that evidence tending to show that the instrument forged could not hurt any one is competent evidence for the defendant.129 But if the accused altered the instrument with intent to defraud, and it was capable of having that effect, it is no defense that the alterations were plain and that no special attempt was made to conceal them.130 Nor does the fact that the person whose name is forged was indebted to the defendant justify the forgery. 131 And lack of vigilance on the part of the one defrauded will not excuse the accused. 182 So, the fact that the accused intended to repay the party defrauded, or did repay him, is not a good defense.138

§ 2997. Weight and sufficiency of evidence.-Evidence is sufficient to sustain a charge of uttering forged paper when there is proof that the paper, capable of defrauding, was delivered to one for value by the defendant, knowing it to be false, and with an intent to pass it as a valid subsisting instrument, or it was used, under such circumstances, to obtain money or credit.184 But there must appear to have been in effect a statement or representation by word or conduct, that the signature was valid and the instrument genuine.135 The mere possession of a false instrument is not sufficient proof of the crime in the absence of a guilty intent or knowledge.136 But possession of a forged instrument in favor of the person holding it

supposed he had. State v. Taylor, 46 La. Ann. 1332, 16 So. 190.

12 Barnum v. State, 15 Ohio 717, 45 Am. Dec. 601; see also, Roode v. State, 5 Neb. 174; Terry v. Commonwealth, 87 Va. 672, 13 S. E. 104.

130 Rohr v. State, 60 N. J. L. 576, 38 Atl. 673; see also, State v. Robinson, 16 N. J. L. 507, 510. Nor is similarity in name a good defense in such a case. People v. Rushing, 130 Cal. 449, 62 Pac. 742; Barfield v. State, 29 Ga. 127, 74 Am. Dec. 49; People v. Peacock, 6 Cow. (N. Y.) 72.

188 Commonwealth v. Henry, 118 Mass. 460; Green v. State, 36 Tex. Cr. App. 109, 35 S. W. 971; Reg. v. Beard, 8 Car. & P. 143. Nor is ratification. Howell v. McCrie, 36 Kans. 636, 14 Pac. 247; State v. Tull, 119 Mo. 421, 24 S. W. 1010; Countee v. State, (Tex. Cr. App.) 33 S. W. 127.

134 Thurmond v. State, 25 Tex. App. 366, 8 S. W. 473; State v. Redstrake, 39 N. J. L. 365; People v. Ah Woo, 28 Cal. 205; People v. Rathbun, 21 Wend. (N. Y.) 509.

185 Folden v. State, 13 Neb. 328, 14

11 Curtis v. State, 118 Ala. 125, 24 N. W. 412; People v. Brigham, 2 So. 111.

132 United States v. Turner, 7 Pet. (U. S.) 132; Commonwealth v. Foster, 114 Mass. 311, 19 Am. R. 353; Garmire v. State, 104 Ind. 444, 4 N. E. 54; Lawless v. State, 114 Wis. 189, 89 N. W. 891.

VOL. 4 ELILOTT Ev.-18

Mich. 550; Couch v. State, 28 Ga. 367.

has been sufficient to raise a presumption that he forged it or caused it to be forged.137 And when one passes a forged instrument, representing himself to be the payee, such representation is sufficient without other evidence to indicate a knowledge of the forgery. 138 The possession of forged writings, or the passing of them in the county where the indictment was found, is considered of great weight as tending to show that the forgery was committed in that county.139 And some jurisdictions hold that proof of venue in a prosecution for forgery is sufficient if it appears that the offer to pass the forged instrument by the accused, with full knowledge of its character, was made in the parish or county where the charge is brought, though it did not purport on its face to have been executed in such parish or county.140 Where the defendant, in an action on an insurance policy, claimed that the plaintiff was not the owner of the premises on which the burned buildings were located, and plaintiff claimed title through a deed from his wife made in a certain year, and there was evidence that the printed blank on which the deed was written was not printed until four years later, and that his wife died in the year he claimed the deed was made, it was held that the finding that the deed was a forgery was properly supported.141 It is generally held that the accused may commit a forgery by procuring another to do the writing.142 And where one was present, knowing of and asserting to the commission of a forgery, of which he was to derive the benefit, it was held that the jury might infer that it was done by his procurement.143 But evidence showing that the accused acted for another, although the authority so to act was falsely and fraudulently assumed, is of itself insufficient to establish a forgery by the accused.1 144 There is sufficient evidence of intent to defraud by the

137 Hobbs v. State, 75 Ala. 1; Com- 293; see also authorities cited in last monwealth V. Talbot, 2 Allen note, supra. (Mass.) 161; State v. Britt, 3 Dev. L. (N. Car.) 122.

