(302) (303) Seventh count. Same as second, with intent to defraud J. S. (304) Attempt to pass counterfeit bank note, under Ohio stat. (307) Altering generally. (308) Altering, &c., averring specially the alterations. (309) Same in another shape. (310) Uttering certificate as forged. (311) Uttering certificate as altered. (312) Forging a treasury note. (313) Causing and procuring, &c. (314) Altering same. (315) Passing note, &c. (316) Same in another shape. (317) Feloniously altering a bank note. (318) Having in possession forged bank notes without lawful excuse, knowing the same to be forged. (319) Uttering and passing a counterfeit bank bill, under s. statutes of Vermont. (320) Uttering forged order, under Ohio stat. (321) Another form for same. 4, c. 96 of Revised (322) Uttering a forged note purporting to be issued by a bank in another State, under the Vermont statute. (323) Having counterfeit bank note in possession under Ohio statute. (327) Having in possession forged note of United States Bank, under the Vermont statute. (328) Forgery, &c., in New York. Having in possession a forged note of a corporation. (329) Second count. Uttering the same. (330) Forging an instrument for payment of money, under the New York (331) statute. Second count. Uttering the same. (332) Having in possession forged notes, &c., with intent to defraud, under the New York statute. (333) Forgery of a note of a bank incorporated in Pennsylvania, under the Pennsylvania statute. (334) Second count. Passing same. (335) Forgery of the note of a bank in another State, under the Virginia statute. (336) For making, forging, and counterfeiting, &c., American coin, under act of Congress. (337) (338) (339) (340) Fifth count. Same, specifying party to be defrauded. (341) Counterfeiting half dollars, under act of Congress. (342) Passing counterfeit half dollars, with intent to defraud an unknown person, under act of Congress. (343) Second count. Same, with intent to defraud R. K. (344) Having coining tools in possession, at common law. (345) Making, forging and counterfeiting, &c., foreign coin, quarter dollar, under act of Congress. (347) Passing, uttering and publishing counterfeit coin of a foreign country, under act of Congress, specifying party to be defrauded. (348) Debasing the coin of the United States, by an officer employed at the mint, under act of Congress. (349) Fraudulently diminishing the coin of the United States, under act of Congress. (350) Uttering a counterfeit half guinea, at common law. (351) Passing counterfeit coin similar to a French coin at common law. (352) Counterfeiting United States coin, under the Vermont statute. (353) Having in possession coining instruments, under the Rev. stats. of Massa chusetts, c. 127, s. 18. (354) Having in possession ten counterfeit pieces of coin, with intent to pass the same, under Rev. stats. of Mass., c. 127, s. 15. (355) Having in custody less than ten counterfeit pieces of coin, under Rev. stats. of Massachusetts, § 16. (356) Uttering and publishing as true a forged promissory note. Rev. stats. of Mass., ch. 127, § 2. (357) For forging a promissory note. Rev. sts. of Mass., ch. 127, § 1. Rev. sts. of (359) For having in possession at the same time, ten or more counterfeit bank (360) Passing a counterfeit bank bill. Rev. sts. of Mass., ch. 127, § 6. (362) Making a tool to be used in counterfeiting bank notes. Rev. sts. of (363) Having in possession a tool to be used in counterfeiting bank notes, with intent to use the same. Rev. sts. of Mass., ch. 127, § 9. (364) Counterfeiting current coin. Rev. sts. of Mass., ch. 127, § 15. (365) Uttering and passing counterfeit coin. Rev. sts. of Mass., ch. 127, § 16. (366) Coining, &c., under the North Carolina statute. (264) General frame of indictment at common law. (a) THAT, &c., on, &c., falsely and fraudulently did forge and counterfeit (b) (and cause and procure to be forged and counterfeited), (c) a certain promissory note for the payment of money, purporting to be made by one A. B., payable on demand to one C. D.,(d) the tenor of which said forged and counterfeited promissory note is as follows, that is to say: (here set out the instrument in the manner prescribed in note), (e) with intent to defraud the said A. B.,(f) (to the great damage of the said A. B.), (g) against, &c. (Conclude as in book 1, chap. 3.) (a) This form is introduced, not because it can ever be of use as a precedent, the common law remedy having been absorbed by statutes, but in order to place in a more regular shape the necessary notes. For the ground-work of the latter, I have depended on Mr. Starkie (C. P. 106), adding at large the American and the later English authorities. (b) "It is sufficient to allege that the