The opinion of the court was delivered by
Manning, C. J.The defendant, having been convicted of the crime *558hereinafter set forth, was sentenced to two years’ confinement in the Penitentiary, from which he has appealed.
The offence charged in the information is, that he did falsely and feloniously utter and publish as true a certain altered, false, forged and counterfeited public record, to wit: The returns from the parish of Yernon of an election held for Presidential electors, in the State of Louisiana, on the seventh day of November, 1876, as shewn by the original returns of said election made by the supervisor of election for the parish of Yernon, knowing the same to be false, altered, forged and counterfeited, with intent to injure and defraud, etc.
The case comes up upon numerous bills of exception and an assignment of errors. We shall confine our examination to such of them only as are necessary to the decision of the issue presented to us.
The prosecution was commenced by an information filed by the District Attorney for the parish of Orleans, and it is objected on behalf of the prisoner that the filing of an information is not allowable, because— first, there has never been a preliminary examination of any specific charge against him, and that he did not waive such examination, and has not had an opportunity of meeting the witnesses against him and of cross-examining them; second, there has not been any finding by an examining officer that the offence charged has been committed, nor any adjudication by such officer, that the prisoner was guilty thereof; third, the information filed is a flagrant violation of section 1010 Bevised Statutes of 1870.
That section merely provides how preliminary examinations before committing magistrates shall be conducted, and is much the same as the statute of other States upon that subject.
The objections are not well founded. It has never been supposed that a preliminary examination by a committing magistrate was an indispensable precursor to a prosecution either by indictment or information. One of the counsel for the prisoner argued orally a very different objection, viz.: that, as our criminal mode of procedure was as at common law, and informations could not be filed without leave of the Queen’s Bench, which was granted only upon proper affidavits, therefore an information can not be filed here unless a similar course is pursued.
In England there are two classes of informations — government informations, and those emanating from private individuals. There is no local officer there whose duties are the same as those of district attorneys in the States of this country, or solicitors, as they are called in some of them. That office is the creation of the American system. The Attorney General of England filed informations on behalf of the government ex officio, but others were filed at the instigation of private indi*559victuals, and by counsel on their behalf, and though the prosecution is in the name of the sovereign, those individuals who provoked it were mulcted in costs if it failed. By' the common law it was in the power of any individual to file an information without disclosing to the court the grounds on which it was exhibited. 1 Chitty Crim. Law, 856. The frequent exercise of this 'power by private individuals from motives of malice or private revenge provoked the statute 1 and 5 W.'and M., by which private individuals were henceforth prohibited from filing informations without the consent of the King’s Bench.
There was a reason, therefore, fdr requiring in England an information to be supported by affidavits before permission to file it would be given, that does not exist here. No one can file an information here but the law officer. The public prosecutor, by-whatever designation he may be known, is the only person who can initiate a criminal proceeding in that way, and as he is acting under the sanction and responsibility of his office, the same restrictions are not imposed upon him as were wisely imposed by the statute of William and Mary, which changed the common law on that subject..
If the Attorney General of England were now to offer to file an information in the Court of Queen’s Bench, he would not be required to accompany it with affidavits; while, if offered by a private person, through his counsel (for he can not do it in person), the court requires to be informed aliunde if there is reasonable ground for it. 1 Chitty C. L. 859. Nevertheless, our statute still requires that the consent of the court shall first be obtained, and in practice (here at least) it is granted as a matter of course.
