« 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 10 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) ft. 47. 7. 2. mitted, shall be liable to yield full compensa. By $ 8, where the injury does not exceed tion to the person or persons damnified by the 301., the parties are to give notice to the high offence, not only for the damage so done to any constable of their claim for compensation, who of the subjects hereinbefore enumerated, but is to exhibit the same to two magistrates in also for any damage which may at the same the division, and they are to appoint a special time be done by any such offenders to any fix- petty session between twenty and thirty days ture, furniture, or goods whatever, in any such afterwards to determine the claim. church, chapel, house, or other of the buildings By stat. 7 and 8 Geo. IV. c. 27, all prior or erections aforesaid.”
Acts relating to actions against the hundred By 93, persons damnified by the offence, or are repealed; and the hundred is now no long. the servant in whose charge the injured pro- er liable in cases of robbery, but only in cases perty was intrusted, must within seven days where the damage is done by a riotous assem. after the offence bas been committed go before bly. a justice of the peace residing within the hun. (57) Benefit of clergy was restored by stal. dred, and state on oath the name of the offend. 4 Geó. IV. c. 46, and transportation and impri
. er if known, and submit to an examination sonment substituted. This Act is now repeal touching the offence, and become bound to ed by 7 and 8 Geo. IV. c. 27, as also the Acts prosecute the offenders when taken. The ac- mentioned in the text. tion must be commenced within three calen- (58) By statute 7 and 8 Geo. IV. e. 30, 9 dar months after the offence.
18, maliciously destroying any hop-binds grow. By ,9 4, all process in the action must be ing on poles in plantations of hops, is a felony served on the high constable, who within se- liable to transportation for life, or not less than ven days must give notice thereof to two ma- seven years, or imprisonment not exceeding gistrates of the division, and who may defend four years, with private or public whipping. or let judgment go by default
, as advised. And by § 5, setting fire to any coal-mine is By ở 5, any inhabitant of the hundred may a capital felony. be a competent witness. By 9 6, if the plain- (59) The latter part of this Act relating to tiff recovers, the writ of execution is not to be the damages to which the hundred is liable is enforced, but the sheriff on receipt of it is to repealed by 7 and 8 Geo. IV. c. 27; and see make his warrant to the county treasurer, who as to the offences mentioned in the text, 9 is directed to pay the amount. 9 7 directs that Geo. IV. c. 31, s. 26. the high consiable's expenses are to be allow- (60) Repealed. Vide ante, 244, note (45) ed by two justices, and paid by the county (61) Vide ante, 233, note (11), where the treasurer: the whole of such monies are to be existing punishments are set forth. The sta. levied on the hundred over and above their tutes mentioned in the text are repealed. share of the county rate.
(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, fc. 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. It is not necessary that the whole instrument c. 30, Ø 6, maliciously causing any water to should be fictitious. Making a fraudulent inbe conveyed into any mine with intent to da sertion, alteration, or erasure, in any material mage it, or obstructing any air way, water part of a true document, by which another way, drain, pit, level, or shaft belonging there. may be defrauded; the fraudulent application to, is punishable as a felony, with transporta. of a false signature to a true instrument, or a tion for seven years, or imprisonment not ex. real signature to a false one ; and the altera. ceeding two years, with private or public tion of a date of a bill of exchange after acwhipping. By 07, maliciously destroying or ceptance, by which its payment inay be acdamaging with such intent, any engine or celerated, are forgeries. '1 Hale, 683, 4, 5. 4 other machines belonging to any mine, or any T. R. 320. Altering a bill from a lower to a erections attached thereto, or any bridge, wag- higher sum is sorging it ; and a person may gon-way, or trunk, connected with the same, be indicted on the 7 Geo. II. c. 22, for forging is a felony liable to the same punishment as in such an instrument, though the statute has the last-recited clause.
