85 Miss. 687 | Miss. | 1904
delivered the opinion of the court.
Wilson was convicted of an attempt to commit forgery, the court below properly charging the jury that it could not convict of the crime itself. The instrument of which attempt to commit forgery.is predicated is" a draft for “two and 50-100 dollars,” as written out in the body of it, having in the upper right-hand corner the figures “$2.50-100,” as is customary in checks, drafts, •and notes, and having plainly printed and stamped on the face of the instrument the words “Ten Dollars or Less.” Wilson, with a pen, put the figure “1” before the figure “2” in the upper right-hand corner, making these immaterial figures appear “$12.50” instead of “$2.50,” and undertook to negotiate it as $12.50. This was not forgery, because it was an immaterial part of the paper, and because it could not possibly have injured anybody. In order to constitute the crime, there must be not only the intent to commit it, but also an act of alteration done to a material part, so that injury might result. Rembert v. State, 53 Ala., 467 (25 Am. St. Rep., 639); Roode v. State, 5 Neb., 174 (25 Am. St. Rep., 475); 1 Bish. New Crim. Law, secs. 572—740; Commonwealth v. Wilson, 2 Gray, 70; State v. Pierce, 8 Iowa, 235; People v. Galloway, 17 Wend., 540; Anderson v. State, 20 Tex. App., 595; State v. Smith, 8 Yerg., 150; Howell v. State, 37 Tex., 591; Barnum v. State, 15 Ohio, 717 (45 Am. Dec., 601); People v. Tomlinson, 35 Gal., 503; State v. Briggs, 34 Vt., 501; State v. Corley, 63 Tenn., 410; Cox v. State, 66 Miss., 14 (5 South. Rep., 618); State v. Means, 47 La. Ann., 1535 (18 Souths Rep., 514); Commonwealth v. Bailey, 1 Mass., 62 (2 Am. Dec., 3); Commonwealth v. Stevens, 1 Mass., 203. These authorities might be numerously added to, but it is enough to say now that they sustain what we have said, and establish also that an instrument void on its face is not the subject of forgery, and that, in order to be so subject, it must have been capable of working injury if it had been genuine, and that the marginal numbers
This being true, can the conviction of an attempt to commit forgery be sustained in the case before us ? We think not. No purpose appears to change anything on the paper except the figures in the margin, and this could not have done any hurt. Our statute (Code 1892, § 1106) confines the crime of forgery to instances where “any person may be affected, bound, or in any way injured in his person or property.” This is nqt,sa6br a case, and sec. 974 forbids convicting of an attempt “when it shall appear that the Crime intended or the offense attempted was perpetrated.” In this record the innocuous prefix of the figure “1 ” on the margin was fully accomplished, and no other effort appears, and, if genuine, could have done no harm; and so the appellant is guiltless, in law, of the crime of which he was convicted.
Reversed and remanded.
