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PART II.

OFFENCES AGAINST PROPERTY.

I. DEFINITION.

CHAPTER IX.

FORGERY.

Forgery is fraudulently making
a false suable document with
intent to defraud, ? 653.
Is a misdemeanor at common
law, and as such cognizable
in State courts, & 653.

II. MODES OF PERPETRATION.
All concerned in are principals,
2655.
Partner may be guilty of against
partner, ¿ 656.

Party signing his name when

such name is another's may be guilty of forgery, 657. Otherwise when names are slightly variant, & 658. Forgery to sign under an as

sumed name, & 659.

Forgery to sign name of non

existent person, ? 660. Forgery to alter writer's name when effect is to defraud, ? 661.

And so to falsely alter one's

own executed deed, ¿ 662. Fraudulently executing deed with a false date may be forgery, 2 663.

Forgery to make false entry in pass-book, 664.

So as to entries in book settlements, 665.

So as to books of original entry,

So when clerk makes false entries in book he is employed to keep, 8 667.

Signing another's name without authority is forgery, 668. Agent having bonâ fide belief that he is authorized to sign is not guilty of forgery, ¿ 669. Fraudulently using a man of straw as acceptor to charge a responsible person of the same name is forgery, 2 670. Forgery to fill up blank with

terms other than authorized, 8 671.

So to fill up without authority

cheque already signed, 672. So for an agent fraudulently to

alter terms he was employed

to write, 673.

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2 666.

III. WHAT INSTRUMENTS ARE THE

OBJECTS OF FORGERY. Necessary that instrument should support a primâ facie case, 680.

But instrument need not be in writing or in words, 681. Bonds, deeds, commercial paper, receipts, orders, "other writing," 682.

Judicial or political records,

683.

Book entries, 684.

Railway and other tickets, 685. False making of another's sig

nature to a statement ex

posing the latter to suit is forgery, 686.

So of certificates of character, 2 687.

But not, it seems, of diplomas

or pictures, 688. Certificate as to negotiable paper is forgery, & 689.

So of trade-marks or labels when party issuing is liable to action for deceit, & 690. Instrument must be capable, if genuine, of being proof in legal process, 691. But such process need not be against the party whose name is forged, 692.

Nor need the party injured have

a local legal existence, 693. Nor need there be any imme

diate personal injury, 2 694. Nor need the instrument be more than prima facie proof, 695.

But an instrument that in no

possible case can be sued on cannot be the object of forgery, 696.

Defects as to seals, stamps, and

attestations, may not destroy legal efficacy, 697. Forgery of void bank notes not indictable, though otherwise

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To uttering an intent to defraud is necessary, ? 705. Uttering may be inferentially proved, 2 706.

No defence that instrument was

obtained by a trap, 707.
But there must be an exhibition
of the instrument lucri causa,
8 708.

And a capacity to injure, 709.
When offence is felony, parties
counselling are accessaries
before the fact, & 710.
Venue is placed where forged

instrument was passed, 711. Uttering is an independent offence, 712.

Intent to defraud to be inferred

from facts, 2713.

No defence that there was no party at the time to be defrauded, 714.

Scienter may be proved by other forgeries and utterings, 715. V. PROOF OF CHARTER OF BANK. When bank is defrauded, existence of bank must be proved or judicially noticed, 716.

VI. INTENTION.

Intention to defraud necessary to offence, 2717.

No defence that the party intended no harm, or that the claim was just, 718.

VII. HANDWRITING, & 719. VIII. HAVING COUNTERFEIT MONEY IN POSSESSION.

Having counterfeit money in possession with intent to defraud is a statutory offence, ? 720.

Indictment in such case must

describe as in forgery, 721. Scienter in such case is material, ¿ 722.

Intent to be inferred, 723. Having in possession several kinds of notes is one offence, 2724

IX. INFERENCE OF FORGERY FROM EXTRINSIC FACTS.

Collateral mechanical evidence of forgery,

725.

Presumption of forgery from uttering, & 726.

X. INDICTMENT IN FORGERY AND

UTTERING.

Not duplicity to state the offence in varying phases, 2727. Variance as to general designa

tion of instrument fatal, ¿ 728. Instrument must be accurately

set forth, 8 728 a. Of a foreign language translation must be given, ? 729. Setting forth of non-producible instruments may be excused, @730.

Vignettes and mottoes need not be given, 731. Nor stamps, 732. Indorsements need not be given nor surplusage, 733. Otherwise as to dates, 734.

Altered and inserted words,

"Purporting to be" not essen

tial, ¿ 738.

Indictment must show instrument to be capable of being used in legal process, 739. Must aver extraneous facts when necessary for this purpose, % 740.

In setting forth charters of banks indictments must conform to statute, & 741. Intent to defraud must be specially averred and so of scienter, & 742. Possibility of fraud is enough. to sustain averment, 743. Party to be defrauded must be

specified, 743 a.

When notes of fictitious bank

are forged, party on whom notes are passed should be averred, ¿ 744. Actual damage need not be

averred or proved, § 745. Not always necessary to aver

person on whom
passed, ¿ 746.

paper

is

Place of uttering may be laid as place of forgery, & 747.

XI. COINING.

State courts take jurisdiction of, & 748.

