State v. . Lamb

Dick, J. The question presented on the motion in arrest of judgment, is whether the forged paper writing set forth in haec verba in the indictment, and described as an “ order for the delivery of goods ” comes within the meaning of our statute. Rev. Code, ch. 34, sec. 59. The same language is used in the statute, 7 Geo. 2, and has frequently received judicial construction in England. “ A forged order on a tradesman in the name of a customer, requesting that the goods mentioned in it, might be delivered to the bearer, is not within the statute, 7 Geo. 2, if the customer has no interest in the goods mentioned.” Williams’ case, 1 Leac, 114; Clinch’s case, Ib. 540. To constitute an “ order for the delivery of goods,” within the meaning of the statute, there must be apparently a drawer; that he must appear to have a disposing power over the goods: *422 that there must be a person drawn upon, who is under obligation to obey; and there must appear a person to whom the delivery is to be made. 1 Bish. C. L. 343. Newton’s case, 2 Moody, 89. To remedy the defects in the statute, 7 Geo. 2, pointed out in numerous decisions, other statutes were passed to cover as far as possible, all cases of forgery which might arise-in commercial or business transactions. The words “ undertaking,” “ warrant,” “ authority,” and “ request,” contained in statute 11 Geo. 4, and 1 William 4, are not in our statute and we need not refer to the construction given to these words by various decisions in the English Courts. In the case before us the forged paper writing, does not come within the statutory meaning of an “ order for the delivery of goods,” as construed and defined by the Courts in England, and we see no sufficient reason for departing from the rules which they have established. The paper in question is a request for the delivery of goods, and would come within the provisions of the English statutes against forgery, but it is not embraced in our statute. His Honor erred therefore in pronouncing judgment against the defendant, for a felony under the statute. The Attorney-General insisted in his argument in this Court, that the defendant was guilty of the crime of forgery at common law, and as he was convicted, judgment ought to be pronounced against him for this offence. After careful consideration, we are of opinion that such, a position is correct in law. In Wood’s case, Strange, 747, it was held that forging an order for the delivery of goods, was a misdemeanor at common, law; and Mr. East considers this case to have settled the rule; that the counterfeiting of any writing with a fraudulent intent, whereby another may be prejudiced, is forgery at common law. 2 East. P. C. 861. In our case the forged paper is set out fully in the indictment, ánd we can see that it is such a forgery as is punishable at common law, and judgment may be pronounced, although *423 the prisoner was indicted under the statute, for the conclusion against the statute may be rejected as surplusage. State v. Walker, N. C. Term Rep. 229, 1 Bish. C. Pr. 349. The objection made by the defendant’s counsel, that there is a misdescription oí the paper set out in the indictment, cannot be sustained. Under some oí the old decisions of the Courts, this objection would be fatal, — but the principle is now well established, that where the instrument is fully set out in the indictment, a technical designation of its character, may be dispensed with; and in such, a misnomer of the instrument may be rejected as surplusage. Wharton C. L. sec. 1467, and note. There was error in the judgment of the Court below, and this opinion must be certified, to the end that his Honor may pronounce judgment according fo law. Per Curiam. Reversed.