z Every constitution of this State has contained the provision that prosecutions shall be by indictment or information. Our statute restricts the latter to offences not capital, and requires the consent of the court to be first obtained; but that being done, and there is no -mode prescribed for obtaining it, the prosecution by information has never been doubted to be of equal validity under our law with that of indictment for any offence not capital. It was very early held here that the amendment to the Federal constitution, which requires the intervention of a grand jury, relates only to crimes cognizable by the United States courts, and to criminal proceedings in those courts. Territory vs. Hat-tick, 2 Mart. 88. And in 1859 a case was brought up wherein the Grand Jury had ignored a bill for manslaughter, and immediately thereafter, on the same day, the district attorney filed an information charging the defendant with that offence. A motion to quash, on the ground that the Grand Jury had ignored a bill against the same party for the same offence, was sustained by the lower court, and the State appealed. Held, that the State was not barred from proceeding by *560information, notwithstanding the Grand Jury had ignored the indictment. State vs. Ross, 14 Annual, 304. It may be doubted if that is-not going too far, and we should probably not have ruled thus if the point had been presented to us, but the ruling is cited merely to shew to what extent the practice of prosecuting criminally by information has been sanctioned.
There was no reason why a practice thus sanctioned, and uninterruptedly prevailing in our courts from their organization, should not have been adopted in initiating this prosecution, but we are informed at-the bar by the Attorney General, that the Grand Jury, in place of finding a bill, instructed the prosecuting officer to file an information, thus-giving its sanction to this prosecution, and forbearing to initiate it by indictment, solely because of some apprehended defect or want of power to act after the time had elapsed for which the jury was summoned.
" The prisoner challenged the venire, on the ground that the selection of jurors by commissioners appointed by the judges, as directed by the act of 1877, is illegal, the constitution having prohibited that any duties- or functions other than judicial shall ever be attached by law to the courts. The act provides that the judges of five courts of Orleans parish shall select two jury commissioners, who in their turn shall select, Impartially, not less than one thousand competent men as jurors from the citizens of the parish, having the qualifications requisite to register . as voters. Acts p. 73. Experience has demonstrated the necessity of some law to protect the administration of justice from the evil effects of a system which had so far departed from the old landmarks as to admit every man into the jury-box who could use the ballot. This evil was apparent years ago, when ignorant or vicious white men only were intrusted with this privilege, .and it was immeasurably augmented by the changes that have since occurred, by which the number of improper persons, eligible to this grave duty, has been multiplied. The Congress of the United States found a solution of the pressing difficulty by providing for the appointment by the judge of commissioners to select a given number of jurors, and our Legislature wisely acted on that hint, and copied the enactment. It seems to us a function peculiarly appertaining to the judge of a court, and when we remember that the same Constitution'which confines the Supremo and District Courts to the exercise of judicial duties, confers upon the former the power to select its own clerk, it is apparent that an act of the Legislature, conferring upon the latter the powor to select jury commissioners, to make up a body from which the jurors of their courts are to be drawn, is not in contravention of its prohibition of the performance of other duties than those which are judicial. And that this power has not been exercised in the spirit of the law, and for the public good, is not pretended.,
*561We have said thus much upon those points of the defence which affect particularly the constitution of the tribunal, and the kind of proceeding by and through which the trial was had, to the end that the rightfulness of the one and the legality of the other may be vindicated. We now turn to the investigation of some of the alleged defects which the prisoner claims vitiate the prosecution, and here it is necessary to state succinctly the requirements o£ the statute touching elections, in order to understand the nature of the objections.
Three commissioners are appointed for each poll, whose duty is to count the votes immediately upon its close; to make duplicate lists of them, with very minute specifications of certain details, and deliver one of them to the supervisor of registration of the parish and the other to the clerk of the District Court. The supervisor of registration within twenty-four hours thereafter, must consolidate such returns, to be certified as correct by the clerk of the District Court, and he must forward the consolidated returns, with the originals received by him, to the returning officers. These officers, known in common parlance as the Returning Board, must meet in New Orleans within ten days after the closing of the election, and canvass and compile the statement of votes made by the commissioners of election. The presiding officer (of this board) shall open in the presence of its members the statements of the commissioners of election, and-they shall from said statepients canvass and compile the returns of the election in duplicate, deposit one in the office of the Secretary of State, and make public proclamation of the other by printing in the official journal. Acts 1873, p. 15. The act was approved November 20, 1872.
The offence charged in the information is uttering and publishing as true a certain altered public record, to wit: the returns from the parish of Yernon, as shewn by the original returns of said election made by the supervisor of election.