defendant forged and counterfeited, though it is usual to aver that he did falsely forge and counterfeit, for the adverb is sufficiently implied in the former words; Sty. 12; 1 Str. 19; East P. C. 985; R. v. Mariot, 2 Lev. 221; R. v. Dawson, 1 Str. 19. In Elsworth's case, coram Willes, York Lent Assizes, 1780, East P. C. 986, the indictment stated that the said T. E., the said bill of exchange did feloniously alter and cause to be altered, by falsely making, forging and adding the letter y to the word eight in the bill mentioned, whereby, &c. The second count alleged, that certain persons unknown altered the bill, and charged the defendant with uttering and publishing the bill as true, knowing it to be forged. The words of the statute on which the indictment was founded (2 Geo. II. c. 25, s. 1), are, 'If any person shall falsely make, forge or counterfeit.' It was objected, in arrest of judgment, that the indictment merely charged that certain persons unknown did alter, by falsely making, &c., and did not charge, in the words of the act, that they falsely made, forged, &c., and that the word alter, was not used in the statute. But the judges held that the indictment was good, and that there was no difference in substance or in the nature of the charge, whether the indictment were for feloniously altering, by falsely making and forging, or for feloniously making and forging, by falsely altering. In the case of King v. Bigg, 3 P. Wms. 419, the indictment alleged that the defendant feloniously erased an indorsement from a bank note; the jury found that the defendant had expunged the inscription, by means of some unknown liquor, and the judges held that the prisoner was guilty. The majority were of this opinion, but the case involved many other points, and the prisoner was afterwards pardoned on condition of transporting himself; Str. 19;" Stark. C. P. 108. "In consideration of law, every alteration of an instrument amounts to a forgery of the whole. In Dawson's case, it was holden by ten judges, that the alteration of the figure 2 in a bank note, to 5, was a forging of a bank note; East P. C. 978;" Stark. C. P. 108. See Wh. C. L. 1418-45. 8 The indictment in Teague's case; East P. C. 979; for making, forging and counterfeiting a bill of exchange, under the stat. 7 Geo. II. c. 22, was holden to be supported by proof, that the defendant had altered a bill of exchange for the payment of £10 into £50, both in words and figures. It was objected, that the defendant ought to have been charged with altering the genuine bill, since the stat. 7 Geo. II. c. 22, makes it a distinct offence to alter; but the judges, on the authority of Dawson's case, held that the conviction was proper, and that every alteration of a true instrument, for such a purpose, made it when altered, a forgery for the whole instrument; see also State v. Hitchens, 2 Harringt. 527; Com. v. Ladd, 15 Mass. 526; State v. Waters, 3 Brev. 507; Com. v. Hayward, 10 Mass. 34. But in cases where a genuine note or instrument has been altered, it is usual to allege the alteration in one count of the indictment; see East P. C. 980; R. v. Harrison; R. v. Elsworth, there referred to. It is not sufficient to aver, that the defendant forged or caused to be forged, for it is not certain and positive; 1 Salk. 342; 5 Mod. 137; Holt R. 345. An indictment which charges a prisoner with the offences of falsely making, forging and counterfeiting, of causing and procuring to be falsely made, forged and counterfeited, and of willingly acting and assisting in the said false making, forging and counterfeiting, is a good indictment, though all of these charges are contained in a single count; and as the words of the statute have been pursued, there being a general verdict of guilty, judgment ought not to be arrested on the ground that the offences are distinct; Rasnick v. Com., 2 Va. Cases 356; State v. Houseall, 1 Rice's Dig. 346; see Wh. C. L. § 390. But where two distinct offences, requiring different punishments, are alleged in the same count, as where the forging of a mortgage, and of a receipt indorsed thereon, are both charged in the same count, and the defendant be convicted, the judgment will be arrested; People v. Wright, 9 Wend. 193. (c) The allegation in brackets, though rarely necessary, is not duplicity when introduced; see last paragraph. It is not necessary, as it seems, to go on to allege by what means the "causing and procuring" was brought about; Brown v. Com., 2 Leigh 769. (d) It is essential that the purport of the instrument should be properly described, so as to bring it within the statute. The authorities on this point are collected in the next note. (e) In considering the particular instrument set forth will be considered, 1. In what manner it should be set forth. 