« EdellinenJatka »
to cut down trees, and especially vines, was punished in the same degree as robbery (n). By statute 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 (57), or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or depth of coal (58). 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 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 (59). 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 (60). By statutes
6 Geo. III. c. 36. & 48, and 13 Geo. III. c. 33. wilfully to spoil [*247] or destroy any timber or other trees, roots, shrubs, 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 (61). 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 (62); (n) Ff. 47.7.2.
mitted, shall be liable to yield full compensation to the person or persons damnified by the offence, not only for the damage so done to any of the subjects hereinbefore enumerated, but also for any damage which may at the same time be done by any such offenders to any fixture, furniture, or goods whatever, in any such church, chapel, house, or other of the buildings or erections aforesaid."
By 3, persons damnified by the offence, or the servant in whose charge the injured property was intrusted, must within seven days after the offence has been committed go before a justice of the peace residing within the hundred, and state on oath the name of the offender if known, and submit to an examination touching the offence, and become bound to prosecute the offenders when taken. The action must be commenced within three calendar months after the offence.
By 4, all process in the action must be served on the high constable, who within seven days must give notice thereof to two magistrates of the division, and who may defend or let judgment go by default, as advised.
By5, any inhabitant of the hundred may be a competent witness. By 6, if the plaintiff recovers, the writ of execution is not to be enforced, but the sheriff on receipt of it is to make his warrant to the county treasurer, who is directed to pay the amount. § 7 directs that the high constable's expenses are to be allowed by two justices, and paid by the county treasurer: the whole of such monies are to be levied on the hundred over and above their share of the county rate.
By 8, where the injury does not exceed 301., the parties are to give notice to the high constable of their claim for compensation, who is to exhibit the same to two magistrates in the division, and they are to appoint a special petty session between twenty and thirty days afterwards to determine the claim.
By stat. 7 and 8 Geo. IV. c. 27, all prior Acts relating to actions against the hundred are repealed; and the hundred is now no longer liable in cases of robbery, but only in cases where the damage is done by a riotous assem bly.
(57) Benefit of clergy was restored by stat. 4 Geo. IV. c. 46, and transportation and imprisonment substituted. This Act is now repeal ed by 7 and 8 Geo. IV. c. 27, as also the Acts mentioned in the text.
(58) By statute 7 and 8 Geo. IV. c. 30, 18, maliciously destroying any hop-binds grow. ing on poles in plantations of hops, is a felony liable to transportation for life, or not less than seven years, or imprisonment not exceeding four years, with private or public whipping. And by 5, setting fire to any coal-mine is a capital felony.
(59) The latter part of this Act relating to the damages to which the hundred is liable is repealed by 7 and 8 Geo. IV. c. 27; and see as to the offences mentioned in the text, 9 Geo. IV. c. 31, s. 26.
(60) Repealed. Vide ante, 244, note (45). (61) Vide ante, 233, note (11), where the existing punishments are set forth. The sta tutes mentioned in the text are repealed.
(62) By statute 7 and 8 Geo. IV. c. 27, the
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 (63). 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 shall wilfully and maliciously cut or destroy the same. And these are the principal punishments of malicious mischief (64).
III. Forgery (65), or the crimen falsi, is an offence, which was punished
above is repealed. And by 7 and 8 Geo. IV. c. 30, 6, maliciously causing any water to be conveyed into any mine with intent to damage it, or obstructing any air way, water way, drain, pit, level, or shaft belonging thereto, is punishable as a felony, with transportation for seven years, or imprisonment not exceeding two years, with private or public whipping. By ◊ 7, maliciously destroying or damaging with such intent, any engine or other machines belonging to any mine, or any erections attached thereto, or any bridge, waggon-way, or trunk, connected with the same, is a felony liable to the same punishment as in the last-recited clause.
(63) By statute 7 and 8 Geo. IV. c. 30, 23, maliciously destroying any description of fence whatsoever, or any wall, stile, or gate, is punishable for the first offence with fine not exceeding 51. above the value of the injury done, and with imprisonment not exceeding twelve months, with hard labour and private or public whipping for any subsequent offence.
By 7 and 8 Geo. IV. c. 29, § 40, stealing, or destroying with intent to steal, any live or dead fence, wooden fence, stile, or gate, is subject to a penalty not exceeding 51. above the value of the loss or injury sustained for the first offence, and to hard labour and imprisonment not exceeding twelve months, with whipping for subsequent offences.
