The first count of the indictment charged the prisoner with having falsely made, forged and counterfeited a certain instrument in writing, commonly called a bank check, &c. The check was set out in the indictment in hcec verba, and upon the face of it were written the words and letters, “ Certified by Sparks, Bank J. 0.” The second count charged the felonious and false uttering of the same check as a certain false, forged and counterfeited instrument and writing, commonly called a bank check, and also contained a copy of the check.
Upon the trial the only writing shown to be forged was the writing across the face of the check. The proof showed there was no such clerk as Sparks in the bank on which the check was drawn.
The counsel for the prisoner, among other requests, asked the court to instruct the jury that the indictment did not charge the forgery of the certificate, which was no part of the check, and not essential to its validity, and created no demand or obligation for the payment of the money, and the prisoner could not be convicted under the indictment which charged only the forgery of the check.
• The prisoner was convicted.
Upon the argument, the counsel for the People conceded that the prisoner could not be convicted under the first count *346of the indictment which charged the forgery. Of this I think there can be no doubt. It will not be pretended that the words written across the face of the check were any part of the check, in any way necessary to give it validity or to add to its negotiability. They might have been given in a different form, and on a separate piece of paper, and would have left the check in its original form, valid and effectual for all the purposes for which it was made.
This writing can be considered as nothing more than a certificate that at its date the check would be paid by the bank on presentment.
The forgery of an acceptance on a bill of exchange is not properly described in an indictment which charges the forgery of the bill only.
The acceptance is no part of the bill of exchange. The bill is perfect without it. It can be protested, sued upon and collected, whether accepted in writing or not, and the forgery of the bill can be counted upon as an offense just as well, if not accepted, as if it had been previously accepted. This question has been the subject of direct adjudication in England, as applicable to a bill of exchange.
In Rex v. Howell (25 Com. Law R., 366; and 6 Car. & Payne, 148), it was held that a' count in an indictment, charging the uttering of a forged bill, was not supported by proof that the prisoner uttered the bill and that the acceptance was a forgery.
In this case, the question was reserved for all the judges, who agreed that the conviction for uttering the instrument was wrong, and could not be sustained. The whole theory of the criminal law renders the enforcement of such a rule necessary. In no pleading are so much certainty and particularity required as in an indictment. “ That certainty and precision (said. Edmonds, P. J., in Briggs v. The People, 8 Barb. R., 547) in an indictment is required, which will enable the defendant to judge whether the facts and circumstances stated constitute an indictable'offense; that he may know the nature of the offense against which he is to prepare his *347defense; that he may plead a conviction or acquittal in bar of another indictment, and that there may be no doubt as to the nature of the judgment to be given in case of conviction.”
It does not help the case to say that the indictment sets out the instrument in hcec verba, and therefore the prisoner was informed what the instrument was on which the prosecution rested. Suppose, in this case, the prisoner had uttered the check, not knowing of the forgery, or if the writing of the acceptance was a doubtful question, admitting of different opinions whether it was genuine or not, would a prisoner, under such an indictment, be led to prepare proof of the acceptance, or would he not rather confine his preparation to proof of the genuineness of the signature of the drawer? And when told on the trial the forgery is in the acceptance, he may well reply, no such charge is made against me, and I am not prepared to meet it.
I can see no ground for any distinction between forging the instrument and uttering the instrument knowing it to be forged. In both cases the prisoner is entitled to be told what his offense is, in such a manner that he may be prepared to meet the charge, and so clearly that, if. once tried and disposed of, the decision may be pleaded in bar of any other indictment. That could not be the case under the present indictment.
It is suggested that the decisions in England are based upon the statute, which distinguishes between a draft and an acceptance. Our statute distinguishes quite as much. It does not" specify an acceptance in any case, but after enumerating the terms of the offense, “falsely making, uttering, forging or counterfeiting,” applies it to any instrument or writing purporting to be the act of another, by. which any pecuniary demand or obligation shall be or purport to be created, &c. Here the check is the act of one party. The acceptance or certificate is the act of another party, each creating different obligations, and each valid in itself, and constituting a separate^ instrument. (3 R. S., 5th ed., p. 951, § 33.)
The judgment should be reversed, and a new trial ordered in the Sessions.