delivered the opinion of the Court:
Plaintiff in error was indicted at the October term, 1879, of the Henry circuit court, for forgery. The indictment contained four counts. The State’s attorney entered a nolle prosequi to the third and fourth, and on a trial defendant was convicted on the first count, and his confinement in the penitentiary was fixed at three years. A motion for a new trial was entered but overruled, and judgment rendered on the verdict. And the record is brought to this court, and various errors are assigned.
On the trial in the court below a number of exceptions were taken to the rulings of the court. And it‘is urged that the court erred in admitting evidence against the accused and in giving instructions; also, in refusing instructions asked on behalf of the accused, and because the State’s attorney went outside of the evidence of the case to the prejudice of accused, in his argument before the jury. There are others assigned, but they are either embraced in these or are such as need not now be discussed.
It is urged that the intent to defraud being properly averred in the indictment, it was indispensably necessary to prove it as laid. And it was error to permit evidence of what accused said of another and different note, the existence of which was not shown, much less was the note produced. The intention to injure or defraud the person as averred must be proved, but that is usually done by showing that the forged instrument was uttered.
The statements of a defendant as to other instruments of the same kind, supposed to have been uttered by him, are not admissible in evidence. Regina v. Cooke, 8 C. and P. 582.
This seems to be conclusive of this question. Evidence of admissions or statements in reference to the note for the forgery of which he was being prosecuted was admissible, but what he said of another note was no.t admissible to prove the charge on which he was being tried. When a person is indicted on a charge of passing counterfeit bank bills, proof that he had previously passed similar bills is admissible to prove guilty knowledge, but the proof of the existence of such bills is required.
The fifth of the people’s instructions is wrong in referring to the' statements of accused in reference to a $135 note on the prosecuting witness. The evidence being improper it was equally improper to refer to his statements in the instructions.
It is claimed that the intent to defraud being averred, it must be proved as averred, and that the court took that question from the jury by the people’s third instruction, which is:
“That if you believe from the evidence, beyond a reasonable doubt, that the defendant actually forged the note offered in evidence herein, then the law will presume it was to defraud, and done with an intent to cheat and defraud, as charged in the first and second counts of the indictment, even if the evidence does show that defendant had taken a genuine note of Dwyer for said sum of $35, upon which Dwyer was liable.”
It was for the jury to determine from the evidence before them whether there was an intention of defrauding Dwyer, as averred in the indictment. This they were to determine from all the evidence, direct and circumstantial. It may be the possession, with the attending circumstances, proved the intent, yet it may be attending circumstances would clearly repel or disprove the presumption. But this instruction informs the jury that if the accused actually forged the note, then the law presumes the intent to defraud as charged in the indictment. To constitute the crime of forgery it is necessary that the instrument shall be falsely made, altered, etc., with intent to prejudice, damage or defraud any person, etc. Rev. Stat. 1874, p. 367, sec. 105. Thus it is seen that it must be not only falsely made, uttered, etc., but it must be with intent to prejudice, damage or defraud some person, etc. The merely falsely making the instrument, without the intention named, does not constitute the crime.
It has been defined by law writers as “a false making; a making malo animo of any written instrument for the purpose of fraud and deceit.” One of the accepted meanings of the word forge, is to falsely make, without any regard to the intent. If the jury so understood it in this case, it may have, and probably did, prejudice the accused. The instruction should have left it to the jury to find the intent. The mere making and possession do not necessarily prove an intent to defraud. Rex v. Shukard, Russ. and Ry. 200. That is clearly shown when the forged instrument is uttered, or it may be inferred from circumstances. But mere making and possession is evidence, it is true, but it can not be said, as a legal proposition, that it proves a fraudulent intent. The instruction should have left it to the jury to say whether, with the attendant circumstances, the intent was proved.
The fourth instruction is not fair to the prisoner. It assumes to tell the jury what weight they should give to his supposed flight. That was for the consideration of the jury, and not of the court. The court should not have said to them that it was evidence of guilt. It is only evidence tending to prove guilt. Mor should the instruction have stated that if flight was proved, it must be satisfactorily explained consistently with the innocence of the accused.
From this the jury would understand that if flight was proved, it must be proved, beyond doubt, that it was for an innocent purpose. Several of the people’s instructions are argumentative and single out isolated facts and give to them undue prominence, which is frequently unfair and highly prejudicial to the accused.
It is urged that the court erred in refusing a portion of defendant’s instructions. After, a careful examination of the entire series, we think there was no error in this. The court gave for the defence thirteen instructions, some of them varying what was stated in others which were given. Those that were given embraced all that was proper in those that were refused.
The fifteenth states the rule of evidence as to good character incorrectly. The court has no right to determine, as this instruction does, that proof of good character constitutes a complete defence. That is a question for the jury, and not for the court. They have the right to consider all of the evidence and find the facts.
The sixteenth instruction may contain a legal proposition, but as it is drawn it might have misled the jury, had it been given. The jury might have understood it as informing them as a fact that he had established a good character, and no further proof was necessary. Had it stated that the fact that he introduced no further evidence on that question should in no wise operate to his prejudice, it would have been unexceptionable.
It--is complained that the State’s attorney was unfair in his closing argument to the jury; that he assumed facts that were not proved and urged them for a conviction. It is the duty of the circuit court in such cases to stop counsel and effectually prevent such unfairness when attempted. Its duty is in all cases, and emphatically so when life or liberty is involved, to prevent such unfair conduct on the part of counsel. It can not be sanctioned to permit the people’s attorney to thus treat the accused, who is restrained of his liberty, and is helpless unless protected by the court. Nor is it the duty of the State’s attorney to urge an unwarranted conviction, or resort to unfair means to procure one, when he believes there is no guilt. The prisoner should in all cases be treated with fairness, and it is the duty of the court to see that this right is not infringed.
Complaints of this character are beginning to be brought before us, and what is here said refers more to the rule of practice that should obtain in all eases than with reference to this case. But in this case we are of opinion that a portion of the argument on the part of the people was not fully warranted by the evidence. It may be that the objectionable portions are not of such a character as would alone justify a reversal. But when the unfairness is gross it would be our duty in all doubtful cases to reverse alone for that reason.
. For the errors indicated the judgment of the court below is reversed and the cause remanded.
Judgment reversed.