Johnson v. State
47 Fla. 35
Fla.
1904
Check Treatment
Carter, J.

— At the fall term, 1903, of the Circuit Court for Columbia county, plaintiff in error was indicted, tried and convicted of the-crime of uttering and publishing as true a false, forged and counterfeit order, and from the sentence imposed sued out this writ of error.

The sufficiency of the indictment was qrrestioned by motions to quash and in arrest of judgment, and the rulings denying these motions are assigned as error. The indictment set out in haec verba the alleged forged instrument as follows:

“Mr. Alex. Sapp
Please let Jim have $1.00 in trade and oblige, $1.00. C. H. Rogers.
P. S. Will pay Thursday.”

It is contended that the instrument “on its face is a trivial and gratuitous request, possibly a bungling attempt to gain temporary credit or something by a false pretense, but not such a paper as to deceive any one, or to be negotiated or put in circulation, and certainly not to be dignified as a forgery, or as falling within the contemplation of our statutes concerning same,” and the case of West v. State, 45 Fla. 118, 33 South. Rep. 855, is cited as sustaining the contention. In that case the order was not set out at length in the indictment, but was described as an order *37purporting to have been signed by Jim Brock, addressed-to Dr. F. C. Wilson authorising him to let the defendant have what medicine and attention he desired. The gist of the decision in that case is found in the following language which we quote from the opinion: “In other words the indictment fails to show otherwise than that the alleged forged order might have been a mere gratuitous request by Jim Brock to E. C. Wilson, without consideration or obligation upon Brock, to let West on his own responsibility have what medicines he desired.” ' In the present case the order is set out totidem verbis and appears on its face to be a request from Rogers to Sapp to let Jim have $1.00 in trade, with an obligation in the postscript to “pay Thursday.” This prima facie imports an obligation upon the part of Rogers to pay Sapp for what he “lets Jim have in trade,” not to exceed $1.00, and the instrument is, therefore, the subject of forgery under the criterion that “it is a writing which if genuine might aparently be of legal efficacjr or the foundation of a legal liability.” Smith v. State, 29 Fla. 408, text 424, 10 South. Rep. 894; King v. State, 43 Fla. 211, 31 South. Rep. 254. See, also, Hendricks v. State, 26 Tex. App. 176, 9 S. W. Rep. 555, 557, S. C. 8 Am. St. Rep. 463. While there is a conflict of authority as to whether an instrument like the one here set out is embraced within the meaning of the language “an order for payment of money or delivery of goods” in the English forgery statute of 7 Geo. 2, chap. 22, and others copied from it, we are of opinion that the instrument is, within the meaning of our statute (secs. 2479, 2480, Rev. Stats. 1892), which is almost identical with that in Massachusetts, “an order for money or other property.” Commonwealth v. Fisher, 17 Mass. 46; Commonwealth v. Kepper, 114 Mass. 278. See, also, Regina v. Tuke, 17 U. C. Q. B. 296.

The other assignments of error insisted upon question the propriety of certain portions of the charge given by the court. No exceptions to the charge were taken at the trial though it is contended that certain' portions thereof were *38embraced in the motion for a new trial, and should, therefore, under the statute be treated as excepted to. The motion for a new trial is not exhibited here by a bill of exceptions and we can not, therefore, consider it for this purpose, though the clerk may have copied it in the transcript. Coleman v. State, 43 Fla. 543, 30 South. Rep. 684; McDonald v. State, 46 Fla. 149, 35 South. Rep. 72; Parnell v. State, decided at the present term.

The judgment of the Circuit Court of Columbia county will be affirmed.

Hocker, Shackleford and Cockrell, JJ., concur.

Taylor, C. J., absent on account of sickness.

Whitfield, J., disqualified, took no part in the consideration of this case.