the word alter as well as forge; and in the (63) By statute 7 and 8 Geo. IV. c. 30, ( same case it was held no ground of defence, 23, maliciously destroying any description of that before the alteration it had been paid by fence whatsoever, or any wall, stile, or gate, the drawer and re-issued. R. & R. C. c. 33. is punishable for the first offence with fine not 2 East, P. C. 979. S. C. So altering a bank. exceeding 51. above the value of the injuryer's one pound note, by substituting the word done, and with imprisonment not exceeding ten for the word one, is a forgery, Russ. & Ry; twelve months, with hard labour and private or C. C. 101 ; see 2 Burn J. 24th edit. 491. and public whipping for any subsequent offence. 2 East P. C. 986. If a note be made payable
By 7 and 8 Geo. IV. c. 29, $ 40, stealing, or at a country banker's, or at their banker's in destroying with intent to steal, any live or London, who fails, it is forgery to introduce a dead fence, wooden fence, stile, or gate, is piece of paper over the names of the London subject to a penalty not exceeding 51. above bankers, who have so failed, containing the the value of the loss or injury sustained for the names of another banking-house in London. first offence, and to hard labour and imprison- Russ. & Ry. C. C. 164. 2 Taunt. 328. 2 ment not exceeding twelve months, with whip. Leach, 1010, S. C. and see 2 East P. C. 856. ping for subsequent offences.
2 Burn J. 24th edit. 492. S. C. Expunging And by the same statute, 9 41, suspected an indossment on a bank note with a liquor persons found with any tree, or shrub, un- unknown, has been holden to be an erasure derwood, live or dead fence, post, pale, rail, within 8 & 9W. III. c. 20. 3 Pr. Wms. 419. stile, or gate, of the value of iwo shillings, and the instrument must, in itself, be false ; for not satisfactorily accounting for it, are liable if a man merely pass for another, who is the to a penalty of 21. above the value of the arti- maker or indorser of a true instrument, it is cle found.
no forgery, though it may be within the staThe following statutes on this head are re- tute of false pretences.1 Leach, 229. The pealed by 7 and 8 Geo. iV.c. 27 ; viz., 13 Ed. instrument counterfeited must also bear a re1. st. 1, c. 46; 6 Geo. I. c. 16 ; 9 Geo. III. c. semblance to that for which it is put forth, but 29 ; 16 Geo. III. c. 30.
need not be perfect or complete : it is suffi. (64) In New-York there has been no need of cient if it is calculated to impose on mankind enactments like most of those last mentioned. in general, though an individual skilled in See, as to malicious mischief to animals, that kind of writings would detect its fallacy. bridges, dams, monuments, opening letters, Thus, if it appears that several persons have &c. 2 R. S. 695.
taken forged bank notes as good ones, the of. (65) Forgery. We will endeavour to elu. fender will be deemed guilty of counterfeiting cidate the nature of, and what constitutes this them, though a person from the bank should offence, by considering, Ist, Whal false mak. swear that they would never impose on him, ing is sufficient; 2dly, with what intent the being, in several respects, defective. 2 East, forgery must be committed ; and, 3dly, How P. C. 950. And it has been holden that a far the instrument forged must appear to be bank note may be counterfeited, though the genuine. The consideration of what instru. paper contains no water-mark, and though the ments may be the subjects of forgery will fol. word pounds is omitted, that word being suplow. See in general 3 Chit. C. L. 2 ed. 1022 plied by the figures in the margin. 1 Leach, to 1044, a.
174. For it was said that in forgery there 1. WHAT FALSE MAKING IS SUFFICIENT.- 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, do be, “ the frau
(0) Inst. 4. 18. 7.
sufficient if the instrument counterfeited be cases, that forgery in the name of a person prima facie fitted to pass for the writing which who has no real existence, is as much crimiit represents. Leach, 179. As to how far nal as if there was an intent to defraud an inthe instrument should appear genuine, and the dividual whose writing is counterfeited. 1 forging of fictitious names, see infra, Div. Leach, 83. Thus the making of a bill of er.