And by the same statute, 41, suspected persons found with any tree, or shrub, underwood, live or dead fence, post, pale, rail, stile, or gate, of the value of two shillings, and not satisfactorily accounting for it, are liable to a penalty of 21. above the value of the article found.
The following statutes on this head are repealed by 7 and 8 Geo. iV. c. 27; viz., 13 Ed. I. st. 1, c. 46; 6 Geo. I. c. 16; 9 Geo. III. c. 29; 16 Geo. III. c. 30.
(64) In New-York there has been no need of enactments like most of those last mentioned. See, as to malicious mischief to animals, bridges, dams, monuments, opening letters, &c. 2 R. S. 695.
(65) FORGERY.-We will endeavour to elucidate the nature of, and what constitutes this offence, by considering, 1st, What false making is sufficient; 2dly, With what intent the forgery must be committed; and, 3dly, How far the instrument forged must appear to be genuine. The consideration of what instruments may be the subjects of forgery will follow. See in general 3 Chit. C. L. 2 ed. 1022
to 1044, a.
1. WHAT FALSE MAKING IS SUFFICIENT.
It is not necessary that the whole instrument should be fictitious. Making a fraudulent insertion, alteration, or erasure, in any material part of a true document, by which another may be defrauded; the fraudulent application of a false signature to a true instrument, or a real signature to a false one; and the alteration of a date of a bill of exchange after ac ceptance, by which its payment may be accelerated, are forgeries. 1 Hale, 683, 4, 5. 4 T. R. 320. Altering a bill from a lower to a higher sum is forging it; and a person may be indicted on the 7 Geo. II. c. 22, for forging such an instrument, though the statute has the word alter as well as forge; and in the same case it was held no ground of defence, that before the alteration it had been paid by the drawer and re-issued. R. & R. C. C. 33. 2 East, P. C. 979. S. C. So altering a banker's one pound note, by substituting the word ten for the word one, is a forgery, Russ. & Ry. C. C. 101; see 2 Burn J. 24th edit. 491. and 2 East P. C. 986. If a note be made payable at a country banker's, or at their banker's in London, who fails, it is forgery to introduce a piece of paper over the names of the London bankers, who have so failed, containing the names of another banking-house in London. Russ. & Ry. C. C. 164. 2 Taunt. 328. 2 Leach, 1040, S. C. and see 2 East P. C. 856. 2 Burn J. 24th edit. 492. S. C. Expunging an indorsment on a bank note with a liquor unknown, has been holden to be an erasure within 8 & 9 W. III. c. 20. 3 Pr. Wms. 419. The instrument must, in itself, be false; for if a man merely pass for another, who is the maker or indorser of a true instrument, it is no forgery, though it may be within the statute of false pretences. 1 Leach, 229. The instrument counterfeited must also bear a resemblance to that for which it is put forth, but need not be perfect or complete: it is sufficient if it is calculated to impose on mankind in general, though an individual skilled in that kind of writings would detect its fallacy. Thus, if it appears that several persons have taken forged bank notes as good ones, the offender will be deemed guilty of counterfeiting them, though a person from the bank should swear that they would never impose on him, being, in several respects, defective. 2 East, P. Č. 950. And it has been holden that a bank note may be counterfeited, though the paper contains no water-mark, and though the word pounds is omitted, that word being supplied by the figures in the margin. 1 Leach, 174. For it was said that in forgery there need not be an exact resemblance, but it is
by the civil law with deportation or banishment, and sometimes with death (o). It may with us be defined, at common law, to be," the frau
(0) Inst. 4. 18. 7.
sufficient if the instrument counterfeited be prima facie fitted to pass for the writing which it represents. 1 Leach, 179. As to how far the instrument should appear genuine, and the forging of fictitious names, see infra, Div. III.