When the State offered in evidence the alleged public record, the defendant objected on the ground that it did not conform to the description contained in the information; or, in other words, that it was not the record for the uttering and publishing of which, altered and forged, he was criminally charged. Thereupon the State moved to amend by striking out the words “ original returns,” and inserting “ consolidated statement of votes, parish of Yernon,” in lieu thereof, and by striking out the words “supervisor of election,” and inserting- in their stead “supervisor of registration.”
The amendment was permitted, and the trial proceeded on the information as amended, and a bill was reserved. We do not propose' to consider the right to amend because the situation of the accused,, though changed, was improved by the substitution and his chances of *562escape increased. The document was again offered in evidence under the amendment and received.
Whenever forgery of an instrument, or the uttering of a forged instrument is charged, and the instrument has a legal definition and meaning — that is to say, has certain characteristics or qualities imparted to it by law — it is not needful to set it forth in the information with minute precision, because the general or legal term by which it is known sufficiently designates the kind of instrument meant. Thus, a bond or a will is an instrument known to the law, and the law dictates what shall be known and held to be a bond or a will. But when a statute provides for an instrument, not known to the law hitherto, or in other words, creates it and impresses upon it certain features peculiar to itself, forgery can not be committed by making a false statutory one in a form not provided by the statute, even though it be so like the genuine one as to deceive most persons, and the uttering of such false and altered instrument would not be punishable. 2 Bishop Crim. Law, sec. 506.
Under our statute it is only necessary to set out the purport of any instrument, or to designate it by name, if it is usually known by one, in' an indictment for forging, uttering, etc. Rev. Stats., 1870, sec. 1049. But in order to be forgery, the instrument thus set out and charged to be feloniously made, must be of such character that, if genuine, it would be evidence of the fact it recites. The instrument must be such that when forged, it does or may tend to prejudice the rights of another, or, as put by Bishop, it must either appear on its face to be, or it must in fact be, one which, if true, would be legally capable of effecting a fraud, 2 Bish. C. L. secs. 503, 511; State vs. Smith, 8 Yerg. 150; Barnum vs. State, 15 Ohio 717; State vs. Snow, not yet reported.
The instrument charged in the amended information as having been falsely uttered, is the “ consolidated statement of votes, parish of Yornon, made by the supervisor of registration.” The statute nowhere gives to this consolidated statement any efficacy or value as evidence of the result of the election, nor does it anywhere direct or permit it to be used as a means of ascertaining such result. The returning officers are not required to use it. The instrument or documents they are required to canvass are the original returns of the commissioners, and from them, and them alone, they must compile the vote. The preservation of this “consolidated statement” of the “supervisor of registration” among the archives of either parish or State is not commanded. The clerk of court is not' furnished with a duplicate, as he is of the commissioners’ returns. Thei’e is no officer who is authorized by law to give a certified copy of it for use as evidence, or for any other use. The clerk is directed to certify it as correct, and this appears to have been required so- that it may be known to conform to the duplicate list of commis*563sioners’ returns in his office; and after it is so certified, the supervisor transmits it to the returning officers along with the original returns sent him by the commissioners, and from the latter alone they compile the vote.
If the supervisors of registration of. every parish in the State should alter and forge every consolidated statement of votes made by each one respectively, and transmit them thus altered and forged, to the return ing officers, and these officers should canvass and compile the votes, as the statute requires, not from these consolidated statements, but from the unaltered commissioners’ returns, no injury would be suffered by any individual or by'the body politic. The'supervisors’ consolidated statement is not made by the statute the basis of the final canvass and compilation of the vote, as the original returns of the commissioners are, and hence the alteration and forgery of all of them, the returns of the commissioners remaining unaltered, would not change the result of the election in any parish. To constitute forgery, the forged instrument must be one which, if genuine, may injure another, and this must appeal’, either from the description of the instrument, or by the averment of matter aliunde. Where, from aught that appears in the information, the instrument was a nudum pactum, or of no effect, forgery can not be predicated upon it. People vs. Tomlinson, 35 Cal., 503. And the same principle, of course, applies to the uttering of a forged instrument.