138 State v. Beasley, 84 Iowa 83, 50 N. W. 570.

130 State v. Rucker, 93 Mo. 88, 5 S. W. 609; Spencer v. Commonwealth, 2 Leigh (Va.) 751; Bland v. People, 4 Ill. 364; State v. Poindexter, 23 W. Va. 805; but see, Commonwealth v. Parmenter, 5 Pick. (Mass.) 279.

140 State v. Morgan, 35 La. Ann.

141 Ryan v. Rockford Ins. Co., 85 Wis. 573, 55 N. W. 1025.

142 Commonwealth v. Foster, 114 Mass. 311, 19 Am. R. 353; Koch v. State, 115 Ala. 99, 22 So. 471.

143 Commonwealth v. Stevens, 10 Mass. 181.

144 Commonwealth v. Baldwin, 11 Gray (Mass.) 197; Mann v. People, 15 Hun (N. Y.) 155; People v. Bendit, 111 Cal. 274, 43 Pac. 901; Kegg

defendant where an instrument in question was forged and was made payable to him and he indorsed it.145 But where all the evidence. against the accused was given by an expert on handwriting, who by a comparison with the genuine writing of the accused stated that in his opinion the face of the check was written by the accused, it was held that such testimony was not sufficient to sustain a conviction, even if the words, "face of the check" included the signature.146 A charge of an intent to defraud generally is sustained by proof that the name signed to the forged instrument was that of a fictitious person.147 On a prosecution for having in possession, with intent to pass them, bank notes purporting to have been issued by a foreign banking corporation, proof of a general character of the existence of the bank is sufficient and it is not necessary to put the original charter in evidence or to produce the law under which the bank is incorporated, but it may be shown by parol evidence.148 Proof of the crime is sufficient without any proof as to actual damages.149 As already shown, the credibility of witnesses is for the jury and it is for the jury to weigh the evidence. But the jury must, of course, have some sufficient legal evidence to act on before a verdict of guilty can be sustained. It is held that the interest of an obligor on a forged instrument may be shown to affect the credibility of his testimony.150

§ 2998. Variance.-The general rule is that the proof as to the contents and description of the instrument forged must correspond in material respects to the description given in the indictment, and while a slight variance is not always fatal and something may depend

v. State, 10 Ohio 75; State v. Millner, 131 Mo. 432, 33 S. W. 15.

145 Timmons v. State, 80 Ga. 216, 4

S. E. 766.

149

People v. Fitch, 1 Wend. (N. Y.) 198, 19 Am. Dec. 477; Commonwealth v. Ladd, 15 Mass. 526; Arnold v. Cost, 3 Gill & J. (Md.) 219,

1 People v. Mitchell, 92 Cal. 590, 22 Am. Dec. 302; People v. Brigham, 27 Pac. 597.

2 Mich. 550; see also, Scott v. State,

147 Johnson v. State, 35 Tex. Cr. 40 Tex. Cr. App. 105, 48 S. W. 523; App. 271, 33 S. W. 231.

14s People v. Davis, 21 Wend. (N. Y.) 309; People v. Chadwick, 2 Park. Cr. Cas. (N. Y.) 163; People v. D'Argencour, 95 N. Y. 624; State v. Williams, 152 Mo. 115, 53 S. W. 424; see also, People v. Ah Sam, 41 Cal. 645; Commonwealth v. Carey, 2 Pick. (Mass.) 47.

