with intent

Jew boy for fruit, and he put it into his mouth, under Offering pretence of trying whether it was good, and then taking to defraud is uttering. instead of it, a bad shilling out of his mouth, gave the bad coin to the prosecutor saying it was not good; this (which is called ringing the changes) was held to be an uttering within the meaning of the statute 16 Geo. II. c. 28. It has, however, been held by Lord Abinger that the giving of a piece of counterfeit coin in charity is not uttering within the statute, although the party knew it to be a counterfeit; but this case can no longer be regarded as law. On the other hand, the staking counterfeit coin at a gaming table as good money is an attempt to utter or pass the same, and losing it at play is a passing of the same against law; and so is the giving of counterfeit coin to a woman, as the price of connection with her. And it is an "uttering and putting off," as well as a "tendering," if the counterfeit coin be offered in payment, though it be refused by the person to whom it is offered.5

§ 753. The presumption to be drawn from other attempts to pass counterfeit coin, or its possession on the person, has been already noticed."

§ 754. If the coin forged be a common coin, legal in the United States, it is not necessary to prove that there is an original which the forged coin counterfeits." § 755. A genuine sovereign reduced in weight by filing off nearly all the original milling, and fraudulently making a new milling, is a "false and counterfeit coin."8

1 R. v. Franks, 2 Leach, 644. Supra, 8 706.

2 R. v. Page, 8 C. & P. 122, 1857, Lord Abinger, C. B. Mr. Greaves properly holds that R. v. Page cannot be sustained in reason; 1 Russ. on Cr. 126; and by Alderson, B., in R. v. Ion, 2 Den. C. C. 475, 1852, it is said to be overruled. See Anon., 1 Cox C. C. 250, 1845; R. v. Heywood, 2 C. & K. 352, 1847. Supra, ?? 706, 708.

3 State v. Beeler, 1 Brev. 482, 1805. 1 Cox C. C. 250, 1845.

R. v.

Guilty knowledge to be

inferred from facts.

Existence of genuine

original sary to be proved.

not neces

Fraudunution is coining.

lent dimi

POINTS REQUESTED FOR THE DEFENCE IMPROPERLY REFUSED, AND ERRONEOUS CHARGES.

Reasonable Doubt. Refusal to Charge.

Defendant requested the court to charge: "That the jury should carefully examine the whole of the testimony, and that if upon the whole evidence the minds of the jury are left in a state of doubt and uncertainty, so that they cannot reasonably say that the defendant is guilty, they should acquit him." Refused. Held error. Elmore v. State, 92 Ala. 51, 1890.

An Intention to Defraud Some One Must be Present. Defendant requested the court to instruct the jury that before they could find him guilty they must find that he intended to defraud some one. Refused. Held error. State v. Warren, 109 Mo. 430, 1891.

Where Paper Uttered Could Not Deceive One of Reasonable Intelligence.

Defendant also requested the following instruction: "The court instructs the jury that, although you may believe from the evidence that the defendant made, forged, and counterfeited the check introduced and read in evidence, and that the defendant when he made, forged, and counterfeited said check read in evidence, intended to make, forge, and counterfeit a check to resemble and be like a genuine check of the said Thomas T. Shamke, and that he attempted to pass said check as a true and genuine check of the said T. T. Shamke and with the intent to injure and defraud, yet if the jury further believe from the evidence that said check so made and read in evidence upon its face had no resemblance to a true and genuine check of Thomas T. Shamke, and that said check would not deceive or mislead a person of ordinary understanding, then there is no forgery in this case, and the jury will find the defendant not guilty." Refused. Held error. State v. Warren, 109 Mo. 430, 1891.

Where Defendant Thought He Had Authority.

It was held error for the court not to have instructed the jury in accordance with art. 441, Texas Penal Code, to the effect that if the defendant in making the order claimed to be forged, if he did make it, acted under an authority which he had good reason to believe and actually did believe to be sufficient, he was not guilty of forgery, though the authority was in fact insufficient and void. Sweet v. State, 28 Tex. App. 222, 1889. Williams v. State, 24 Tex. App. 342, 1887. Supra, & 695.

In the State of Texas defendant requested the court to charge: "That if previous to signing K.'s name to the note defendant sent H. to ask K. for authority to use his name, and that on returning H. told him he had seen K. and it was all right,' but to give K. notice 'when they did so,' and that, acting on such message, defendant, either alone or with H., executed the note, believing that he had authority to do so, they could not find defendant guilty." Refused. Held to be error. McCay v. State, 32 Tex. Cr. 233, 1893.

Where an attorney was indicted for forging a check by indorsing the name of the payee, and defended by claiming authority to indorse from the husband of the payee, it was held error for the court to refuse to charge: "That if the jury believed that M. S. directed or told Mr. Loew (the defendant) to sign that check in the name of his wife, and Loew in good faith believed that S. had the authority, they should find the defendant not guilty." People v. Loew, 19 N. Y. Sup. 360, 1892. Supra, 669.

Swindling is Not Forgery.

It was held error for the court to refuse to charge as requested: "If you believe from the testimony that the note in evidence was actually signed by Lazarus Smith (the prosecutor) by his making his mark thereto, and that Wells had authority from Smith to so sign his name, and also had authority from the witness to the note (Griffin) to sign his name, and that the note in evidence was the note to sign, then I charge you that you cannot convict the defendant. If you believe that the note in evidence was signed by Lazarus Smith, by making his mark thereto when he believed it was for only twentyfive dollars, when, in fact, it was for fifty dollars, then you cannot convict the defendant of forgery under this indictment." Wells v. State, 89 Ga. 788, 1892.

Alteration Before Signature.

Under the New York Penal Code, & 521, which declares a person to be guilty of forgery "who, knowing the same to be forged or altered, with intent to defraud, utters, offers, disposes of or puts off as true" an instrument or writing, the defendant requested the court to instruct the jury that, if the instrument was altered before it was signed or executed, no conviction could be had under the indictment for uttering a forged paper. The court refused the charge, declaring that it was wholly iminaterial whether the defendant made the change before or after it was signed. On appeal, held error. People v. Underhill, 142 N. Y. 38, 1894.

Alteration as a Matter of Fact Necessary for Conviction.

Where on a trial for altering an order from $3.90 to $13.90 it was proved that the defendant knew that only $3.90 was due him, but it appeared probable that the order was originally drawn for $13.90 by mistake, it was error not to charge that if defendant did not alter the order he must be acquitted, even though he knowingly received ten dollars more than was due him. Bell v. State, 21 Tex. App. 270, 1886.

CHAPTER X.

BURGLARY.

Occupier is to be generally re- VIII. INDICTMENT.

Breaking must be in night-time, POINTS FOR DEFENCE IMPROPERLY

§ 758. BURGLARY, at common law, is the breaking is breaking and entering the dwelling-house of another in the night, with intent to commit some felony within the same, whether the felonious intent be executed or not.'

1 Hale's Sum. 49; 1 Russ. on Cr. State v. Wilson, Coxe, 439, 1793; Cole (6th Am. ed.) 786; 4 Bl. Com. 227; v. People, 37 Mich. 544, 1878; State Com. v. Newell, 7 Mass. 247, 1810; v. Branham, 13 S. C. 389, 1880; Ray