II. WITH WHAT INTENT THE FORGERY MUST BE COMMITTED.-The very essence of forgery is an intent to defraud; and, therefore, the mere imitation of another's writing, the assumption of a name, or the alteration of a written instrument, where no person can be injured, does not come within the definition of the offence. Most of the statutes expressly make an intent to defraud a necessary ingredient in the crime; whether it existed or not, is a question for the jury to determine. But it is in no case necessary that any actual injury should result from the offence. 2 Stra. 747. 2 Lord Raym. 1461. The question as to the party's intent, is for a jury, and such jury ought to infer an intent to defraud the person who would have to pay the instrument, if it were genuine, although, from the manner of executing the forgery, or from that person's ordinary caution, it would not be likely to impose on him, and although the object was general, to defraud whoever might take the instrument, and the intention of defrauding, in particular, the person who would have to pay the instrument, if genuine, did not enter into the prisoner's contemplation. R. & Ry. C. C. 291, and see Id. 769.
III. HOW FAR THE INSTRUMEMT FORGED MUST APPEAR GENUINE.-It is of no consequence whether the counterfeited instrument be such as if real would be effectual to the purpose it intends, so long as there is a sufficient resemblance to impose on those to whom it is uttered. Whether the fraud be effected on the party to whom an instrument is addressed, or whose writing is counterfeited, or on a third person who takes it upon the credit it assumes, is immaterial. Thus, to counterfeit a conveyance with a wrong name, has been deemed within 5 Eliz. c. 14, though it would have been ineffectual if genuine. 1 Keb. 803. 3 Keb. 51. The fabrication of an order for payment of a sailor's prize-money is forgery, as we have already seen, though it be invalid as wanting the requisites required by statute. 2 Leach, 883. The offence of uttering a forged stamp will be complete, though at the time of uttering, that part which in a genuine stamp would in terms specify the amount of duty, is concealed, and in fact cut out, and though that part where the papers were entire, did not contain any thing specifying the amount of duty, provided the parts left visible are like a genuine stamp. Russ. & Ry. C. C. 229. 212. We have also seen, that the forgery of an instrument, as a last will, comes within the statutes, although the supposed testator is living. 1 Leach, 449. And it may be collected from a number of
cases, that forgery in the name of a person who has no real existence, is as much criminal as if there was an intent to defraud an individual whose writing is counterfeited. 1 Leach, 83. Thus the making of a bill of exchange is within the acts, though all the names to it are fictitious. 2 East P. C. 957. To counterfeit a power of attorney, as by the administratrix and daughter of a seaman who died childless, is capital. Fost. 116. Nor is it necessary that any additional credit should be obtained by using the fictitious name. 1 Leach, 172, and see R. & Ry. C. C. 75. 90. 209. 278. So to put a fictitious name on a bill indorsed in blank, in order to circulate it with secrecy, is a similar offence. 1 Leach, 215. And indeed it seems that it is not necessary to constitute forgery, that there should be an intent to defraud any particular person, and a general intent to defraud will suffice. 3 T. R. 176. 1 Leach, 216, 17, in notis. But to support a charge of forgery, by subscribing a fictitious name, there must be satisfactory evidence on the part of the prosecutor that it is not the party's real name, and that it was assumed for the purpose of fraud in that in stance. Russ. & Ry. C. C. 260. Assuming and using a fictitious name, though for pur poses of concealment and fraud, will not amount to forgery, if it were not for that very fraud, or system of fraud, of which the forgery forms a part. Russ. & Ry. C. C. 260. If there is proof of what is the prisoner's real name, it is for him to prove that he used the assumed name, before the time he had the fraud in view, even in the absence of all proof as to what name he had used for several years, before the fraud in question. Russ. & Ry. C. C. 278, and see Russ. & Ry. C. C. 405. 3 Brod. & Bing. 228. S. C. 2 Burn. J. 24th edit. 510. Russ. & Ry. C. C. 463. S. C.
A defect in the stamp will not avail the pri soner, 1 Leach, 257, 8, in notis. 2 East P. C. 955; and it has even been decided that, if there be no stamp at all on a counterfeit promissory note, it may still be forgery. 2 Leach, 703.-though this case seems to go too far; for how can a promissory note, without the appearance of a stamp, have such a similitude to a genuine instrument as is requisite to constitute forgery? But though the validity of the instrument if real is thus immaterial, it must not appear on its face, so that no one of common understanding would give it credit. Thus, it will not be forgery to fabricate a will for land, as attested by only two witnesses. 2 East P. C. 953. Nor is it felony to counterfeit a bill of exchange for a sum more than twenty shillings and less than five pounds, without mentioning the abode of the payee and being attested by a subscribing witness; as such an instrument is by 17 Geo. III. c. 30, absolutely void. 1 Leach, 431. These cases will sufficiently explain the law on this subject.
