The opinion of the Court was delivered by
Hutchinson, J.This is an indictment consisting of five counts, each attempting to charge a forgery under our statute, page 256 of the new compilation. Some counts treat it as the forgery of a note; some as the forgery of an endorsement upon a note. Each concludes contra formam statuti.
It is to be inferred from all the counts, that the act intended to be punished, was the cutting from a note of sixty dollars, a part of the paper on which was written an endorsement of twenty dollars, and then treating the note as if the whole sixty dollars were yet due.
To the whole indictment the respondent has demurred.
The briefs and arguments on the part of the respondent, aim to evince, that the act complained of in the several counts is not forgery within the statute. And of this opinion are the Court. Nothing must be construed to be within a penal statute, but what is fairly within it. The section of the statute which is relied upon for the support of this indictment, is composed of *314particulars, in its description of the offence, and the case before us is not among those particulars. It is a case omitted. That which is called a note, in the statute, can only mean all that which, connected together, composes the promise or liability from the payor to the payee; and the making or altering any material part of this is termed forgery by the statute. The words assignment or endorsement in the statute, are used as synonymous, and mean a transfer. But if they meant an endorsement of payment, still it is the making or altering them that constitutes forgery. So of the expressions acquittance or receipt for money or other thing, if they would comprehend the endorsement of payment; still it is the making or altering the same that constitutes forgery. The severing such endorsement already made, is a different act. It leaves the indorsement legible, consisting of the same words and letters as before severed. In short, it is not one of those acts pointed out in the. statute-to be punished as forgery. But this same act is as great a crime against pub-lick justice, and the publick peace, as those forgeries that are clearly within the statute. It is as great a crime in Joro conscientice. It is an act mala in se. It is a crime at common law. The contraformam statuti may be treated as surplusage throughout the indictment, and it will remain a good indictment for a misdemeanor at commonlaw. See 1 st of Chitty’s Criminal Law, y'. 23~8 — 290i/i marginal page. Were the act complained of an offence only as made such by statute, this indictment could not be supported upon the above principle. But this principle applies to all offences against government, against publicli justice, or acts of extortion, &c.
Isaac Fletcher, states’ attorney. Ephraim Paddock, for the respondent.Let judgment be entered, that the indictment is sufficient as an indictment for a misdemeanor at common law.
N. B. The respondent has since been tried upon this indictment, as for an offence at common law, and convicted, and sentenced to pay a fine and costs.