burn any barn or stack of corn or grain; or to imprison or carry away any subject, in order to ransom him, or to make prey or spoil of his person or goods upon deadly feud or otherwise, in the four northern counties of Northumberland, Westmoreland, Cumberland, and Durham, or being accessory before the fact to such carrying away or imprisonment; or to give or take any money or contribution, there called blackmail, to secure such goods from rapine; is felony without benefit of clergy. By statute 22 and 23 Čar. II, c. 7, maliciously, unlawfully, and willingly, in the night time, to burn, or cause to be burnt or destroyed, any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns; or to kill any horses, sheep, or other cattle, is felony; but the offender may make his election to be transported for seven years; and to maim or hurt such horses, sheep, or other cattle, is a trespass for which treble dam[*245] ages shall be recovered. By statute 4 and 5 W. and M. c. 23, to burn on any waste, between Candlemas and Midsummer, any grig, ling, heath, furze, goss, or fern, is punishable with whipping and confinement in the house of correction. By statute 1 Ann. st. 2, c. 9, captains and mariners belonging to ships, and destroying the same, to the prejudice of the owners (and by 4 Geo. I, c. 12, to the prejudice of insurers also), are guilty of felony without benefit of clergy. And by statute 12 Ann. st. 2, c. 18, making any hole in a ship in distress, or stealing her pumps, or aiding or abetting such offences, or wilfully doing any thing tending to the immediate loss of such ship, is felony without benefit of clergy. By statute 1 Geo. I, c. 48, maliciously to set on fire any underwood, wood, or coppice, is made single felony. By statute 6 Geo. I, c. 23, the wilful and malicious tearing, cutting, spoiling, burning, or defacing of the garments or clothes of any persons passing in the streets or highways, with intent so to do, is felony. This was occasioned by the insolence of certain weavers and others, who, upon the introduction of some Indian fashions prejudicial to their own manufactures, made it their practice to deface them; either by open outrage, or by privily cutting, or casting aqua fortis in the streets upon such as wore them. By statute 9 Geo. I, c. 22, commonly called the Waltham black act, occasioned by the devastations committed near Waltham in Hamp. shire, by persons in disguise or with their faces blacked (who seem to have resembled the Roberdsmen, or followers of Robert Hood, that in the reign of Richard the First committed great outrages on the borders of England and Scotland); (1) by this black act, I say, which has in part been mentioned under the several heads of riots, menaces, mayhem, and larceny, (m) it is farther en acted, that to set fire to any house, barn, or outhouse (which is extended by statute 9 Geo. III, c. 29, to the *malicious and wilful burning or setting fire to all kinds of mills, or to any hovel, cock, mow, or stack of corn, [*246] straw, hay, or wood; or unlawfully and maliciously to break down the head of any fish pond, whereby the fish shall be lost or destroyed; or in like manner to kill, maim, or wound any cattle; or cut down or destroy any trees planted in an avenue, or growing in a garden, orchard, or plantation, for ornament, shelter, or profit; all these malicious acts, or procuring by gift or promise of reward any person to join them therein, are felonies without benefit of clergy; and the hundred shall be chargeable for the damages, unless the offender be convicted. In like manner by the Roman law to cut down trees, and especially vines, was punished in the same degree as robbery. (n) By statutes 6 Geo. II, c. 37, and 10 Geo. II, c. 32, it is also made felony, without the benefit of clergy, maliciously to cut down any river or sea-bank, whereby lands may be overflowed or damaged; or to cut any hop-binds growing in a plantation of hops, or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or delph of coal. By statute 11 Geo. II, c. 22, to use any violence in order to deter any person from buying corn or grain; to seize any carriage or horse carrying grain or meal to or from any market or sea port; or to use any outrage with such intent; or to scatter, take away, spoil, or damage such

(2) 3 Inst. 197.

(m) See pages 144, 208, 285, 240.