2. How it should be shown to be the instrument (supposing it to be genuine), the forging of which is prohibited. 1. The instrument set forth may be prefaced by the words, "to the tenor following," or "in these words," or "as follows," or "in the words and figures following:" for though the setting out an instrument by the tenor, R. v. Drake, 3 Salk. 224; Holt R. 347, 349, 350, 425; 11 Mod. 95; which imports a true copy, is the most technical mode, yet it has been holden that the words "as follows," are equivalent to the words, "according to the tenor following," or "in the words and figures following," and that, if under such an allegation, the prosecutor fail in proving the instrument verbatim as laid, the variance will be fatal; R. v. Powell, 1 Leach 110; 2 Bl. Rep. 787; East P. C. 97; Wh. C. L. § 307. And unless the indictment profess, by these or similar expressions, to set out a copy of the instrument in words and figures, it will be vicious; Ibid. Lyon's case, Leach 696; Dougl. 193, 194; 2 Leach 660, 661; 6 East 418 to 426; 11 Mod. 96, 97; Holt 347, 348, 349, 350, 425; 1 Chit. C. L. 234; 3 Salk. 225; Stam. 181; ib. Com. v. Stevens, 1 Mass. 203; State v. Street, Ty. 158; People v. Franklin, 3 Johns. Cas. 299; see State v. Bradley, 1 Hay. 403; Com. v. Searle, 2 Binn. 332; State v. Coffey, N. C. T. R. 272; State v. Carr, 5 N. Hamp. 367; Com. v. Bailey, 1 Mass. 62; U. S. v. Britton, 2 Mason 462; Com. v. M'Atee, 8 Dana's Ky. R. 29; Fost. 194; R. v. Holland, 5 T. R. 623; 1 Stark. C. P. 73; Cowp. 672; 5 T. R. 623; 3 Inst. 41; State v. Gustin, 2 South. R. 749; State v. Stephens, Wright's Ohio R. 73; State v. Farrand, 3 Halst. 333; R. v. Mason, 2 East 180; Com. v. Bailey, 1 Mass. 62; Com. v. Stow, 1 Mass. 54; Com. v. Gillespie, 7 S. & R. 469; 2 East P. C. 976; R. v. Hart, 1 Leach 145; R. v. Paul, 1 Leach 77; Cowp. 672; Com. v. Sweney, 10 S. & R. 173; Com. v. Parmenter, 5 Pick. 279; Dougl. 193, 194; State v. Waters, Const. R. 169; Com. v. Kearns, 1 Va. Cases 109; 2 Bla. Rep. 787; State v. Wimberly, 3 M'Cord 190; Dougl. 300; State v. Carter, Conf. N. C. R. 210; State v. Molier, 1 Dev. 263; 2 Leach 624; Dougl. 97; State v. Twitty, 2 Hawks 487; 1 Marsh. 522; State v. Handy, 20 Maine 81; People v. Warner, 5 Wend. 271; Dougl. 193, 194; Com. v. Riley, Thacher's C. C. 67; Hoffman v. Com., 6 Rand. 685; U. S. v. Hinman, 1 Bald. 292; State v. Showley, 5 Hay. 256; State v. Calvin, &c., Charlt. 151; Com. v. Buckingham, Thacher's C. C. 29; State v. Twitty, 2 Hawks 248; Ohio v. M'Millen, 5 Ohio 269. An accurate copy, as in Hunter's case, Leach 721; Mason's case, Leach 548; of the instrument, in words and figures, R. v. Powell, 1 Leach 90; Hart's case, Leach 172; must then be set forth, to enable the court to see that it is one of those instruments, the false making of which the law considers to be a forgery; Lyon's case, 1 Leach 696; Mason's case, East P. C. 975; Gilchrist's case, Leach 753. In indictments for forging particular stamps which the legislature has directed to be used, it appears to be unnecessary to give any particular description of the stamp; see Palmer's case, East P. C. 893; Collicot's case, 4 Taunt. 300; a reason which applies with equal force to indictments for libels and for the sale of lottery tickets; Com. v. Gillespie, 7 S. & R. 469; and for the sending of threatening letters; R. v. Lloyd, East P. C. 976. Sewing to the parchment on which the indictment is written, impressions of forged notes taken from engraved plates, is not a regular mode of setting out the notes in the indictment; R. v. Warshaner, 1 Mood. C. C. 656; R. v. Harris, R. v. Moses, R. v. Balls, 7 C. & P. 429. Wh. C. L. § 306, 1468., "In setting forth the tenor of an instrument, a mere variance of a letter will not vitiate the indictment, provided the sense be not altered by changing the word mis-spelt into another of a different meaning. Thus (R. v. Hart, Leach 172), in an indictment for forging a bill of exchange, the tenor was "value received;" the bill proved in evidence was for value reicevd, and the judges (De Grey C. J., and Willes J., were absent), East P. C. 978; upon the reserved question were of opinion, that the variance was not fatal, since it did not change the word into another. So in an indictment for perjury, R. v. Beech, Leach 137; 2 Hawk. c. 46, s. 190; it was assigned for perjury, that the defendant had sworn that he undertood and believed, in the affidavit he swore, that he understood and believed. Upon a motion for a new trial, Ld. Mansfield, C. J., said: "We have looked into all the cases on this subject, some of which go to a great length of nicety indeed, particularly the case in Hutton, where the word indicari was written for indictari; but that case is shaken by the doctrine laid down in Hawkins. The true distinction seems to be taken in the Queen v. Drake, Salk. 660, that where the omission or addition of a letter does not change the word, so as to make it another word, the variance is not material; R. v. Beech, Leach 158; see Salk. 660; R. v. Bear, Carth. 