Barker v. StateBarker v. State
— The plaintiff in error was convicted in the Circuit Court for Walton County for uttering a forged order or draft, and seeks here a reversal of the judgment оn writ of error.
The indictment contained two counts. The first for the forgery of a written order on W. S. Green for three dol
At the trial the court eliminated the first count. He instructed the jury that they should not consider the defendant’s guilt or innocence under the first count.
There is no explanation in the record further than that made by the court why the jury was instructed to ignore the first count. When the alleged forged оrder was offered in evidence by the State Attorney the defendant objected to 'its introduction, as the court later said In the charge to the jury, because the alleged order did not “compare with the instrument set out in the first count of the indictment. But that is not a sufficient explanatiоn of why the jury should be instructed not to consider the defendant’s guilt or innocence under that count. The defendant was entitled to an acquittal on that count if the proof did not sustain the charge.
The order which was offered in evidence in support of both the first and second counts is before us by special order of the judge. It is as follows as nearly as we can decipher the same: “Knox hill Fla. May-5-1916 date 18. Mr. W. S. Green please let Charley Barker have $300 and charge to me Yours truly Bill rushing.”
The court held that this order did not support the first count, although the variation betweеn the order as set out in the indictment and the original consisted in the following : The purported copy as set out in the indictment
The variation between the copy аs set out in the second count and the original consists of the following: The letter “w” is substituted for the letter “x” in the name of the place as it aрpears in the date line so that the copy reads “Know hill” instead of “Knox hill.” The letters “Fla” are omitted from the date line,, so are the wоrds and figures “date 18” and a decimal is inserted after the figure “3” in the body of the instrument so that the copy reads “let Charley Barker have $3.00 and chаrge to me” instead of “let Charley Barker have $300 and charge to me” as appears from the original.
Counsel for the defendant objected to the introduction in evidence of the written order upon the ground that the paper writing offered in evidence “is not the paрer as copied in the indictment.” This objection was overruled, and the defendant excepted. This ruling constitutes the first assignment of error.
It was рroper that the indictment in this case should set out the material parts of the alleged forged instrument to the end that the court might be able tо judge by inspection of the instrument whether from its terms it was the subject of forgery. See West v. State,
We think that the order as set out in the indictment was an order within the meaning of our statute “for money or other property” and if genuine might be the foundation of a legal liability upon Bill Rushing to pay W. S'. Greеn for whatever amount he might let Charley
No attack was made upon the indictment because it failed to allege in the first count that the defendant made and forged the instrument with intent to defraud any one. The second count does allege that the uttering of the forged writing was with intent to defraud W. S. Green. In the second count the instrument was set out in Meo verlya, and we think that the letters “Fla” in the date line of the oriignal order was a part of the instrumеnt and constituted an essential description of it, liekwise were the character and figures “$300” appearing in the body of the instrument.
The rule anounced by this court in Smith v. State,
It is argued by the Attorney General that the variance as to the amount is immaterial because whether the amount advanced or sоught to be obtained under the instrument was one cent or one hundred dollars the uttering of the forged instrument would have been complete. But the quеstion presented here involves a rule of evidence which requires proof as laid in the indictment. If the original order had been received in evidence without objection the question of whether there was a variance between the proof and allegation might not be sustained if it should be considered that neither the date, place where made nor amount for which the order was given were material parts of it,, but the defendant raised the question of the admissibility of the paper in evidence because as he claimed, it did not corresрond with the instrument described in the indictment. This court has several times referred to and followed the well recognized rule of evidence which rеquires correspondence between the allegation and proof. The old common law rule which required instruments in cases of forgery to be literally set out in the indictment may be so modified as not to require minuteness of description, it need not be particularized by setting out unnеcessary marginal figures, characters, numbers, devices, dates, etc., but if the pleader chooses to do so, making them descriptive of the instrument, he will be held to strict proof according to the allegations. See Haupt v. State, supra; 13 Ency. of Ev. 711; Bennett v. State,
The defense interposed was that Bill Rushing authorized the defendant to write the order and present it to
For the errors discussed and pointed out the judgment is reversed.