(n) Ff. 47, 7, 2.

grain or meal; is punished for the first offence with imprisonment and public whipping: and the second offence, or destroying any granary where corn is. kept for exportation, or taking away or spoiling any grain or meal in such granary, or in any ship, boat, or vessel intended for exportation, is felony, subject to transportation for seven years. By statute 28 Geo. II, c. 19, to set fire to any goss, furze, or fern, growing in any forest or chase, is subject to a fine of five pounds. By statutes 6 Geo. III, cc. 36, and 48, and 13 Geo. III, c. 33, wilfully to spoil or destroy any timber or other trees, roots, *shrubs, [*247] or plants, is for the two first offences liable to pecuniary penalties; and for the third, if in the day time, and even for the first, if at night, the offender shall be guilty of felony, and liable to transportation for seven years. By statute 9 Geo. III, c. 29, wilfully and maliciously to burn or destroy any engine or other machines, therein specified, belonging to any mine; or any fences for inclosures pursuant to any act of parliament, is made single felony, and punishable with transportation for seven years, in the offender, his advisers, and procurers. And by statute 13 Geo. III, c. 38, the like punishment is inflicted on such as break into any house, &c., belonging to the plate-glass company, with intent to steal, cut or destroy, any of their stock or utensils, or wilfully and maliciously cut or destroy the same. And these are the principal punishments of malicious mischief.

III. Forgery, (16) or the crimen fulsi, is an offence, which was punished by the civil law with deportation or banishment, and sometimes with death. (0) It

(0) Inst. 4, 18, 7.

(16) Anciently, at common law, forgery could only be committed by making falsely or uttering a matter of record, as an authentic matter of public nature, or deed, or will-some Bealed instrument. 1 Hawk. P. C., ch. 70, §§ 8-10; Com. v. Searle, 2 Binn., 332. The statutes of the different states of the American Union have added largely to the number of instruments which are the subject of forgery. The term as at present used is comprehensively defined as the false making or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability.' 2 Bish. Cr, L., 7th ed., § 572.

The false making. The making and uttering need not be by writing; as where, by engraving, an Austrian bank-note was forged. People v. Rhoner, 4 Park. Cr. R., 166. The forgery may be by printing: Com. v. Ray, 3 Gray, 441; by a stamp: Wheeler v. Lynde, 1 Allen, 402; even by a photograph: R. v. Rinaldi, L. & C., 330, where it was held forgery to take a "positive" evanescent impression of a bank-note, though the culprit was caught before he had taken a lasting "negative."

It is not necessary that the whole instrument be forged. A false signature written on a genuine instrument may be a forgery. Powell v. Com., 11 Gratt., 822; citing R. v. Wicks, R. and R., 149, and R. v. Winterbottom. 1 Den., 41. To make a material alteration on a true instrument with fraudulent intent is a forgery. R. v. Dawson, 1 Stra., 19; Teagin's Case, 2 East P. C., 979. Where words were inserted in a lease to express a contemporary oral agreement, held, no forgery.. Pauli v. Com,, 89 Pa. St., 432. An agent was authorized to sell and fill up blanks in insurance tickets. By filling and falsely antedating such a ticket the agent defrauded the company. This filling the blank falsely was held a material alteration, and the man was convicted. People v. Graham, Park. C. R., 135; citing R. v. Wilson, 2 C. and K., 527. Where a clerk was given a blank check with authority to fill it for a certain amount, and he wrote in a larger sum. See further as to forgery by fraudulent filling of blanks. R. v. Hart, 7 C. and P., 652; R. v. Vanduzer, 1 Cox C. C., 186; Wilson v. Park Commissioners, 70 Ill., 46; Van Duzer v. Howe, 21 N. Y., 531. Where a bond was altered after execution, and one of the signers was by false representations induced to assent on the express understanding that the representations were true; held, that there was no forgery, as the assent, however fraudulently gained, removed the false character of the instrument. State v. Flanders, 38 N. H., 324. A deed made by the parties purporting to make it was altered by them as to a material date with fraudulent intent. This was held forgery, Kelly, C. B., saying: "Every instrument which fraudulently purports to be what it is not is a forgery, whether the falseness of the instrument consists in the fact that it is made in a false name, or that the pretended date, when that is a material portion of the deed," is false. R. v. Ritson, L. R. and C. C., 199; State v. Kattleman, 35 Mo., 105. On the same paper with a promissory note, and below it, was an agreement referring to it and qualifying it. This was cut off. The act was a forgery, because the alteration was material, and changed a non-negotiable note into a negotiable one, thus chang ing the maker's liability. State v. Stratton, 27 Ia., 420. So it was held a material altera