408; Holt R. 350; Cowp. 229; R. v. Mag, Dougl. 193. In Oldfield's case, cor. Bayley J. v. Durham, Sum. Ass. 1811, and afterwards before the judges, where in setting out the bill it was alleged to be directed to Messrs. M. P. & Co., and the bill on being produced was directed to Messs. M. P. & Co., the r in Messrs. being omitted, the variance was held to be immaterial; see Russell 1482;" Stark. C. P. 110. In the same way, "Keen" for "Keene," and "promise" for "promised," have been held immaterial; Com. v. Riley, Thatcher's C. C. 67; Com. v. Parmenter, 5 Pick 279. But the omission of "evening" after the word "Tuesday," was held fatal; Com. v. Buckingham, Thatcher's C. C. 29. The most severe application of the rule is in Com. v. Gillespie, 7 S. & R. 469, where "Burrall" was held a fatal departure from "Burrill." Wh. C. L. § 606-10. An indictment for forgery, alleging the word birch to have been altered to batch, by erasing the letters irc and inserting the letters atc, is supported by evidence of the erasure of it and substitution of at; State v. Rowley, Brayt. 76. Where the indictment charged that Joseph G. Fogg, the defendant, did feloniously and fraudulently forge and make a certain writing obligatory, as follows, that is to say, &c.; but the instrument set out purported on its face to be executed by James G. Fogg and Joseph G. Fogg, the defendant, it was held that there was no repugnance in the charge in the indictment; Fogg v. State, 9 Yerg. 392. In Elizabeth Dunn's case, the indictment charged the defendant with forging a promissory note, the tenor of which is as follows, and then set out the note, including the attestation, "Witness, John Whettal," and also the words "Mary Wallace, her mark." The fact was, that the attestation and the subsequent words had been added after the defendant had affixed her mark, and the recorder doubted whether the indictment had been proved, since the note forged by her differed from the tenor set out. But Mr. Baron Perot and Mr. J. Aston were of opinion, that the indictment in this respect was well proved; Leach 68; East P. C. 961. Where an indictment alleged that a forged certificate was signed by Bowling Starke, but the instrument was signed B. Starke, and the signer's true name was Bolling Starke, the variance was held fatal; State v. Waters, 1 Const. Ct. R. 669; Com. v. Kearns, 1 Va. Cases 109. Where an indictment charged that an alleged counterfeit bill was a note, purporting to be a note of the P. & M. Bank of South Carolina, which was the name given by the charter, but the tenor of the note as set forth was, "the President, Directors & Co.," as in the note, it was held that the statement in the note was a mere designation of the persons composing the corporation, who made themselves liable for the payment of the note, and that there was no variance or repugnancy between the tenor and the purport; State v. Calvin, &c., Charlt. 151. But an indictment for forging a writing, describing the same as purporting to be signed by the president and directors of a bank, and setting out the forged writing verbatim, but upon the face of it not appearing to have been by order of the president and directors, is bad; State v. Showley, 5 Hay. 256. If the instrument forged be in a foreign language, it must be set out in that language, and a complete and accurate translation must be set out; see R. v. Szudurskie, 1 Mood. C. C. 419; R. v. Harris, 7 C. & P. 416, 429; R. v. Warshaner, ib. 466. "Where the instrument on which the indictment is founded was destroyed, lost, or in the possession of the defendant before bill found," as was remarked in another place, Wh. C. L. § 311, 657, "it will be sufficient to set forth the substance and effect of the instrument, averring, at the same time, as an excuse for its non-production, its loss, destruction or detention, as the case may be. In such case it will be admissible on trial to give parol evidence of the instrument, and such evidence, if there be no substantial variance, will sustain the indictment; R. v. Haworth, 4 C. & P. 254; R. v. Hunter, ib. 128; People v. Kingsley, 6 Cow. 522; 8 Mass. 110; People v. Badgely, 16 Wend. 53; State v. Parker, 1 Chapman 298; State v. Potts, 4 Halst. 