tion, and take away that of the court: See Coleman v. Tennessee, 97 U. S. 509.

The exceptions numbered from 8 to 24 inclusive are taken to the refusal of the court to permit evidence proposed to be given, that the stock of the bank belonged to the family of the late John G. Williams, its founder, and to one of whose daughters the defendant Cross was married, while the defendant White was the brother of the widow of the deceased, and offered to repel the charge of an intent to defraud the bank; and further, as to the previous condition of the bank under the management of former presidents.

We think the testimony was properly rejected. The simple inquiry was as to the alleged forgery of the note set out in the indictment, and the fraudulent purpose for which it was intended to be used, and was in fact used in covering up the real condition of the institution, and supplying spurious in place of its wasted resources. To this end, the forgery was committed as a method of effectuating the purpose, and placed as if genuine among the assets. This use of the paper involves the intent to defraud some one; and under our statute (Code, sec. 1191), a general charge of an intent to defraud without designating the person or corporation intended to be defrauded is sufficient.

The intent to defraud is involved in the making and using the forged instrument as if genuine, and this purpose is not repelled by the existence of family relations among the parties, nor does the evidence tend to disprove the presence of the fraudulent intent in the act to which it is an inseparable incident. Whatever misconduct of others, previously intrusted with its management, may have led to the disastrous condition in which, in assuming the presidency, the defendant Cross found it, no defense nor extenuation in law is afforded by its necessities for the criminal act committed, and inquiries in that direction were wholly out of place in this prosecution.

Again, other notes, alleged to be spurious, and found among the assets of the bank, the state proposed to prove in support of the charge of conspiracy, and to show the scienter, and after objection, was allowed to do so.

For this purpose only it was competent, and for this purpose alone the proof was admitted. But it became immaterial, inasmuch as no conviction was had upon the charges it was offered to support.

We dispose of the other exceptions relating to the evidence with the single remark that they are equally untenable as the others, and we next proceed to examine the instructions which were tendered and refused, as also such as were addressed to the jury, so far as they are not embraced in what has been already said.

The first three refused instructions are of the class referred to in the preceding remark as having in their import been before examined.

The fourth relates to the charge of conspiracy, which is put out of the way by the verdict.

The fifth asserts, as a proposition of law, that if the note was forged, not for the benefit of the defendants, nor was any money obtained thereon, but merely to create a false idea of the condition and solvency of the bank, and the jury so believe, the defendants are not guilty.

5. The proposition is an erroneous statement of the law, for if the forgery was committed with a present intent to defraud, the offense was complete, whether the expected advantage was to accrue from it to the defendants personally or to another, and whether the purpose was successfully attained or they failed in it.

6. The sixth instruction is substantially the same as must be our ruling upon it.

7. The court properly declined to tell the jury that the finding the note among the assets of the bank, after the departure of the defendants, was not a finding that the defendants had had possession, and warranted no inference that the defendants knew of, were guilty of, or were in any way connected with the making of the note.

The tenor of the evidence did not authorize the giving any such direction, and the jury were to draw their conclusions, not from one isolated fact, but from all that was shown.

9. If there was not such resemblance between the genuine and spurious handwriting of Graves and Sanders appearing in the note as would deceive a man of ordinary intelligence and caution, and for want of similarity in the signatures the forged note "did not have any legal adaptation to accomplish a legal wrong, the person could not be convicted."

This proposition would excuse an act of forgery in every case, even when the fraud had been consummated when the person upon whom it was practiced was unacquainted with the handwriting of one whose signature it purported to be,

and who reposed confidence in the genuineness of the paper. The variation in the writing may be evidence of the absence of an intent to defraud, but not when the intent has been developed in the act of defrauding. It was in this case made payable to the bank, and put in possession of the bank, and there left when its doors were closed, as part of its resources. Besides, the variance was not so marked as to call for such a direction, nor does it find support in the case of State v. Covington, 94 N. C. 913; 55 Am. Rep. 650. Precisely such an instruction was declined in that case in words almost identical, and the ruling affirmed on appeal; Merrimon, J., speaking for the court, in the conclusion of his remarks upon this point, thus: "If, therefore, the false and fraudulent paper-writing be such that it might, from its nature and the course of business, deceive or mislead to the prejudice of another person, the offense of forgery would be complete."

The remaining instruction refused was, that if only one of the names signed to the notes is shown to be forged, and the evidence not satisfactory of the forgery of the other, there is a fatal variance, and the verdict must be for the defendants.

The contrary has been expressly decided in the cases of State v. Gardiner, 1 Ired. 27, and State v. Davis, 69 N. C. 313, and we are content with the mere reference to them.

