bishop on Crim. Law (2d ed.) § 556 ; Roscoe’s Crim. Ev. 456; 3 Greenleaf (8th ed.) § 112 ; Commonwealth v. Blanding, 3 Pick. 304; Commonwealth v. Macloon, 101 Mass. 6; Norris v. State, 25 Ohio St. 217.
    The offense of Lindsey was entirely committed within the county of Jefferson. T. and D. Hall were innocent agents. They acted under his express directions, and their act is his act, and he is responsible for the same not only civilly, but criminally. 1 Wharton Crim. Law (7th ed.) §§ 152, 153; 1 Bishop on Crim. Law (2d ed.) § 473; 1 Russell on Cr. 28; Rex v. Palmer, 1 New, 96; Robbins v. State, 8 Ohio St. 131; see also Commonwealth v. Smith, 11 Allen (Mass.) 243; Commonwealth v. Blanding, 3 Pick. 304; Rex v. Johnson, 7 East, 65; Wh. Con. of L. §§ 877-921; People v. Adams, 3 Denio, 190; affirmed, 1 N. Y. 173; U. S. v. Davies, 2 Sumner, 
      482; State v. Wyckoff, 2 Vroom (N. J.) 68; Commonwealth v. Gillespie, 7 Serg. & R. 469; Stillman v. White Roch Co., 3 Woodb. & M. 538; Rex v. Garrett, 6 Cox C. C. 260; Rex v. Jones, 4 Cox C. C. 198; State v. Grady, 34 Com. 118.
    2. As to proof of scienter: While we admit, that generally it is true that a distinct crime in no way connected with that upon which the defendant stands indicted, cannot be given in evidence against him upon the trial, yet there ai’e exceptions to this general rule, and when it becomes necessary for the state to prove affirmatively that the accused knowingly did an act, or to prove the scienter or guilty knowledge, as it is called, then the exception arises, and this character of evidence is admissible. Hess v. State, 5 Ohio, 9; Reed v. State, 15 Ohio, 223; Griffith v. State, 14 Ohio St. 62; Shriedley v. State, 23 Ohio St. 130; Bainbridge v. State, 30 Ohio St. 264; Copperman v. People, 56 N. Y. 591; Coleman v. People, 58 N. Y. 555; Commonwealth v. Stone, 4 Met. 43; Commonwealth v. Price, 10 Gray, 476; 3 Greenl. on Ev. (8 ed.) § 111; Roscoe’s Crim. Ev. 82-87, 467; Whart. Crim. Ev. (2 ed.) §30, et seq.; 2 Russell on Crimes, 403, et seq.
    
    The collateral forged instruments admissible in evidence to prove scienter, need not be identical with the instrument set forth in the indictment. It is sufficient if they are of the same general description and character, although of a different kind. 2 Russell on Crimes, 404, 405, 406; Roscoe Crim. Ev. 83, 84-85; 3 Greenl. Ev. (8 ed.) § 15; Bayley on Bills, 619 (3d Am. ed.); Rex v. Dawson, 3 Stark. 62.
   Johnson, J.

Two questions are presented on the foregoing statement:

1st. Had the court jurisdiction over the plaintiff in error ? and,

2d. Were the conveyances of other lands admissible for the purpose of showing guilty knowledge ?

1st. As to the jurisdiction of the court. Is the crime charged an extra-territorial crime ? Was it committed by the accused in Missouri or in Ohio ?

If he were indicted for the forgery of this deed, he could not be punished in Ohio, as it is conceded that all his acts that constitute that crime were committed in Missouri. When he procured the notary in St. Louis to forge the signatures, and 'the acknowledgment of the grantors, with the criminal intent, the crime of forgery was consummated in the state of Missouri. But this is not the charge in the case at bar. It is for knowingly uttering and publishing as true and genuine a false and forged deed. It is wholly immaterial where the forgery was committed.

The question therefore is, was this deed uttered and published in Jefferson county, Ohio, and was Lindsey guilty of this crime ?

That this forged deed was uttered and published in Ohio, by T. & D. Hall, who supposed it was genuine, is clear from the evidence.

Now, it is assumed that the jury had evidence to warrant them in finding that T. & D. Hail did so utter aud publish this deed by the procurement of Lindsey.

The crime was therefore completed or consummated in Ohio, through the instrumentality of an innocent agent. It is-wholly immaterial whether his co-defendant Morris was his confederate or his dupe, as in either case the acts of Morris by correspondence mailed in St. Louis to T. & D. Hall, were simply the means used to consummate a crime in Ohio. The crime had its inception in Missouri, but it was committed in Ohio by innocent agents. If a letter containing a forged instrument is mailed at one place to be sent to another, the venue must be laid where the letter is received. 8 Greenl. § H2.

