By the Court,
Nelson, J.
The prisoner is entitled on the motion in arrest to avail himself of every objection, either in substance or form, which could have been taken on a demurrer to the indictment; and the statute of jeofails or amendments is not applicable to criminal proceedings. 1 Chit. Cr. L. 358, 539, 40. 4 Black. Comm. 375. The first count is obviously framed upon the 33d section of the act against forgery, and I am of opinion that it is defective on various grounds. It in terms charges the prisoner with the forging of two distinct instruments, a mortgage and a receipt; and if the forging of either is an offence, the count is probably defective for duplicity. But the more serious difficulty is, that forging a mortgage comes within the 22d section of the act, and the degree of punishment is different from that annexed to the forging of a receipt, which comes within the 33d section; for that reason it would be impossible for the court, without making an arbitrary selection, to determine the judgment to be pro*197nounced. Again; as to the mortgage, I apprehend the court is entirely defective, by not setting forth sufficient to bring the offence within the 22d section. That section provides, that every person convicted of having forged, &c. any will, &c. or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property shall be, or purport to be transferred, conveyed, or in any way charged or affected with intent, &c, shall be punished. Now although the mortgage which is set out in hcec verba, purports to embrace a part of lot No. 21, in Dryden, yet for aught appearing in the indictment, there may not be such a lot or tract of land in existence ; it may be wholly imaginary, and for that reason its existence ought to have been averred and proved upon the trial, in order to shew that the instrument purported to be a charge upon the land within the meaning of the section. If it was not, it was wholly inoperative. Neither is it alleged in the count that Shafer, the mortgagor, whom the prisoner intended to defraud, had any interest in the land the mortgage purported to affect; and if he had not, it is difficult to discover how he could be defrauded. 3 Chit. Cr. L. 1039. The 45 Geo. 3, 3 Chitty, 794, makes it felony to forge or alter any deed, will, &c. with the intent to defraud any person. In the 3d vol. Chit. Cr. L. p. 824, 5, 6, precedents are given in conformity to the principles above laid down. That the 22d section embraces the case of a forged mortgage is obvious, not only from the terms of it, but from the 2d and 3d subdivisions, which make the forging a certificate of the acknowledgment or proof of any instrument which by law may be recorded, with the intent to defraud, forgery in the first degree. It would be difficult to discover any reason for making a distinction between the forging of a certificate of the proof of a mortgage and of the mortgage itself. Whether the forging of a receipt for the payment of money made upon the mortgage and endorsed thereon, by destroying it, would be a forgery of the mortgage, is a question not necessary tobe decided.
The second count charges simply a forgery of the mortgage,'without noticing the receipt, and is subject to all the objections stated to the first count, so far as they relate exclusively to the mortgage. The 3d and forth counts charge the *198uttering and publishing as true the mortgage, knowing it to forgec[- These counts are founded upon the 37th section, 2 R. S. p. 674, which makes the publishing of any instrument as true> the forgery of which has before been declared to be punishable, (with the exception therein mentioned) knowing it to be forged, punishable in the fourth degree. The same objections exist to these counts which have been made to the others; the public prosecutor must set forth sufficient to shew that the mortgage was a forgery within the 22d section. If it is not a forgery, the uttering of it is no offence. It was said upon the argument that if the offence set forth in the two first counts of the indictment did not come within the 33d section, but within the 22d, then the court might give judgment under the latter section, and the 27th section, 2 R. S, 702, was referred to, as authorizing the court to do so. That section has no application to this case. Where the offence charged consists of different degrees, the jury may find the accused not guilty of the degree charged in the indictment, and may find him guilty of any inferior degree, or of an attempt to commit such offence, which is all that is contained in that section.
It is obvious that the errors of the pleader have grown out of a misapprehension of the section under which the of-fence should have been charged; the indictment is drawn under the 33d section, when the offence came within, and should have been charged under the 22d section. For these reasons we are satisfied that the judgment ought to be arrested, and so advise the court of general sessions.