Counterfeit must be likely to deceive, ¿ 749.

All participants are principals, 8 750.

General description of coin is enough, 751. Offering with intent to defraud is uttering, ¿ 752. Guilty knowledge is to be inferred from facts, ? 753. Existence of genuine original need not be proved, 754. Fraudulent diminution is coining, ? 755.

Sewing to indictment is not suf- POINTS FOR DEFENCE IMPROPERLY

when material must be

averred, ? 735.

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I. DEFINITION.

§ 653. FORGERY at common law' is defined by Sir Wm. Blackstone as the fraudulent making or altering of a writing to the prejudice of another's right, and by Mr. East as the false making or altering, malo animo, of any written instrument for the purposes of fraud and deceit.3

According to Sir J. F. Stephen, "every one commits a misdemeanor who forges any document by which any other person may be injured, or utters any such document knowing it to be forged, with intent to defraud, whether he effects his purpose or not."

In 1865, in a remarkable case, which will be hereafter criticised," Cockburn, C. J., declared that forgery, "by universal acceptation, is understood to mean" "the making or altering a writing so as to make the alteration purport to be the act of some other person, which it is not." But this definition was soon found too scant, and afterward, in 1869, we hear it announced on a crown case reserved, by Kelley, C. B., with the concurrence of all his associates, that the offence consists in the fraudulent making of an instrument, in words purporting to be what they are not, to the prejudice of another's rights."

By Blackburn, J., in the same case, the following definition

1 That the crime of uttering forged papers is included in the common law definition of forgery, see In re Adutt, 55 Fed. Rep. 376, 1893.

2 4 Bl. Com. 247. As to intent to defraud, see infra, & 717.

3 See 2 Russ. on Cr. 709 et seq. for a full examination of the English cases; and see, also, 2 East P. C. 852; State v. Kimball, 50 Me. 411, 1861; Com. v. Chandler, Thacher C. C. 187, 1828; Pennsylvania v. McKee, Addis 33, 1792; Van Horne v. State, 5 Ark. 1845.

4 Dig. Crim. Law, art. 366.

Of this he gives the following illustrations:

An order from a magistrate to a jailer to discharge a prisoner as upon bail being given. R. v. Harris, R. & M. (1 Moody) 393, 1833. Infra, ?? 682, 683.

A certificate of character to induce the Trinity House to enable a seaman to act as master. R. v. Toshack, 1 Den. C. C. 492, 1849. Infra, & 637.

Testimonials whereby the offender obtained an appointment as a police. constable. R. v. Moah, D. & B. 550, 1856. Infra, 2 687.

The like with intent to obtain the office of a parish schoolmaster. R. v. Sharman, Dears. C. C. 285, 1854. Infra, 2 653, 685, 705.

A certificate that a liberated convict was gaining his living honestly, to obtain an allowance. R. v. Mitchell, 2 F. & F. 44, 1860. Infra, & 687.

In re Windsor,, 6 B. & S. 522, 1865; 10 Cox C. C. 118; the latter report being the fullest; and see criticism, infra, ¿ 667.

7 R. v. Ritson, L. R. 1 C. C. 200, 1869. Infra, 663.

from Comyn is adopted: "Forgery is where a man fraudulently writes or publishes a false deed or writing to the prejudice of another." This definition comes nearer than the two previous toward satisfying the cases which will appear hereafter. As, however, it is too limited in its description of the instrument of forgery ("deed" or "writing"), the following definition is now proposed:

Forgery in making a false suable document with intent to defraud. The offence is consummated by the making of a false document, on which suit might be brought, with intent to defraud, without any uttering.3

Forgery is the making a false suable doc

ument with in

tent to defraud.

Is a misdemeanor at common law.

§ 654. By the common law forgery is a misdemeanor.* By statutes passed in England and the United States, various kinds of forgery are made felonies. Whether in particular cases the statute has absorbed the offence is a matter of special statutory construction. It may be generally stated that unless the statute, in its terms, undertakes to be absorptive, establishing a statutory offence coextensive with the offence at common law, forgery may still be pursued as a common law misdemeanor in cases to which the statute does not reach, in those States where a common law criminal jurisdiction exists. On the other hand, when the statute in its terms is coextensive with the common law, then the statutory remedy must be exclusively followed; and eminently important is it for the pleader to recollect this in cases where by statute the offence is made a felony. Yet as a rule, in those States in which there is a common law criminal jurisdiction, the legislature has not attempted to absorb the common law in one sweeping statutory enactment, but has simply (as in England) declared that certain kinds of forgery shall be felonies, or shall be subject to special penalties. Where this is the

509 et seq.

1 I insert this limitation in accord- tion of forgery in New York has been ance with the law hereafter given remodelled in the Penal Code of 1882, (infra, ¿¿ 680-86) and to exclude the falsification of historical and news documents. The publication of false news is an independent offence. Infra, & 1448.

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3 R. v. Crocker, 2 Leach, 987, 1805; R. & R. 97; Com. v. Ladd, 15 Mass. 526, 1819; Com. v. Chandler, Thacher C. C. 187, 1828.

* Supra, 22. State v. Murphy, 17 R. I. 698, 1892.

See supra, 25-8.

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