¶2Defendant was indicted for falsely and feloniously uttering and publishing as true, to one Allen, August 21st, 1870, a certain false, forged and counterfeit promissory note dated August 21st, 1870, with intent to injure and defraud said Allen, he the said defendant well knowing the same to be false, forged and counterfeited. There was no revenue stamp upon the note, and under ch. 76, Laws 1870, a report of the case is certified to this court for our opinion upon the question whether the absence of such stamp is fatal to the prosecution.
¶3We think not. If the making of the instrument in question is forgery, then the uttering and publishing of it is the uttering and publishing of a forged instrument, in contemplation of law, and an indictable offense.
¶4“ Forgery is the fraudulent making of a false writing, which, if genuine, would be apparently of some legal efficacy,” 2 Bishop's Cr. Law sec. 495, and note 4. 2 Archbold Cr. Pr. and Pl. 552. The inquiry then is, would the note in this case, if genuine, have been upon its face apparently of some legal efficacy? If it would, then as it would have a legal tendency to effect the fraud against which the statutes of forgery, and uttering and publishing forged paper are directed, the forgery, as well as the uttering and publishing of the same, would properly be indictable.
¶5By the congressional act of July 13th, 1866, upon the subject of internal revenue, it is enacted, that a promissory note made, issued or negotiated with intent to evade the provisions of the act, and “ not being stamped according to law, shall be deemed invalid and of no effect.” If the act stopped here, it might well be as contended by the defendant’s counsel, and as appears to be held in John vs. The State, 23 Wis. 504, that the note being invalid upon its *474face, and therefore having no tendency to effect a fraud, could not be the subject of forgery. But the enactment referred to is subject to provisos, under which any party having an interest in such note, may have the proper stamp affixed to it, so that it shall be as valid to all intents and purposes as if stamped when made or issued. Then the promissory note in this case, if genuine, notwithstanding it was not originally stamped, might have been subsequently stamped at the instance of the owner of it, so as to make it as valid as if stamped when it was made or issued. It follows, that if it .bad been genuine, it would upon the face of it apparently have possessed a legal efficacy. And the fraudulent making of a promissory note, which, if genuine, would apparently possess some legal efficacy, being forgery, the uttering and publishing of such note is the uttering and publishing of a forged note, and as before remarked an indictable offense. Gen. St. oh. 96, seo. 2.
¶6In our opinion, therefore, the motion to quash the indictment, and dismiss the action on account of the want of a revenue stamp upon the note, should be denied.