¶1thought that a variance in an unessential matter, such as a number, or mark, &c., which forms no part of the note would not be sufficient to exclude it from the jury.
¶2doubted, whether, as this was a prosecution under the eleventh section of the Penitentiary Act, it was necessary to set out the note in hcec verba, because that section makes no distinction between different kinds of papers, such as notes, receipts, bills of exchange, bonds, &e., and makes it equally penal to forge, &c. any paper writing, to the prejudice of the right of any person, with intent to defraud such person. He also observed that the prayer is too general; and does not provide for the exceptions, such as mere misspelling where it is idem sonans, &c.
¶3was of opinion that the note produced in evi-
¶4dence should correspond in words and figures with that set out under the averment, “ which note is as follows} ” and although the note, in this case, is lost, yet the jury must be satisfied that the note passed was such as is set out, and although it might not have been necessary to set out the marks and numbers appearing upon the face of the note yet, being set out, they ought to be proved as giving identity to the instrument.
¶5The Court, then, at the prayer of the defendant’s counsel, (Thruston, J., contra,) instructed the jury, that unless they should believe from the evidence that the note passed by the defendant was in fact false and counterfeit, and known by him to be so, and that it corresponded with that set out in the second count of the indictment, in the names of the cashier and president so far as that there was not in the one any letter added or omitted which would vary the sound of the name; and that the note, so passed, had upon its face the letters “ No,” prefixed to the second 15,402 as is set forth in the said second count, then the jury ought not to find the traverser guilty upon that count.
¶6Verdict guilty, on the second count. Sentence, two years labor in the penitentiary.