It will conduce to a more correct understanding of these exceptions and the rulings upon them to reproduce so much of the charge delivered in place of that asked and refused as relates to the same subject-matter, and which is also excepted to in detail.

After explaining the separate charges made in the several counts of the indictment, and defining the offense of forgery, the court says:

"If the jury should be satisfied, beyond a reasonable doubt, from the testimony, that either of the defendants forged or altered the note set forth in the bill of indictment with intent to defraud any individual or corporation whatever, then such defendant would be guilty as charged in the first count of the bill of indictment.

"If the jury should be satisfied in the same way, beyond a reasonable doubt, that either of the defendants aided or abetted another in falsely forging or altering said note, or assented to the false forging or altering said note after it had been forged by another, with intent to defraud any person or

AM. ST. REP., VOL. IX. -5

corporation whatever, such defendant would be guilty, in manner and form, as charged in the first count.

"If the jury are satisfied beyond a reasonable doubt that either of the defendants did utter and publish said note, knowing it to have been forged or altered with intent to defraud any person or corporation whatever, then such defendant would be guilty as charged in the second count.

"If the signature of the name of D. H. Graves to the note did not resemble his own proper signature, that is a circumstance that the jury may consider in determining whether there was an intent on the part of either of the defendants to defraud said Graves. But if his name was written by either of the defendants to said note for the purpose of defrauding any person, or if either of the defendants assented to the writing of such name by another than Graves with said intent, then such defendant would be guilty, whether the signature bore such resemblance to that of said Graves as would probably deceive any person acquainted with his handwriting as to the genuineness or not. The rule in reference to the adaptation to deceive in such cases applies only to counterfeit money, or currency, or coin."

We find nothing in this series of directions of which the defendants can justly complain, and what has been already said disposes of these exceptions also. But if there was an erroneous statement of the law in one particular, while it was correctly laid down in other parts of the single instruction, it would be unavailing according to our own and the rulings in the United States supreme court: Bost v. Bost, 87 N. C. 477; Williams v. Johnston, 94 Id. 633; Johnston v. Jones, 1 Black, 209; Lincoln v. Claflin, 7 Wall. 132.

We have omitted to advert to the charge in so far as it refers to the second and third counts, for the reason that no verdict was demanded or rendered on them, as will hereafter appear, and no harm has come to the defendants in consequence.

The last and remaining objection disclosed in the record has reference to what transpired at the rendition of the verdict. The facts are these: The jurors having retired to consult upon their verdict, sent a message through the officer put in chargo of them, signed by one of their number, to the effect that it was impossible for them to agree, and this juror stating that he had been suffering for a day or more with sick headache caused by indigestion, and did not feel able to continue

longer. The jurors were thereupon brought before the court by order of the judge, and the court, in the exercise of its discretion, in the presence of the defendants, proceeded to poll the jury, to the doing of which the defendants excepted. In polling the jury, the judge first inquired of the whole body whether they could agree, and the foreman answered that they could not. Then each juror, as his name was called, was asked, "What say you are the defendants, or either of them, guilty in the manner and form as charged in the bill of indictment, or not guilty?" To this, exception was also taken. When the process of making the separate inquiry of each was concluded, it appeared from the answers that all the jurors were agreed upon a verdict of guilty against both defendants upon the first and second counts, while two of the number were for finding them not guilty upon the third and fourth counts. The solicitor thereupon proposed, in presence of the jury, to enter a nolle prosequi to those counts. The jury withdrew, and, after argument from the solicitor, he was authorized to make the entry. Upon the return of the jury to the court-room, they were informed by the judge of the allowance of the entry, and that they need only pass upon the charges contained in the first and second counts. After again retiring, they returned in charge of the officer into court, and for their verdict say the defendants are guilty. The jury was again polled, at the instance of the defendants' counsel, and asked, each juror, as to the verdict, and each responded, “Guilty.” Exceptions were made to each step taken in the action of the court; and further, that the verdict, though so ordered by the court, was a general and not a special verdict. The court finds, as a fact, that the jury were not ordered to find a special verdict. While we do not approve of the mode adopted to ascertain the individual opinion of each juror before an agreement has been reached by the entire body, even to ascertain whether there are insurmountable difficulties in the way of arriving at unanimity and they should be discharged, a discretionary power rested in the judge, because of its possible injurious effect upon the minds of the dissenting jurors, there is no error in law committed, and it is apparent no injury has come to the defendants by eliminating so much of the charge as was abandoned by the solicitor. He had no right to enter a nolle prosequi in its strict legal sense, which, like a nonsuit in a civil action, would leave the defendants exposed to another prosecution for the same offense. The action of the