stand as a witness, as to whether he signed his name to the note, may have been proper as a preliminary question, although it had been admitted by the appellant's counsel in his opening statement to the jury; but the testimony in regard to the note of May 12, 1883, for $90, to Thornton's having paid it, taken a receipt therefor, and the exhibiting and giving in evidence the receipt, was clearly irrelevant.

The evidence that the signature to the note had the appearance of having been written by some one other than the person who wrote the body of the note, was, no doubt, proper, notwithstanding the appellant's admission that he signed Thornton's name to it as maker. His claim that he so signed it by Thornton's direction, and that he acted in good faith, was impeached, to a great extent, by the fact that he disguised his handwriting. He signed Thornton's name to the note, without doubt; but his pretense that the latter directed him to do so might well be questioned when the fact was made known that he attempted to imitate Thornton's handwriting. He undertook, it is true, to explain why he tried to write Thornton's name so as to have it appear as though Thornton wrote it himself, but it was highly proper that the jury should consider whether or not the explanation was satisfactory. It was an important circumstance, and the testimony bearing upon it was rightly submitted to the jury.

The appellant's counsel claims that the transaction in regard to the appellant's delivery of the note in question, with other notes, inclosed in an envelope, to Friendly as collateral security for the payment of the check drawn by the former upon Corbett & McClary, in favor of the latter, could not, in view of the proofs, admitting the note to have been a forgery, have been intended to injure or defraud Friendly as charged in the indictment, and he cites Bish. Crim. Law, § 599, in support of his position. He claims that in order to bring the case within the section of the statute before referred to, Friendly must have parted with something of value, or have in some way obligated himself upon the faith of the particular note, in order to have been injured or defrauded. The state undoubtedly had to prove, in order to secure the appellant's conviction, that he had made such a use of the note as might result in injuring or defrauding some one. If his deposit of the note with Friendly could not possibly have injured the latter, the intent to injure or defraud would not have been established. The note must have been "uttered or published as true and genuine," with that intent, before any crime could be claimed to have been committed under the section of the statute; but no injury or defrauding need in fact have been accomplished in order to complete the crime. The intent must exist, but it may wholly fail to produce injury or to defraud any one, and still the crime be committed. The pledge of the note to Friendly, under the circumstances shown by the bill of exceptions, may have resulted in injuring or defrauding him. If the check had not been paid, he could not, as he had a right to suppose, have resorted to the note if it was a forgery. It was left

with him to quiet any fears upon his part that he would not receive the amount of the check to apply upon his debt. It was calculated to lull him into security; and, although he was not in fact injured thereby, nor defrauded in consequence thereof, yet the intent may nevertheless have existed and the crime been complete.

The appellant knew the note had been forged, if it were forged; knew it was a mere sham, a deceit; yet he pledged it to Friendly to induce him to rely upon it. He could not, therefore, avoid the charge that he intended to injure or defraud; the act, in itself, was a fraud. Under this view the court below properly submitted the case to the jury under the instructions given, and committed no error in refusing the instructions asked by the appellant's counsel.

The circuit court, however, did commit error in permitting counsel for the state to examine the appellant, when upon the witness stand, upon matters not testified to by him in his evidence in chief, and in requiring him to write his name and other names, as before suggested. The statute of the state which allows the accused in such a case to be a witness, provides that when he offers his testimony as a witness in his own behalf he shall be deemed to have given to the prosecution a right to cross-examine him upon all facts to which he has testified, tending to his conviction or acquittal. Laws 1880, pp. 28, 29. But this does not compel him to be a witness against himself beyond such cross-examination. The humane principle of the law, that a party shall not be compelled to be a witness against himself, otherwise remains in full force, and is as effectually violated when the cross-examination of the accused is extended beyond the facts to which he has testified, as it would be if he were to be called and made to testify at the instance of the state. The object and purpose of the statute referred to were to afford an opportunity to the accused to relate his account of the transaction in which he is alleged to be implicated, and it would be a great violation of good faith to permit the state to take advantage of his situation and change the trial into an inquisition. The cross-examination in such cases must be strictly confined to the facts testified to by the accused. The law throws around him in such case an immunity which ought to be sacredly maintained.