may with us be defined, at common law, to be, "the fraudulent making or alteration of a writing to the prejudice of another man's right;" for which

tion where a note was payable at either of two places, and a paper was pasted over the name of one place, and on the paper a different name written, thus substituting the name of a solvent for that of an insolvent firm. Treble's Case, R. and R., 164. If one from a course of dealing supposes he has authority to sign another's name, it is no forgery; otherwise if one signs thus, thinking he can take up the paper when due. R. v. Beard, 8 C. and P., 143. The defendant brought a bill to a banker's as from T. The bill was not indorsed, but the defendant said he would indorse it. The banker then wrote per procuration T," beneath which the defendant signed his own name. Held, that this false assumption of authority was not forgery, as there was no false making. R. v. White, 2 C. and K., 404. Where two persons have the same name, and one signs this name with intention that the instrument shall be thought that of the other person, it is forgery. Meade v. Young, 4 T. R., 28; Barfield v. State, 29 Ga., 127. So if one uses his own name with fraudulent intent to represent a fictitious firm. R. v. Rogers, 8 C. and P., 629. So where the defendant induced his servant to sign a blank bill, and then filled it up, intending to charge another person of the same name as the servant. R. v. Blenkinsop, 2 C. and K., 531; see R. v. Epps, 4 F. and F., 81. Where one intends to utter a note as being the note of some one not the signer, but of the same name, and induces an innocent person, who does not intend to bind himself, to sign it, it is forgery. "It matters not by whom the signature is attached, if it be not attached as his own. If the note is prepared for the purpose of being fraudulently used as the note of another person, it is falsely made." The fraudulent intent necessary need not be "in the mind of the one who holds the pen in writing the signature. If that is done at the dictation or request of another, and for his purposes and use, and his designs are fraudulent so as to make it a forgery if he had written it himself, then the instrument is a forged one." Com. v. Foster, 114 Mass., 311. A fraudulent error in keeping books by a confidential clerk was held forgery. Biles v. Com., 32 Pa. St., 529. But in State v. Young, 46 N. H., 266, it is held, that a iran cannot be guilty of forgery by making a false entry in his own books, in his own possession, and before any settlement under which another has acquired rights, because the writing must be false, not genuine, without regard to the truth of what it contains-"a writing which is the counterfeit of something which has been or is a genuine instrument, or one which purports to be a genuine instrument, which it is not." The rule is said to be that "the writing or instrument which may be the subject of forgery must generally be or purport to be the act of another, or it must be at the time the property of another, or it must be some writing or instrument under which others have acquired" some rights, or liabilities sought to be effected, without their consent, by alteration. In R. v. Closs, Dears. and B., 460, a man sold as an original a copy of a painting with a copy of the artist's name on it. Held, that this was not forgery; that the name copied was no more than an arbitrary mark of identification, and was not properly a writing. So in Smith's Case, Dears. and B., 566, where B had sold a powder in packages with peculiar labels, and S copied the labels almost exactly and put them on packages of spurious powder; held no forgery. But a fraudu lent alteration of a book settlement was held forgery in Barnum v. State, 15 Ohio, 717; S. C., 45 Am. Dec., 601.

