58 Ark. 242 | Ark. | 1893
Appellant’s first request was as follows : “If you believe from the evidence that the figures and characters as follows, “ (25.00),” were inserted in the - warrant adduced in evidence after the same passed out of defendant’s hands,' then said warrant is not the instrument of defendant,' and cannot be considered as evidence against him, and you should acquit him:”
Considering the allegations and the proof, this request should have been granted. It was not error to admit the warrant when offered, because it was a facsimile of the instrument'described in ■ the indictment. But it being shown aliunde• that the figures “ ($25.00) ” might have been inserted by Smith after the- warrant passed out of appellant’s possession,'the jury should have been permitted to pass upon this ; and if they as■certained such to be the fact, the defendant, under the charge as laid, was entitled to an-acquittal secundum dlleg'ata et frobata. '
The defendant has the rig'ht to insist upon such certainty and precision in the indictment as will not mislead him in his defense,- and as will relieve him of the danger of jeopardy for the same offense. 3 Rice on Rv. sec. 119, et seq. The term, “in words and figures' as follows, to-writ,” implies the same exactness as the word “tenor,” which imports an exact copy. Webster, Die. “Tenor;’’ Maxwell’s Cr. Pro. 161. -
Those authorities which hold that marginal figures, stamps, vignettes, water-marks and ornamental- designs and devices, may be omitted in description, when the instrument is set out according to its • tenor,, because they are no part of the instrument, are not in conflict with the doctrine above announced. If, in addition to the tenor, such unnecessary descriptive averments were carried into an indictment for forgery, they would have to be proven as essential to the identity of the instrument thus described. Hill v. State, 41 Tex. 257 ; Dick v. State, 30 Miss. 634.
Inasmuch as the verdict, being general, would have been good upon the first count, had the jury been properly instructed, we deem it unnecessary to pass upon the question of variance suggested as to the second count and the proof. Should another indictment be brought, as it is not necessary to set out the indorsement, the prosecuting attorney will doubtless avoid all possible difficulty of that kind. Commonwealth v. Ward, 2 Mass. 397 ; Perkins v. Commonwealth, 7 Grat. 651.
Ror the error indicated, the cause is reversed, and remanded for a new trial.