The crime of uttering and publishing is not complete until the paper comes to the hands of some one other than the ■accused, and if it be sent by mail for the purpose of being there used, the crime is not consummated until it is received by the person to whom it is to be delivered. It is a fundamental principle that a person is responsible criminally for acts committed by his procurement as well as for those done in person. The inherent power of the state to punish the uttering and publication of forged instruments within its territorial limits, without regard to the place where the forgery was committed, or purpose was formed, is essential to the protection of her people. It is now a generally accepted principle, that one who in one county or state employs an innocent agent in another to commit a crime, is liable in the latter county or state. Robbins v. The State, 8 Ohio St. 131; Norris v. The State, 25 Ohio St. 217; 1 Whart. Grim. Law, 7th ed. §§ 210, 278 ; see also Commonwealth v. Macloon, 101 Mass. 1; Commonwealth v. Smith, 11 Allen (Mass.) 243; Commonwealth v. Blanding, 3 Pick. 304; Rex v. Johnson, 7 East 65; Wh. Con. of L. §§ 877-921; People v. Adams, 3 Denio, 190, affirmed, 1 N. Y. 173. United States v. Davies, 2 Sumn. 482; State v. Wyckoff, 2 Vroom (N. J.) 68; Commonwealth v. Gillespie, 7 Serg. & R. 469; Stillman v. White Rock Co., 3 Woodb. & M. 538; Rex v. Garrett, 6 Cox C. C. 260; Rex v. Jones, 4 Cox C. C. 198; State v. Grady, 34 Com. 118.

2d. Were the deeds and deeds of trust admissible for the purpose of proving guilty knowledge.

It is essential that the prosecution should, by competent evidence, satisfy the jury that' the accused had such knowledge.

These instruments were either general warranty deeds, like the one described in the indictment, or deeds of trust to secure notes and bonds for the payment of money. It is conceded they were all forgeries. Some of them were found in Lindsey’s possession, and some of them had been uttered by him. They were all deeds of land, some conveying the title absolutely to the grantee, and others to vest such title in the grantee in trust to secure the payment of money. Under the statute of Ohio (R. S. 7091) it was an indictable ofíense to forge such instruments, or to utter and publish them with intent to defraud. The crime here charged is, that of uttering and publishing a forged deed of general warranty.

The claim is, 1st, that none of these instruments were admissible, because of the general rule that another and a distinct crime, in no way connected with the one charged, can be given in evidence on the trial of the crime charged; and, 2d, that even if the warranty deeds were admissible, the deeds of trust were not, as not being of tbe same description with tbe deed described in tbe charge.

That the warranty deeds were admissible is well settled. “ In proof of the criminal uttering of a forged instrument it is essential to prove guilty knowledge on the part of the utterer. And to show this fact evidence is admissible that he had about the same time uttered or attempted to utter other forged instruments of the same description ; or, that he had such others, or instruments for manufacturing them in his possession.” 3 Greenl. Ev. (8th ed.) § 111; Hess v. State, 5 Ohio 9; Reed v. State, 15 Ohio 217; Shriedley v. State, 23 Ohio St. 130; Bainbridge v. State, 30 Ohio St. 264.

But it is claimed that these deeds of trust were not of the same description,” as the warranty deed, described in the indictment. The words “ of the same description,” are taken from the above citation from 3 Greenleaf. Ev.; but in 1 Greenl. Ev. § 53, the text reads: So an indictment for knowingly uttering a forged document, or a counterfeit banknote, proof of the possession, or the prior or subsequent utterance of other false documents or notes, though of a different description, is admitted as material to the question of guilty knowledge or intent.”

The rule, as stated -by Phillips is : Thus, in a prosecution for uttering a bank-note, bill or promissory note, with knowledge of its being forged, proof that the prisoner had uttered other forged notes or bills, whether of the same Mnd or a different Icincl, or that he had other forged notes or bills in his possession, is clearly admissible, as showing that he knew the note or bill in question to be forged.” 1 Phillips on Ev. 768-769.

In a note by Oowen & Hill, which discusses the cases on this rule, the conclusion reached is, that “ on the whole, the decided weight of authority would seem to be in favor of receiving the evidence, whether the other bills, &c., be ejusdem generis or not.”

This conclusion, when applied to trials for uttering forged and counterfeit instruments, is abundantly supported by the authority of the cases cited in notes to the foregoing citations. Also, The King v. Whiley, 2 Leach C. C. 983; Rex v. Ball, Russ. & Ry. C. C. 132; Sunderland’s case, 1 Lewin C. C. 102; 2 Russell on Crimes, 404 et seq. Cook v. Moore, 11 Cush. 216; Note 3 to section 53, 1 Greenleaf.

As guilty knowledge is an essential ingredient of this class of crimes, and as the burden is on the prosecution to prove such knowledge, the reason of the rule is apparent.

Without the aid of other acts and conduct of the accused, than the one charged, it would be impossible to prove this allegation. Proof of the single act charged, will not of itself warrant the inference of guilty knowledge. Hence this exception to the general rule, that other acts of the accused calculated to raise a presumption of such knowledge, are admissible. Other acts which, in their nature, do not aid the jury in determining this question, are not competent, but when such acts or conduct tend to raise a presumption of such knowledge, they are admissible.

In the case at bar, the charge is for knowingly uttering a forged deed with intent to defraud, that is, by this pretended conveyance of the title, to obtain money fraudulently. The forged deeds of trust were in the nature of mortgages to secure notes and bonds for money. They conveyed the title to a trustee to secure those who advanced money on the faith of this conveyance.

Although these instruments are not identical in tenor or affect with an absolute deed, yet the fact, if it be one, that the accused was engaged iñ obtaining money by this class of forged instruments, is calculated to raise a strong presumption that he knew that a deed of warranty used to accomplish the same purpose, — that is, to obtain money, — was also forged.

The general conduct of the accused in uttering forged deeds of trust, to raise money about the same time, tends to show he is engaged in that business, and the inference is natural and cogent, that he knew the warranty deed he uttered in the case at bar, was of the same character.

Judgment affirmed.  