State v. Duffield, 49 W. Va. 274, 38 S. E. 577, but it has been held error to admit such evidence. People v. Phillips, 70 Cal. 61, 11 Pac. 493; Arnold v. Cost, 3 Gill & J. (Md.) 219, 22 Am. Dec. 302.

upon the manner in which the instrument is pleaded in the indictment or information, yet if there is a material variance between the pleading and the proof in this respect it will generally be fatal.151 There is some conflict, however, as to what constitutes a material variance, and some of the courts have, perhaps, been too much inclined to hold a very slight variance material. Thus, it has been held that the misspelling of the alleged forged name as proved or reversing the order of names are material variances and are fatal when the writings were pleaded according to their tenor.152 So, also, omission of a final letter from the alleged forged name as proved has been held a material and fatal variance between the alleged forged writing as proved and as set forth in the indictment.158 So, likewise, has the omission of a single figure from the amount.154 Many cases, however, disregard such seemingly unimportant variances and hold the evidence sufficient notwithstanding such a variance appears. 155 So it has been held that the fact that the writing proved was acknowledged while that set out in the indictment was not, is not a material and fatal variance such as to make the proof insufficient.158 It has also been held that an allegation of an intent to defraud several persons is sustained by proving an intent to defraud any one of them.157

151 State v. Pease, 74 Ind. 263, and authorities cited in following notes.

152 Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248; McClellan v. State, 32 Ark. 609; State v. Woodrow, 56 Kan. 217, 42 Pac. 714; State v. Lane, 80 N. Car. 407; State v. Harrison, 69 N. Car. 143.

153 Burress v. Commonwealth, 27 Gratt. (Va.) 934.

325, 51 N. W. 755; State v. Gryder, 44 La. Ann. 962, 11 So. 573; State v. Lane, 80 N. Car. 407; State v. Davis, 69 N. Car. 313; Cross v. People, 47 Ill. 152; State v. Hastings, 53 N. H. 452; Agee v. State, 117 Ala. 169, 23 So. 486; Commonwealth v. Woods, 10 Gray (Mass.) 477.

156 People v. Baker, 100 Cal. 188, 34 Pac. 649; Lassiter v. State, 35 Tex.

14 Burress v. Commonwealth, 27 Cr. App. 540, 34 S. W. 751. Gratt. (Va.) 934.

165 Garmire v. State, 104 Ind. 444, 4 N. E. 54; Roush v. State, 34 Neb.

157 McDonnell v. State, 58 Ark. 242, 24 S. W. 105; see also, State v. Davis, 69 N. Car. 313.

§ 2999. Generally.-Gaming or gambling has been defined as "an unlawful agreement between two or more persons to risk money or property on a contest or chance of any kind where one must be the gainer and the other the loser." There is said to be a distinction between the terms "betting" and "gaming" the former being broader, and including the laying of a wager on any event, whereas the latter applies technically only to the paying of a wager upon some game.2 Gaming in itself, when not such as to constitute a nuisance, was not a crime at common law. But keeping a gaming house was indictable at common law, and there are statutes in many of the states making it a

1Hughes Cr. L. & Proc., § 2193; see also, Ansley v. State, 36 Ark. 67, 38 Am. R. 29; Portis v. State, 27 Ark. 360; State v. Shaw, 39 Minn. 153, 39 N. W. 305; Harrison v. State, 4 Coldw. (Tenn.) 198; Eubanks v. State, 3 Heisk. (Tenn.) 488, 490; Bell v. State, 5 Sneed (Tenn.) 507; "gaming is the act of persons who engage in playing a game for

stakes."

must be the loser and the other the gainer." State v. Grimes, 74 Minn. 257, 77 N. W. 4, 5. "But it has been held unnecessary that both parties should "stand to lose" as well as to win. Lang v. Merwin, (Me.) 59 Atl. 1021; Horner v. United States, 147 U. S. 449, 13 Sup. Ct. 409.

2 People v. Weithoff, 51 Mich. 203, 210, 16 N. W. 442, 47 Am. R. 557.

3 1 Abbott L. Dict. 529.

"Gambling is the risking of money or anything of value between two or more persons on a contest of chance of any kind, where one

Bell v. Norwich, 3 Dyer 254b; Sherbon v. Colebach, 2 Vent. 175; Greenhuff's Case, 2 Swinton 236; 1 Bishop Cr. Law, § 504; Bishop Stat. Cr., § 847.