dulent making or alteration of a writing to the prejudice of another man's right;" for which the offender may suffer fine, imprisonment, and pillory (66). And also by a variety of statutes, a more severe punishment is inflicted on the offender in many particular cases, which are so multiplied of late as almost to become general. I shall mention the principal
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 his ears cut off, and his nostrils slit, and seared; by forfeiture to the crown of the profits of his lands, and by perpetual imprisonment. For any forgery relating to a term of years, or  annuity, bond, obligation, 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 imprisonment: 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) (67); of bills of credit issued from the ex
Stat. 8. 9 W. III. c. 20, ◊ 36. 11 Geo. I. c. 9. 12 Geo. I. c. 82. 15 Geo. II. c. 18. 13 Geo. III.
(66) The punishment of pillory is now taken away by 56 Geo. III. c. 138.
Besides this punishment, the defendant is holden incapable of being examined as a witness till restored to competence by the king's pardon. Com. Dig. Testmoigne A. 3, 4. And by 12 Geo. I. c. 29, in case persons convicted of forgery, shall afterwards practise as attor nies, solicitors, or law agents, the court where they practise shall examine the matter in a summary way, and order the offender to be transported for seven years.
(67) As to the further provisions relative to this description of forgery, vide 41 Geo. III. c. 39; 45 Geo. III. c. 89; 52 Geo. III. c. 138, and 1 Geo. IV. c. 92, under which last Act relating to bank notes, by ◊ 11, persons engraving, cutting, etching, scraping, or by other means marking upon any plate of copper, brass, steal, &c., any engraving, &c., for the purpose of producing a print or impression of all or any part of a bank note, or a blank bank note of the said governor and company with out their authority, or having unlawfully in their possession any such plate, &c., or wilfully disposing of any such blank bank note, or part of such bank note as aforesaid, are liable to transportation for fourteen years.
By 2, persons unlawfully cutting, etching, &c. or procuring, &c., or assisting in making upon any plate of copper, brass, steel, &c., any line work, as or for the groundwork of a promissory note or bill of exchange, which shall be intended to resemble the groundwork of a bank note of the governor and company, or any device, the impression from which shall contain the words "Bank of England" in white letters upon a black or dark ground, VOL. II.
with or without white lines therein, or shall contain in any part thereof the numerical sum or amount of such note or bill in black and red register work, or shall shew the reversed contents thereof, or shall contain any words, figures, characters, or patterns intended to resemble the ornaments on such note, or any word, figure, &c. in white on a black ground, intended to resemble the amount in the mar gin of such note, or using such plate or other instrument intended to represent the whole or part of any such note, or knowingly having in their possession any such plate, &c., or disposing of any such paper impressions, or knowingly having such in their custody, are guilty of felony, and liable to transportation for fourteen years.
The bank having preferred one indictment for uttering a forged note, and another for having the same in possession, and having elected to proceed on the latter charge, it was held, that although facts sufficient to support the capital charge were made out in proof, an acquittal for the minor offence ought not to be directed, because the whole of the minor charge was proved, and did not merge in the larger. R. & R. C. C. 378. On an indictment for forging a bank note, the cashier who signed "for the governor and company of the bank of England," is a competent witness to prove the forgery; for he is not by such a sig. nature personally responsible for the payment of the note; 1 Leach, C. C. 311, R. and R. C. C. 378; but he is not an essential witness, as his handwriting may be disproved by other witnesses. Rex v. Hughes, and Rex v. M'Guire, 2 East P. C. 1002; I Leach, C. C. 311.
What circumstances are sufficient to con
chequer (q) (68); of South-sea bonds, &c. (r); of lottery tickets or order (s) (69); of army or navy debentures (t); of East India bonds (u); of writings under the seal of the London, or royal exchange assurance (w) (70) of the hand of the receiver of the pre-fines (x) (71); or of the accountant-general and certain other officers of the court of chancery (y) (72); of a letter of attorney or other power to receive or transfer stock or annuities; and on the personating a proprietor thereof, to receive or transfer such annuities, stock, or dividends (z) (73); also on the personating, or procuring to be personated, any seaman or other person, entitled to wages or other naval emoluments, or any of his personal representatives; and the taking, or procuring to be taken, any false oath in order to obtain a probate, or
(q) See the several acts for issuing them.