It is unnecessary for us to say whether the consolidated returns of the supervisor of registration, without the clerk’s certificate, is or is not a public record, susceptible of forgery. It is sufficient to remark that the paper offered in evidence is not the instrument, the utterance of which as forged is charged upon the defendant in either the original or amended information.
After conviction a motion in arrest of judgment was made, because it was not charged in the information, either in its original form, or as amended, that the uttering or publishing the alleged altered and forged instrument was done by the defendant in any official capacity, either as one of the returning officers, or in any capacity other than as an individual, and that such offence could only have been committed in an official •capacity to operate an injury to, or fraud upon any person or body politic.
It is manifest that the uttering and publishing by a private ■person, or by a person in any public capacity other than that of returning officer of elections, could not have injured or defrauded any one. Suppose that four presidents of as many banks in this city had uttered and published as true, altered and forged consolidated statements of votes of any parish at an election, as made *564by the supervisor of registration, and had caused the same to be printed in the official journal under their signatures as presidents of the-banks, would they have been indictable therefor under the statute? And why not ? Simply because they had no legal mission or authority to do that act, and as no legal , effect would be produced by it, no one would be injured or defrauded by it. Every one is presumed to know the law, and therefore to know that the persons, thus uttering and publishing, were without authority to do that particular act, and that it was void, and of no effect when done. Hence it is of the essence of this crime, that it should have been committed by a public officer,'whose function was to prepare and publish the true canvass and compilation of votes, and the averment that he uttered and published the false canvass and compilation in his official capacity, and under color of his office, is essential in an information to support a conviction, and justify a judgment thereon. The information has not such averment.
The charge of the judge below, which is admirable in its judicial tone and temper, though, as we have seen, erroneous on the questions-of law we have reviewed, proceeds throughout on the idea or assumption that the act charged in the information as criminal was done in the defendant’s official capacity. Even the instructions asked by the defendant’s counsel are based on that idea. It was nowhere so charged.
It is not needful to say more for the decision of this cause, nor were we inclined to advert to any of its features, other than those directly presented by the record, but we are driven from this reticent attitude by having spread before us in the printed argument of some of the defendant’s counsel an open letter, dated “Washington, February 4, 1878,” addressed to the prisoner, and signed by John Sherman, Stanley Matthews and others, in which the public, and the people from which the jurors are to be drawn for his trial, is informed tiiat he is falsely accused and maliciously persecuted.
A few years ago — it was within the present decade — a member of the British Parliament undertook to influence the course of a public prosecution, then pending in an English court, against a fraudulent claimant of the honors and estates of an ancient house. The criminal trial there, as here, had been preceded by a civil proceeding, and both were of unexampled duration, so that the question, who was the rightful heir of the Tichborne family, had extended beyond the legal circle, and had invaded social and political life.
When the unwarrantable publication had been made by the member of Parliament under his own signature, in which he had endeavored to bring opprobrium upon the court and its officers by charging that the claimant was falsely accused and maliciously prosecuted, the Lord . Chief Justice Cockburn promptly repressed his impertinent, though not *565interested, zeal by inflicting upon him a fine of £250, and sentenced him, in default of payment, to imprisonment in the county jail.
He.went to jail, and there remained until a relative released him by paying his fine. On the re-assembling of Parliament at its next session, the judge formally communicated his action to the House of Commons, that it might be officially known he had not wantonly invaded its privileges, and that body, ever watchful over the inviolability of those privileges, silently approved the judge’s vindication of thesanctity of his court.
Public opinion, in this instance and in this country, can alone exercise that punitive power, the employment of which is equally well merited on both occasions.
It is ordered, adjudged and decreed, that the judgment and sentence of the lower court is avoided and reversed, that the verdict of the jury is set aside, and that the prisoner be discharged from custody.