There may be forgery of public instruments when no private individual is injured; as of civil process. R. v. Collier, 5 C. and P., 160; or of a returned writ by the officer issuing it. Com. v. Mycall, 2 Mass., 136; or of a letter to a jailer authorizing the discharge of a prisoner. R. v. Harris, 6 C. and P., 129; or, under a statute, of a court record. Brown. People, 86 Ill., 239. The forged instrument need not have been acted on: the false mak ing with intent to defraud is the gist of the offense. Commonwealth v. Ladd, 15 Mass., 526; United States v. Shellmire, Bald., 370; State v. Pierce, 8 Iowa, 231. The crime con sists essentially in trying "to give an appearance of truth to mere deceit and falsity, and either to impose that upon the world as the solemn act of another which he is no way privy to, or at least make a man's act appear to have been done at a time when it was not done, and by force of such falsity to give it an operation which in truth and justice it ought not to have." 1 Hawk. P. C., ch. 73, § 2.

2. The apparent validity of the forged instrument. The forged instrument should in all essential points have upon the face of it the similitude of a true one, so that it is not radically defective and illegal in the very frame of it. 2 East P. C., 952. The forgery of a void instrument is not indictable; otherwise, if by a possibility the State or some person might be defrauded. Henderson v. State, 14 Tex., 503. Where three witnesses were required to a will and a false will had but two, held so plainly invalid as to be no forgery. Wall's Case, 2 East P. C., 953. So where a bill of exchange required a witness and the imitation had none. Moffat's Case, 2 East P. C., 954. See for the same principle, State v. Jones, 1 Bay, 207; State v. Gutridge, 1 Bay, 285. The fraudulent adding of the name of a subscribing witness to an instrument not requiring one, is not forgery. State v. Gherkin, 7 Ired., 206. In an indictment for forging a promissory note, the false instrument set forth contained no promise to pay money to bearer or order. Held, that this was no for

the offender may suffer fine, imprisonment, and pillory. And also by a variety of statutes, a more severe punishment is inflicted on the offender in many par

gery, since the instrument, if genuine, would not be a good promissory note in legal effect. R. v. Burke, R. and R., 496. Where a statute required that certain orders should be sealed and directed to a treasurer; held, no forgery to make a false order without seal and directed to a constable. R. v. Rushworth, R. and R., 317. So where an order was drawn without a payee. R. v. Richardson, R. and R., 193. But where a forged bill was uttered without the drawee's indorsement, it was held that the instrument was so far a bill as to be the subject of forgery. R. v. Wicks, R. & R., 149. So, an order differing only in some minute particulars from the statutory form, held not so far void that the false making might not be forgery. R. v. Lyon, R. & R., 255. The principle upon which these distinctions rest is laid down thus: An instrument void in law upon its face is not the subject of forgery, because the genuine and counterfeit would be equally useless, imposing no duty, conferring no right. State v. Smith, 8 Yerg., 150. "An instrument should be so far perfect in form and substance as to be valid if genuine, It is not the falsity of the writing alone, but also its supposed fraudulent effect, which makes a forgery criminal. If the forged instrument is so obviously defective in its form as this is, the law will not presume that it can accomplish the fraud which is perhaps intended. The rule seems to be well settled that a writing, void in itself and which cannot be made good by averment, if it were genuine, is not the subject of forgery." People v. Harrison, 8 Barb., 560; Abbott v. Rose, 62 Mé., 194. In order to be forgery, the instrument must be of such character that, if genuine, it would be evidence of the fact it recites. The instrument must be such that, when forged, it does or may tend to prejudice the rights of another. State v. Anderson, 30 La. An., 557; Barnum v. State, 15 Ohio, 717. In an indictment for forgery of a note, the instrument set out was an agreement without any consideration, to be paid in labor, and there was no averment of any extrinsic fact to make the contract operative. As the instrument, on its face, was without legal effect, and it was not shown operative by averment, it was held no forgery, although an ignorant man might be imposed upon by the instrument. People v. Shall, 9 Cow., 778. While one cannot be convicted of forgery if the instrument is apparently void, one may be when the invalidity is shown by proof of some extrinsic fact, because here there is a probability that some one may be defrauded. People v. Galloway, 17 Wend., 540; citing Sterling's Case, 1 Leach, 99, where the defendant was convicted of forging a will while the testator was alive; because, though in fact the will could not be genuine, the instrument purported on its face to be good for the purpose intended. In State v. Pierce, 8 Iowa, 231, it is said: "If the writing is invalid on its face, it cannot be the subject of forgery, for the obvious reason that it has no tendency to effect a fraud. Where, however, the invalidity is to be made out by the proof of some extrinsic fact, the instru ment, if good on its face, may be legally capable of effecting a fraud, and the party making the same may be punished." See also Brown v. People, 86 Ill., 239; State v. Shelters, 51 Vt., 102.