It was error, also, to allow the witness Thornton to be recalled to write his name, in order to compare it with the signature to the note. He had testified that it was not his signature, and that was as far as counsel for the state should have been permitted to pursue the subject. He was supposed to have told the truth when he said under oath that he did not sign the note. He could not then be allowed to prove or attempt to demonstrate that he had told the truth. Such practice might, perhaps, be permitted upon cross-examination; but it is not proper for the party who calls the witness to undertake to bolster his evidence in that way.

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These errors do not appear to nave prejudiced the appellant, and

this court, ordinarily, will not reverse a judgment in such a case; but where the error consists of an infraction of a constitutional guaranty in favor of personal liberty, such as the compelling a party accused of a crime to be a witness against himself, the law will presume an injury, and the court have no alternative but to adjudge accordingly.

The judgment appealed from will therefore be reversed, and the case remanded for a new trial.

1. CRIMINAL LAW-FORGERY-INDICTMENT-ÅLLEGATION OF INJURY. Upon prosecution for forgery under the statute of Oregon, (section 600, Crim. Code,) it is not necessary to show in the indictment the injury done; and in the case of a promissory note, though the indictment name the payee, it is a matter of evidence and not necessary to be alleged. A charge of an intent to injure or defraud generally, or an intent to injure and defraud a particular person, is sufficient.

2. SAME

EVIDENCE - CROSS-EXAMINATION ON IMMATERIAL AND COLLATERAL POINTS-IMPEACHMENT OF TESTIMONY.

When the accused attempts by his own testimony to prove from circumstances his authority to sign the name of another person, any proof showing that the circumstances were unimportant would be material, notwithstanding the rule of evidence that upon cross-examination a witness cannot be examined upon a collateral or immaterial point merely to impeach him, or contradict his testimony.

Indictment No. 4. Appeal from Lane county.

W. R. Willis, for appellant.

J. W. Hamilton, Dist. Atty., and Geo. S. Washburne, for respondent.

THAYER, J. The appellant herein was indicted by the grand jury of the county of Lane for the crime of forgery, and subsequently tried and convicted of that offense. From the judgment of conviction entered thereon he has appealed to this court. He assigned several grounds of error in his notice of appeal, and which have been submitted for the consideration of the court. We have heard them discussed by the respective counsel in the case, and are of the opinion that no such error was committed as would justify a reversal of the judgment.

The demurrer to the indictment was properly overruled. The latter was in the usual form; charged the appellant with having forged Samuel Dillard's and A. H. Spare's names to a promissory note, made payable to one J. E. Holt, and with the intent to injure and defraud the said Holt.

The counsel for the appellant claimed that the indictment was defective, in that it did not show how any injury had or could occur to the said Holt. Counsel admitted that it was not necessary to name

any one as having been injured or defrauded; but, as the prosecution had seen fit to name the payee in the note as the intended injured party, it should have shown how he was or could have been injured. But, as we view the question, under our statute, it is a matter of evidence, and not necessary to be alleged, that a charge of an intent to injure or defraud generally, or an intent to injure and defraud a particular person, is sufficient. Section 600, Crim. Code. The naming a particular person, in such case, would have no effect except to confine the prosecution, in its proof of injury or defrauding, to the particular person named. The admission of testimony to show that the signatures of Dillard and Spare to the note appeared to have been written in a different handwriting than that of the body of the note was proper, although the appellant admitted, in his opening statement to the jury, that he signed the names of the said parties to it. The change of the handwriting was a material circumstance to be submitted to the jury, notwithstanding the appellant admitted that he intentionally wrote the names of the two parties as near like they would have written them as he could, and gave as a reason therefor "that he thought that was the right way to write it to make it legal." The jury might not be satisfied with such childlike and bland explanation, might believe that it was only a subterfuge, and that it indicated guilt.

ness.

