Shirley v. State

1 Or. 269

• Court: Oregon Supreme Court
• Decided: December 15, 1859
• Status: Published

Opinion

This is a prosecution and conviction for forgery. The instrument, alleged in the indictment to have been forged, was a receipt, which was set out to be in the following words, to wit:

“ This is to certify, that William Shirley has this day paid me sixty-five dollars, on order of Starling Willis give me of sixty dollars.

(Signed,) Andrew Lineburger.”

The bill of exceptions shows, that on the trial of this cause, the prosecution offered in evidence the original receipt, alleged to have been forged, which was in the following words: “This is to certify, that William Shirley has this day paid me sixty five dollars, on a order of Starling Willis give me of sixty-five dollars.” To which the counsel for the prisoner objected, on the ground that the receipt offered in evidence varied from the copy set out in the indictment; but the court overruled the objection, and permitted the said receipt to be read to the jury; and to the admission of this evidence the counsel for the prisoner objected.

The question presented to this court is, was there a legal variance between the receipt, as described in the indictment, and the original receipt offered in evidence ?

The receipt, as set out in the indictment, purports to have been given to extinguish an order for the sum of sixty dollars. The receipt offered in evidence purports to have been given to extinguish an order for the sum of sixty-five dollars, which is an order of a different amount and denomination; and if the order for the sum of sixty-five dollars was sued, the receipt set out in the indictment would be no bar to its collection, for it is a well-settled rule, that in construing written instruments, every part operates by way of description of the whole; therefore, allegations of sums, names, dates, and the lite, must be proven as alleged. (1st Greenleaf on Ev. section 58.)

One of the essential features in the description of an order, or note, is the amount. A note for fifty dollars is a different instrument from a noteof sixty dollars.

It is as essentially different as a bant bill of the denomination'of five dollars is from one of the denomination of ten dollars; and, it is very clear, that a receipt given, declaring the payment and discharge of a note for fifty dollars, would not operate as a discharge of a note for sixty dollars.

We thint the variance fatal.

Judgment reversed.