(7) Stat. 9 Ann. c. 21. 6 Geo. I. c. 4 & 11. 12 Géo. I. c. 32.
(s) See the several acts for the lotteries.
stitute the offence of uttering, which must be attended with a guilty knowledge, and what proofs required to substantiate it, may be deduced from the following abstract of decided cases, which have been selected from among many others. Where a prisoner, charged with uttering a forged note to A. B., knowing it to be forged, gave forged notes to a boy who was not aware of their being forgeries, and directed the boy to pay away the note described in the indictment at A. B.'s, for the purchase of goods, and the boy did so, and brought back the goods and the change to the prisoner; it was held by the twelve judges, an uttering by the prisoner to A. B. Rex v. Giles, Car. C. L. 191. So the delivering a box, containing, among other things, forged stamps to the party's own servant, that he might carry them to an inn to be forwarded by a carrier to a customer in the country, is an uttering. And if the delivery be in one county, and the inn to which they are carried by the servant in another, the prisoner may be indicted in the for
The offence of uttering a forged stamp will be complete, although at the time of uttering, certain parts of the stamp are concealed; all the parts that are visible being like those of a genuine stamp. Rex v. Collicott, R. and R. C. C. 212. It is not necessary that a promissory note should be negotiable, in order to be a promissory note within the 2 Geo. II. c. 25, so as to be the subject of an indictment for forging or uttering it. Rex v. Box, id. 300. An indictment on 45 Geo. III. c. 89, for uttering forged notes, need not state to whom they were disposed, is sufficient to state that the prisoner disposed of the notes with intent to defraud the bank, he knowing them at the time to be forged, and although the person to whom they were disposed purchased them, as and for forged notes, and purchased them on his own solicitation, and as agent for the bank, for the purpose of bringing the prisoner to punishment. Rex v. Holden, id. 154. Uttering a forged order for the payment of money under a false representation, is evidence of knowing it to be forged. Id. 169. To prove the guilty knowledge of an utterer of a forged bank note, evidence may be given of the prisoner's having previously uttered
(w) Stat. 6 Geo. I. c. 18.
(z) Stat. 8 Geo. I. c. 22. 9 Geo. I. c. 12. 31 Geo 11. c. 22, ◊ 77.
other forged notes, knowing them to be forged. Rex v. Whiley, 2 Leach, C. C. 983. So upon an indictment for uttering a forged note, evidence is admissible of the prisoner's having, at a former period, uttered others of a similar manufacture; and that others of similar fabrication had been discovered on the files of the bank with the prisoner's handwriting on the back of them, in order to shew the prisoner's knowledge of the note mentioned in the indictment being a forgery. Rex v. Ball, R. and R. C. C. 132. But in order to shew a guilty knowledge on an indictment for uttering forged bank notes, evidence of another uttering, subsequent to the one charged, is inadmissible, except the latter uttering was in some way connected with the principal case, or it can be shewn that the notes were of the same manufacture; for only previous, or contemporaneous acts, can shew, quo animo, a thing is done. Rex v. Taverner, Car. C. L. 195.
So, if a second uttering be made the subject of a distinct indictment, it cannot be given in evidence to shew a guilty knowledge in a former uttering. Rex v. Smith, 2 C. and P. 633. The person whose name is forged was formerly held to be not a competent witness to prove the forgery. Rex v. Russell, 1 Leach, C. C. 8. But he has recently been made competent by the 9 G. IV. c. 32, s. 2.
(68) See also the 48 Geo. III. c. 1. 58 Geo. III. c. 23. s. 38. & R. & R. C. C. 67. (69) This is now a clergyable felony, 4 Geo. IV. c. 60. s. 11.
(70) See 6 Geo. I. c. 4. 39 Geo. III. c. 83. s. 22.
(71) See the 52 Geo III. c. 143. 2 East P. C. 911. 42 Geo. III. c. 54.
(72) Forging a writing purporting to be an office copy of a report or certificate of the accountant-general that money has been paid into the bank, or forging an office copy of a certifi cate or receipt of one of the cashiers of the bank, is within this act. 1 Leach, 61. 2 East P. C. 898.
(73) See also the 33 Geo. III. c. 30. further providing against forgeries and frauds in the transfer of stock.