293; Pendleton v. Com., 4 Leigh 694; U. S. v. Britton, 2 Mason 468; Bucher v. Jarrett, 5 Bos. & Pull. 145; Howe v. Hall, 14 East 275. In England, the practice is to give notice to the prisoner to produce the writing at the assize, so that it may be brought before the grand jury. Such notice, however, it would appear from the cases in this country, is not considered necessary wherever the indictment in itself is a notice; Pendleton v. Com., 4 Leigh 694; People v. Kingsley, 2 Cow. 522; State v. Potts, 4 Halst. 293; People v. Badgeley, 16 Wend. 522; Wh. C. L. § 311. Thus, on the trial of an indictment for stealing a bank bill, where the bill is in the defendant's possession, it is not necessary to account for the non-production, the fact of the indictment being found sufficient notice to the defendant to produce; Com. v. Messinger, 1 Binn. 274; People v. Holbrook, 13 Johns. R. 90. So though an indictment for passing counterfeit money purport to set forth the counterfeit note according to its tenor, and contain no averment of its loss or destruction, the production of the note may be dispensed with, upon proof that the same has been mutilated and destroyed by the defendant, and other evidence of its contents may be admitted; State v. Potts, 4 Halst. 26." So it was said in another case, where the note was described as made on the day of May, and the proof was that the forged note was dated on a particular day, a conviction would be sustained notwithstanding the variance, when a satisfactory reason for the omission of a more particular description is given in the indictment; People v. Badgely, 16 Wend. 53. It has been ruled, however, that upon a rule to show cause, the court will not order an attorney of the court to deliver to the state attorney for the inspection of the grand jury, promissory notes suggested to have been forged, which had been delivered to the attorney in the common course of business by his client suspected of committing the forgery; State v. Squires, 1 Tyler's Vt. R. p. 147. Where a forged paper is passed by a prisoner, bearing date in 1828, and immediately after, with the knowledge of the holder, the prisoner alters the date to 1827, and the indictment set forth its tenor, and describes it as dated in 1827, it was held that the paper was proper evidence to go to the jury in support of the indictment, notwithstanding the proof that it bore date in 1828, when passed; Hoffman v. Com., 6 Rand. 685. Whether it be necessary to set out the whole of the forged writing. "In the short report of Smith's case, in the first volume of Salkeld, Salk. 342, Pasch. 2 Ann, it is stated, that the defendant was indicted for forging a deed of assignment of a lease, signed with the mark of one Goddard, cujus tenor sequitur, but set not down the mark as in the assignment; it was objected that without the mark it could be no forgery, and the objection was overruled. But this is a very loose report of the case, which appears to be the same with that reported in the third volume of Salkeld, and by Ld. Raymond, under the title of the Queen v. Goddard, in 3 Salk. 171; Trin. 2 Ann; R. v. Goddard et al., Ld. Raym. 920; R. v. Goddard and Carlton; according to which the defendant was indicted for forging an assignment of a lease, and the tenor was set out; at the bottom of the assignment was the mark of the assignor, but no mark appeared upon the postea; and the whole court held, that since, by the statute of frauds, an assignment must be signed, the want of the mark of the defendant upon the postea, was a fatal defect; but as another indictment had been found against the defendant, the court gave no judgment, but ruled that the defendant should plead to the signing. But Ld. Holt held, that if the indictment had been for forging a deed of assignment (Mr. East, in his Pleas of the Crown 776, cites Salk. 342, and questions this point), and the deed had been set forth without any mark or signature, that might have been good, because signing is not necessary to a deed; for in former times they were sealed only, and not signed; Salk. 342; Pasch. 2 Ann." Where the instrument forged was a bond, purporting to be attested by one A. B., and the indictment charged that the defendant "wittingly and willingly did forge and cause to be forged a certain paper writing, purporting to be a bond, and to be signed by one C. D., with the name of him the said C. D., and to be sealed with the seal of the said C. D.; and the tenor of the bond, with a subscribing witness was set forth, but did not charge that the bond purported to be attested by one A. B., a motion to arrest the judgment on this account was overruled, on the ground that nothing need be averred in the indictment which is not necessary to constitute the offence charged. It is not necessary, it is said, that there should be a subscribing witness to a bond, and if there be one, it is not his sig |