The main ground of error was the admission of testimony to contradict the appellant's testimony, called out by the state, as to what he said to Mrs. Kinsey at the time he borrowed $900 from her, and to Washburne on the same occcasion; also what he said to Whipple at Cottage Grove at the time he got money of him, as Mr. Garrott's agent, on the note he gave Garrott. It is a well-established principle of the law of evidence that a witness, upon cross-examination, cannot be examined upon an immaterial or collateral point with a view of contradicting the testimony elicited in order to impeach the witBut, upon the other hand, when a witness has made statements at another time different from those testified to by him upon the trial, his attention may be called to such statements, and if he deny having made them, witnesses may be called to prove that he did make them. The question here to be determined is whether the evidence objected to, and which is now made the subject of complaint by the appellant's counsel, came within the first or second rule referred to. It will be observed from the bill of exceptions that the appellant, when upon the stand as a witness, was attempting to establish that he had authority from both Dillard and Spare to sign their names to the note. He undertook to show it by showing that he had been accustomed to sign their names to promissory notes with their knowledge and acquiescence. He was asked by his counsel to state what notes he had signed Mr. Dillard's name to, which he had ratified, and answered: "Three notes to Mr. Chrisman, one to Mr. Wingard, and two to Mr. Shultz, one to Garrott." He said: "I

so signed the names of Spare and Dillard to a note to Mrs. Kinsey for $900, for money borrowed from her through Mr. Washburne, her a.torney. I saw Mrs. Kinsey about the loan. I went to see her in company with Mr. Washburnc." He was then asked by his counsel the following question: "Did Mr. Spare and Mr. Dillard know that you were using their names to notes?" He answered: "They did; they never objected to my using their names." He was then interrogated by his counsel as to what notice Spare had that he was using their names, and he proceeded to mention circumstances showing that Spare knew it. Then the state called out the testimony before referred to; asked the appellant if he did not tell Mrs. Kinsey, at the time he went with Mr. Washburne to see her about borrowing $900 from her, that Mr. Spare and Mr. Dillard would sign the note with him as security; if he did not tell Mr. Washburne, at the time he got the money of Mrs. Kinsey from him, that Dillard and Spare had signed their names to the note themselves; and if he did not tell Mr. E. W. Whipple, at Cottage Grove, at the time he got the money from him, as Mr. Garrott's agent, on the note that he gave Mr. Garrott, that Dillard had signed his name to that note himself. If this testimony tended to contradict the statements made by the appellant, when on the stand as a witness, in regard to his having had authority to sign Dillard's and Spare's names to promissory notes, then it was competent, and if the appellant denied making the statements called for by the testimony they could be proved by other parties.

It may, we think, reasonably be inferred from the bill of exceptions that the appellant, by referring to the Kinsey and Garrott notes, intended to have it understood that they were notes he had signed Dillard's and Spare's names to, with the understanding from them that he might do so. But when he dealt with the parties and their agents at the time he borrowed the money, according to their testimony, he represented that he would procure said Dillard and Spare to sign the notes as surety for him, and told them afterwards that they had signed the notes themselves. The appellant attempted to establish that he had authority to sign the names of said parties to the Holt note, from the fact that he had signed their names to other notes, and that they had ratified his acts in so doing; that among the notes he had signed their names to he mentioned those of Mrs. Kinsey and Garrott. Now, if it were a fact that he told the latter parties and their agents that he was going to and had procured said parties to sign the notes themselves, it would hardly be consistent with his statements upon the witness stand. It seems to me that it would have been competent to have inquired of him, upon the crossexamination, whether he told Mrs. Kinsey or the agents of Garrott that he had such authority when he negotiated the loans, and that a suppression of the fact at that time was a circumstance affecting his credibility concerning his pretended claim of authority. The appel lant was endeavoring to prove from circumstances that he had such