Charles A. Miller, Plaintiff in Error, v. The People of the State of New York, Defendants in Error

Charles A. Miller, Plaintiff in Error, v. The People of the State of New York, Defendants in Error. (Submitted February 20, 1873; decided February 25, 1873.) In an indictment for forging and uttering a check it is not necessary to set forth indorsements appearing upon the check or a revenue stamp attached thereto. Neither form part of the check, which is a complete instrument of itself, and such omission therefore does not constitute a. variance. Error to the General Term of the Supreme Court in the first judicial department to review judgment affirming judgment of the Court of General Sessions in and for the city and county of New York, entered upon conviction of plaintiff in error of forgery in the third degree. Plaintiff in error, was indicted for forging and uttering a check, which was set forth in the indictment. Upon the check, as given in evidence upon the trial, appeared the indorsement of the .payees named therein, and a revenue stamp was attached thereto. The counsel for the prisoner requested the court to direct the jury to acquit upon the ground of variance between the indictment and the proof, in that the indictment did not set forth the indorsement or the revenue stamp. The court denied the request, and counsel fexcepted. William F. Kintzing for the plaintiff in error. In a case of forgery the instrument forged must be set out in "the indictment in words and figures. (People v. Rynders, 12 Wend., 425; Rex v. Lyon, 2 Leach C. C. [4th ed.], 597; Rex v. Mason, 2 East P. C., 975; State v. Gaston, 2 Southard, 744; State v. Twilty, 2 Hawks, 248; Stephens v. State, Wright, 70; 1 East P. C., 80, and note; State v. Handiy, 20. Me., 81; 1 Wharton Am. Cr. Law [60 ed.], § 306; 2 Gabbitt Cr. Law, 231.) The ple&d'er, by the language used in the. indictment, imports to set forth the check verbatim. (Com. v. Wright, 1 Cush., 46; State v. Bonny, 34 Me., 383; Rex v. Gilchrist, 2 Leach C. C. [4th ed.], 660; Rex v. Carter, 2 East P. C., 985 ; Rex v. Powell, 1 Leach C. C. [4th ed.], 77; 2 East P. C., 976; 2 Wm. Black., 787.) If words are used which imply that a correct recital is intended, the instrument must be set out correctly. (Rex v. Beach, Cowp., 229; Rex v. Carter, 2 East P. C., 985.) Benj. K. Phelps for the defendants in error. The indorsement was a distinct instrument, and it was not necessary to set it forth in the indictment. (Com. v. Ward, 2 Mass., 397; Com. v. Perkins, 7 Grat., 143; Simmons v. State, 7 Ham., 116; Com. v. Adams, 7 Metc., 50; 2 Ben. & Heard. [2d ed.], 104,105.) [MAJORITY — Rapallo, J.] Rapallo, J. The counsel for the prisoner claims that there was a variance between the indictment and the proof, in that the forged check produced at the trial bore the indorsement of the payees, while the indictment set forth the check only without the indorsement. There was no averment or proof that the indorsement was forged. The charge was of forging the check and uttering it as true. The check was a complete instrument without the indorsement. The indorsement did not form part of the check, but was a distinct contract. It constitutes no variance, though not set forth in the indictment. (Hess v. State of Ohio, 5 Ohio R., 9; Com. v. Ward, 2 Mass., 397; 2 Russell on Crimes, 460.) The internal revenue stamp clearly formed no part of the instrument, and the omission to describe it constituted no variance. (People v. Franklin, 3 Johns. Cases, 299.) The judgment should be affirmed. All concur. Judgment affirmed.