¶1delivered a dissenting opinion, as follows:
¶2The defendant was indicted for obtaining the signature or endorsement of a certain party in the indictment • named, to a draft drawn on a firm in New York.
¶3The section of the Code under which the indictment is framed is: “ Every person who by any false pretense, or by any false token or counterfeit letter,, with intent to defraud another, obtains from any person any personal property, or the signature of any person to any written instrument, the false making of which is forgery, shall on conviction, be imprisoned in the .penitentiary not less than three nor more than ten years.”
¶4It is clear the indictment is not for getting money under false pretenses. The judge so charged the jury, and even that this was not a subject of inquiry. It is equally clear, and is not contested by my brother Turney, that the indictment is for obtaining the signature to or endorsement of the check, by the false pretense that he was a member of the firm on which it was drawn. Has not the jury most clearly found a verdict in violation of the instructions of his Honor? No one questions this, I believe. Yet it is to be *37held precisely the same thing as if they had obeyed them; that is, they have done what he told them not to do — but in .doing so they have found a 'proper verdict, if this one is affirmed.
¶5For this offense we are now to pass judgment upon him. The basis of that judgment is the verdict of the jury. That verdict is, "We find the defendant guilty of' getting the money under false pretenses, in manner and form as charged.
¶6The language is so plain, that we cannot misunderstand it — We find the defendant guilty of getting the money under false pretenses, in manner and form as charged. We pass judgment on him, not for getting money under false pretenses, but for obtaining an endorsement on a draft, by a false pretense. Is this the offense for which he is convicted by the jury? Hot if language means anything. To test this, let us assume there had been two counts in the indictment — * one for obtaining the endorsement, and another for getting money or personal property of another; under which count would we have held the party convicted? Assuredly, the latter, for so the jury say. The hold--ing of the majority opinion can only be correct, then, on the principle that a verdict for one felony, justifies a sentence for another and different one, where we can see he ought to have been convicted of that other. If there had been a count to fit the verdict, it would have been good for that; but as there is none, it is good for another and different offense from the one charged, and for which- he was not tried. In addition, the result, as I understand it, is, that a party *38is tried for one offense, convicted of another, and then, sentenced, without conviction or verdict as to the offense on which we pass judgment.
¶7That this verdict does not support or authorize the sentence, seems clear, from the fact that my learned brother is compelled to assume a colloquy not found-in- the record, and an entry not according to the responses given by the jury, but one overlooked by the Judge and Attorney-General, or else it would have been corrected. Why the necessity of correction if it is right now? The fact that it comes here in this, form is most conclusive evidence that it was so returned by the iury, and the judge did not feel authorized to change it. Be this as it may, we can only try defendant by the record, and cannot speculate as to what it would have contained if the judge had had his attention called to it. The law presumes his attention, and as a record it imports absolute verity, and. so must be accepted by us.
¶8The jury say, he got the money by false pretenses; yet in fact, he got it, not by a false pretense, but by a genuine signature, admitted to be correct. He got the signature by a false pretense, it is clear — but not the' money.
¶9I am as much opposed to adhering to mere technicalities as any man, I feel sure; but I cannot go the length of this view, for I cannot see any limit to our power in this direction in the future. If a-party is indicted for larceny, and we see he is guilty from the proof, and the jury find him guilty of rape,. I fear the rule or principle given in this case would-*39enable us to affirm for larceny. Obtaining money under false pretenses is as distinct an offense from obtaining an endorsement, as rape is from larceny. Better let a bill of costs be paid by the State, than to go so far as this, at any rate, at one step. In such a course I prefer to make haste slowly, and be sure of the ground for every step I take. I can’t, see solid ground here, therefore fear to go too fast and too far. For these and other reasons I am compelled to dissent from the majority opinion.