There may be a forgery of a bill of exchange, though not stamped according to law, notwithstanding this defect appears on the face of the instrument, since the stamp acts are revenue laws and not meant to vary the law of crimes. Hawkeswood's Case, 2 East P. C., 955; Morton's Case, ibid.: Teague's Case, id., 979; R. v. Pike, 2 Moo.. 70; Cross v. People, 47 Ill., 152; People v. Frank, 28 Cal., 507; Horton v. State, 32 Tex., 79..

3. Intent. The intent to defraud is the essence of the crime. It is not necessary that one should be actually defrauded. If the jury can infer from the circumstances of the case au intent to utter the instrument, that fact will be enough to imply an intent to defraud. Henderson v. State, 14 Tex., 503. There must be an intent to defraud some person or corpora tion, but the intent may be gathered from knowingly forging the instrument. U. S. v. Shellmire, 1 Bald. C. C., 370; Brown v. Com., 2 Leigh, 769. If the jury can fairly infer an intent to utter the forged note, the act of forgery will be sufficient to imply an intent to defraud. But if there could not possibly be any fraud effected by the false making, there could be no fraud intended, and hence no forgery. State v. Redstrake, 39 N. J., 365. Although one may intend to take up a bill when due, if he utters it knowing it to be forged and believing that he could raise money on it, there is a sufficient fraudulent intent to constitute forgery, and this, too, though the forger has actually paid the bill before conviction. R. v. Geach, 9 C. & P., 499. A man issued in payment of a debt a bill which he knew was fictitious. There was reason to suppose that he meant to take it up at maturity, but he did not communicate this to the creditor, who thought the bill genuine. Held, forgery. R. v. Hill, 2 Moo., 30. To constitute an intent to defraud, it is not necessary to intend to defraud a particular person, if the consequence of his act would necessarily defraud some person, but there must be a possibility of some one being defrauded. R. v. Marcus, 2 C. & K., 356. A man had altered a genuine medical diploma so as to make it appear that the document had been issued to him. On the discovery of the fraud he was indicted for forgery. The jury found that he altered the instrument with intent to induce the belief that it was genuine, but without intent to deceive any particular person. Held, no forgery, because it was necessary that, at the time of the alteration, there should have been an intent to defraud

ticular cases, which are so multiplied of late as almost to become general I shall mention the principal instances. (17)

