| Ark. | Feb 3, 1906
(after stating the facts.) The motion in arrest should have been sustained. The alleged forgery was óf a bank check. In the absence of statute, such an instrument must be set forth according to its tenor. The object of the rule is to enable the court to determine whether it is a writing that can be forged. 2 Bish. Cr. Proc. § 403. The mere substance or effect of the forged writing will not suffice, unless the instrument is lost or destroyed, is in the possession of the defendant, or otherwise wholly inaccessible to the pleader. Where such is the case, the disabling fact should be alleged. Then the substance will suffice. 2 Bish. Cr. Proc. 403, 404. “Where the law requires,” says Mr. Bishop, “the words to be laid by their tenor, the indictment must introduce them in one of the ways which denote this; it will not suffice merely to set them out accurately in fact. And if the case is within any class of the exceptions, as that the instrument is lost, or is in the hands of the defendant, * * * the excusing thing must be stated, or the indictment will be defective.” 1 Bish. Cr. Proc. § § 561, 562. The indictment for forgery should always set forth the forged or counterfeit instrument by facsimile copy when practicable. The rules of correct pleading certainly require this. State v. Bonney, 34 Me. 383" date_filed="1852-07-01" court="Me." case_name="State v. Bonney">34 Me. 383; State v. Twitty, 2 Hawks (N. C.), 248.
2. As the cause must be remanded for new trial, it will be necessary to pass upon other questions presented. The’ plea of former conviction is not well taken. It is grand larceny under our statute to steal the check described in this indictment. Kirby’s Digest, § § 1821-4 inclusive. The check under consideration was of the value of more than ten dollars to its payee, James Frizzell. It did not require any indorsement by him to enable him to draw the money’ on it. One convicted for this offense could not plead former jeopardy if he were afterwards indicted and put upon trial for forging the same check. The two offenses have nothing in common. • They are not the same. One convicted for grand larceny could not be put in jeopardy by afterwards being put on trial for forgery.
3. As the present indictment will have to be quashed, and as the matter will doubtless be referred to another grand jury, the district attorney, in case of another indictment, will doubtless conform his pleading strictly to the proof. Therefore, we need not pass upon the question of variance. It is no't improper to say, however, that an indorsement on a note or check does not constitute in law a part of the note, and need not be set out in an indictment for forgery of such note’ or check. But if the indictment is “for the forgery of the indorsement, it must be set out, accompanied with such averments as will make the offense affirmatively appear.” 2 Bish. Crim. Proc. § 410; McDonnell v State, 58 Ark. 242" date_filed="1893-12-02" court="Ark." case_name="McDonnell v. State">58 Ark. 242.
4. The court erred in excluding evidence tending to show that Robert F. Frizzell, who was the manager of James Frizzell, and who had authority to indorse his name on checks, had been in the habit of giving money and checks to ajppellant for six months prior to this occurrence, and had authorized appellant to write the name of James Frizzell on checks before. This testimony was competent, as tending to show the intent with which the alleged criminal act was done. It tended to show the relation between the appellant and the agent of James Frizzell from whom the check was taken. The testimony tended to support the theory of appellant as to how he came into the possession of the check, and as to how the indorsement was made. It was not in the nature of self-manufactured evidence.
It was not competent to ask Frizzell if he had not been asked before the committing magistrate as-to whether or not he had been in the habit of giving appellant checks as appellant claimed he had given him this one, and whether or not he had given appellant this check, and what his answers were. Frizzell had not answered these questions before the committing magistrate, and there was nothing in these upon which to lay the foundation for his impeachment. These questions had no relevancy in the case, and were properly excluded.
5. It follows from what we have said that the court erred in giving the third instruction on its own motion. There was no charge of forging an indorsement on the check, and no proof that the check itself was forged. Hence under the present indictment there could have been no uttering of a forged instrument.
It is unnecessary to pass upon the second instruction asked for appellant and refused. What we have already said sufficiently indicates what the law is upon the questions covered by this refused request. The judgment is reversed, and the cause is remanded for a new trial.