Austin v. State.

thorities, one does not commit forgery who, by fraudulently misrepresenting the contents of an unexecuted instrument, or by misreading or altering it, prevails on another to sign it, supposing himself to be executing what is different."

It is said, however, that in Hill v. State, supra, this court was dealing with common-law forgery, and not with forgery as defined by our statute; the latter having been passed in 1829, and subsequent to the decision in that case.

Chapter 1, sections 2 and 3, of the Acts of 1811 were in force at the time Hill v. State was decided, said statute being as follows:

"2. Be it enacted, that if any person or persons shall falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, any deed, will, testament, bond, writing obligatory, bill of exchange, promissory note for payment of money or delivery of goods or other valuable articles, or bond for the conveyance of land, indorsement or assignment of any bond or writing obligatory, bill of exchange or promissory note for payment of money or delivery of goods or other valuable articles, or bond for the conveyance of land, or any acquittance or receipt either for money or goods, or other valuable articles, with intention to defraud any person or persons, or any corporation, and shall thereof be convicted in any court in this State having jurisdiction thereof, he, she, or they shall be adjudged guilty of felony, and shall be fined in any sum not less than twenty, nor more than five hundred dollars, and imprisoned not less than three nor more than twelve months, and furthermore

Austin v. State. .

receive on his, her or their bare back, not less than five, nor more than twenty-five stripes."

"3. Be it enacted, that if any person or persons shall falsely make, alter, forge, or counterfeit, or cause or procure to be made, altered, forged or counterfeited, or willingly act or assist in the falsely making, altering, forging or counterfeiting, or shall utter, publish or pass, knowing it to be falsely made, altered, forged or counterfeited, any acceptance of any bill of exchange, or draught for the payment of money or delivery of goods or other valuable articles, or the number or principal sum of any accountable receipt, for any note, bill, or other securtiy for the payment. of money, or any warrant or order for the payment of money, or delivery of goods or other valuable articles, or any land warrant, or an assignment thereof, with intention to defraud any person or persons, or corporation, or this State, and being thereof convicted in any court within this State having jurisdiction thereof, such person or persons shall be adjudged guilty of felony, and shall be fined any sum not less than twenty nor more than one thousand dollars, and shall be imprisoned not less than six, nor more than eighteen months, and moreover, shall receive on his, her or their bare back, not less than ten, nor more than twenty-five stripes."

in

The statute just quoted is quite as comprehensive as is section 40 of chapter 23 of the Acts of 1829; the latter being a mere condensation of the former. Irrespective of this, this court has repeatedly held that our statutory defi nition of forgery (chapter 23 of the Acts of 1829) is the

Austin v. State.

same as the common-law definition. Waltson v. State, 6 Yerg., 384; State v. Smith, 8 Yerg., 150; State v. Humphreys, 10 Humph., 443; State v. Corley, 4 Baxt., 410; Garner v. State, 5 Lea, 215; Chism v. Bank, 96 Tenn., 651, 36 S. W., 387, 32 L. R. A., 778, 54 Am. St. Rep., 863; Welhl v. Robertson, 97 Tenn., 466, 37 S. W., 274, 39 L. R. A., 423.

We are therefore of the opinion that the decision in Hill v. State, supra, is just as effective as if it had been decided subsequent to the act of 1829.

It was stated hereinabove that we had a statute dealing expressly with a case of this character. We had reference to section 6568 of Thompson's Shannon's Code, which is as follows:

"Fraudulent Pretense.-Every person, who, by any false pretense, or by any false token or counterfeit letter, with intent to defraud another, obtains from any person any personal property, or the signature of any person to any written instrument the false making of which is forgery, shall, on conviction, be imprisoned in the penitentiary not less than three nor more than ten years."

The original false pretense statutes did not contain any provision as to procuring the signature of a person to any instrument by false pretense, etc. This was added by the annotators of the Code of 1858, and was likely done to meet a case of this character; the codifiers having in mind the decision of this court in Hill v. State, supra.

In Wallace v. State, 2 Lea, 29, this court applied this provision of the act to the defendant, and held him guilty for the reason that he procured the prosecutor to indorse a draft by false pretense.

Austin v. State.

The trial judge, in charging the jury as to the first count in the indictment, set out the foregoing false pretense statute in full, and perhaps made his charge fuller and laid more emphasis upon this than any other count in the indictment.

Able counsel for the State in his brief, in referring to the above statutes, says:

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"But, when we come to apply the paper writing in question to the false pretense statute, it would appear that this statute was enacted to cover just such cases as the one at bar."

To this statement we quite agree, but counsel seems to have overlooked the fact that the jury returned a verdict of not guilty as to this count.

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With the verdict of not guilty as to the first count, and the court being of the opinion that the defendants were not guilty under the fourth count, it necessarily results that the second and third counts are ineffectual upon which to predicate a verdict of guilty, and no insistence to this effect has been made in the brief of the State, or by counsel in presenting the case at the bar, and hence we will give these matters no further consideration. An endeavor has been made to draw a distinction between the case under consideration and the case of Hill v. State, supra, in that the instrument in the latter case was prepared by the defendant at the request of the prosecutor, but written differently from instructions, while in the instant case the defendant Yeaman was not called upon to prepare any instrument.

Austin v. State.

No direct authority is cited in support of this insistence, and this appears to us to be a distinction unsupported by The gravamen of the offense is procuring the signature of another with intent to defraud by false pretense, which this court has said is not forgery.

reason.

The paper, without a signature thereto, was harmless, and we are unable to appreciate the distinction which counsel undertake to make.

For the reasons stated above, we feel constrained to reverse the trial court, and to order the defendant Austin discharged.