By statute 5 Eliz. c. 14, to forge or make, or knowingly to publish or give in evidence, any forged deed, court-roll or will, with intent to affect the right of real property, either freehold or copyhold, is punished by a forfeiture to the party grieved of double costs and damages; by standing in the pillory, and having both the ears cut off, and the nostrils slit and seared; by forfeiture to the crown of the profits of the offender's lands, and by perpetual imprisonment. For any forgery relating to a term of years, or annuity, bond,. obli[*248] gation, acquittance, release, or discharge of any debt or demand of any personal chattels, the same forfeiture is given to the party grieved; and on the offender is inflicted the pillory, loss of one of his ears, and a year's impris onment; the second offence in both cases being felony without benefit of clergy. Besides this general act, a multitude of others, since the revolution when paper credit was first established, have inflicted capital punishment on the forging, altering, or uttering as true, when forged, of any bank bills or notes, or other securities; (p) (18) of bills of credit issued from the exchequer; (9) of South Sea bonds, &c.; (r) of lottery tickets or orders; (s) of army or navy debentures; () of East India bonds; (u) of writings under the seal of the London or royal exchange assurance; (w) of the hand of the receiver of the pre-fines; (x) or of the accountant-general and certain other officers of the court of chancery; (y) of a letter of attorney or other power to receive or transfer stock or annuities; and on the personating a proprietor thereof, to (p) Stat. 8 and 9 Wm. III, c. 20, § 36. 11 Geo. I, c. 9. 12 Geo. I, c. 32. 15 Geo. II, c. 13. 18 Geo. III, c. 79 (q) See the several acts for issuing them. (r) Stat. 9 Aun. c. 21. 6 Geo. I, cc. 4 and 11. 12 Geo. I, c. 32. (8) See the several acts for the lotteries. (u) Stat. 12 Geo. I, c. 82.

Stat. 12 Geo. I, c. 32.

(w) Stat. 6

(t) Stat. 5 Geo. I, c. 14. Geo. I c. 18.

some particular person. R. v. Hodgson, Dears. & B., 3.

9 Geo. I, c. 5.
(x) Stat. 32 Geo. II, c. 14.

The intent in uttering a forged instrument may be inferred from the uttering of other like instruments. State v. Williams, 2 Rich., 418; S. C., 45 Am. Dec., 741.

(17) The 24 and 25 Vic., c. 98, consolidates the various statutes on this subject, and goes with great particularity into an enumeration of the cases which shall be punishable under it. The punishment in some cases may be penal servitude for life.

Besides the punishment to which the forger is subject, he becomes, at common law, infamous, and incapable of giving evidence. Co. Litt., 6 b.; 1 Greenl. Ev., § 373. But to have this effect, there must be both a conviction and a judgment. Rex v. Castell, 8 East, 77; Rex v. Teal, 11 id., 309; People v. Whipple, 9 Cow., 707. The disability will be removed by a reversal of judgment, or by pardon: People v. Pease, 3 Johns. Cas., 333; and it is not competent to attach to the pardon a condition that the disability shall still remain. Ibid.

Statutes, in some cases, have changed this common law rule, either by making the convicted party a competent witness after he has endured the punishment, or by making the infamy of a person an objection, to his credibility only.

(18) Declaring that a paper is good is an uttering. U. S. v. Mitchell, 1 Bald. C. C., 366. "To utter and publish is to declare or assent, directly or indirectly, by words or actions, that a note is good. Offering it in payment would be an uttering or publishing." Commonwealth v. Searle, 2 Binn., 332. It is an offense to utter a note the forgery of which is an offense at common law. R. v. Sharman, Dears., 285; overruling R. v. Boult, 2 C. & K., 604, where it was held no offense to utter an instrument unless the fraud succeeded. Uttering to an accomplice is not enough to make an offense. R. v. Heywood, 2 C. & K., 352. There may be an uttering through the hands of an innocent agent. Com. v. Hill, 11 Mass., 136. Simply handing a bill with a forged indorsement to a clerk for payment is a sufficient uttering. R. v. Arscott, 6 C. & P., 408. A man gave a forged bill to a banker and asked him to take it as security for a debt, and the banker said that it would depend on his inquiries. Held, this conditional uttering was enough. R. v. Cook, 8 C. & P..582. A debtor exhibited to a creditor a forged receipt for the debt, claiming credit for it, but kept it in his own hands. Held, a sufficient uttering, for, unlike a promissory note, it need not be tendered to be taken. R. v. Radford, 1 C. & K., 707: but the mere exhibition of a false note with fraudulent intent, is not an uttering. R. v. Shukard, R. & R., 200. Handing another a counterfeit note as a specimen of engraving, not to put it in circulation, is not an uttering. R. v. Harris, 7 C. & P., 428; neither is it to give knowingly a counterfeit in charity. R. v. Page, 8 C. & P., 122.