change is within the acts, though all the II. With what INTENT THE FORGERY names to it are fictitious. 2 East P. C. 957. MUST BE COMMITTED.—The very essence of To counterfeit a power of attorney, as by the forgery is an intent to defraud ; and, there, administratrix and daughter of a seaman who fore, the mere imitation of another's writing, died childless, is capital. Fost. 116. Nor is the assumption of a name, or the alteration of it necessary that any additional credit should a written instrument, where no person can be be obtained by using the fictitious name. I injured, does not come within the definition of Leach, 172, and see R. & Ry. C. C. 75. 90. the offence. Most of the statutes expressly 209. 278. So to put a fictitious name on a make an intent to defraud a necessary ingre. bill indorsed in blank, in order to circulate it dient in the crime ; whether it existed or not, with secrecy, is a similar offence. 1 Leach, is a question for the jury to determine. But 215. And indeed it seems that it is not neit is in no case necessary that any actual in- cessary to constitute forgery, that there should jury should result from the offence. 2 Stra. be an intent to defraud any particular person, 747. 2 Lord Raym. 1461. The question as and a general intent to defraud will suffice. 3 to the party's intent, is for a jury, and such T. R. 176. I Leach, 216, 17, in notis. But jury ought to inser an intent to defraud the to support a charge of forgery, by subscribing person who would have to pay the instrument, a fictitious name, there must be satisfactory if it were genuine, although, from the manner evidence on the part of the prosecutor that it of executing the forgery, or from that person's is not the party's real name, and that it was ordinary caution, it would not be likely to im- assumed for the purpose of fraud in that in. pose on him, and although the object was ge. stance. Russ. & Ry. C. C. 260. Assuming neral, to defraud whoever Inight take the in- and using a fictitious name, though for purstrument, and the intention of defrauding, in poses of concealment and fraud, will not particular, the person who would have to pay amount to forgery, if it were not for that very the instrument, if genuine, did not enter into fraud, or system of fraud, of which the forgery the prisoner's contemplation. R. & Ry. C. forms a part. Russ. & Ry. C. C. 260. If C. 291, and see Id. 769.
there is proof of what is the prisoner's real III. HOW FAR THE INSTRUMEMT FORGED name, it is for him to prove that he used the MUST APPEAR GENUINE.-It is of no conse- assumed name, before the time he had the quence whether the counterfeited instrument fraud in view, even in the absence of all proof be such as if real would be effectual to the as to what name he had used for several purpose it intends, so long as there is a suffi- years, before the fraud in question. Russ. & cieni resemblance to impose on those to whom Ry. C. C. 278, and see Russ. & Ry. C.C. it is uttered. Whether the fraud be effected 405. 3 Brod. & Bing. 228. S. C. 2 Burn. J. on the party to whom an instrument is ad- 24th edit. 510. Russ. & Ry. C.C. 463. S. C. dressed, or whose writing is counterfeited, or A defect in the stamp will not avail the pri. on a third person who takes it upon the credit soner, 1 Leach, 257, 8, in notis. 2 East P. it assumes, is immaterial. Thus, to counter- C. 955; and it has even been decided that, if feit a conveyance with a wrong name, has there be no stamp at all on a counterfeit probeen deemned within 5 Eliz. c. 14, though it missory note, it may still be forgery. 2 Leach, would have been ineffectual if genuine. 1 703.—Though this case seems to go too far ; Keb. 803. 3 Keb, 51. The fabrication of an sor how can a promissory note, without the order for payment of a sailor's prize-money is appearance of a stamp, have such a similitude forgery, as we have already seen, though it be to a genuine instrument as is requisite to con. invalid as wanting the requisites required by stitute forgery? But though the validity of statute. 2 Leach, 883. The offence of ut- the instrument if real is thus immaterial, it tering a forged stamp will be complete, though must not appear on its face, so that no one of at the time of uttering, that part which in a common understanding would give it credit
. genuine stamp would in terms specify the Thus, it will not be forgery to fabricate a will amount of duty, is concealed, and in fact cut for land, as attested by only two witnesses. 2 out, and though that part where the papers East P. C. 953. Nor is it felony to counterwere entire did not contain any thing specify: feit a bill of exchange for a sum more than ing the amount of duty, provided the parts twenty shillings and less than five pounds, left visible are like a genuine stamp. Russ. without mentioning the abode of the payee & Ry. C. C. 229. 212. We have also seen, and being attested by a subscribing witness; that the forgery of an instrument, as a last as such an instrument is by 17 Geo. III. c. 30, will, comes within the statutes, although the absolutely void. I Leach, 431. These cases supposed testator is living. I Leach, 449. will sufficiently explain the law on this subAnd it may be collected from a number of ject.
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 instances.
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 [*248] 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
9 W. III. c. 20, 636. 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 with or without white lines therein, or shall away by 56 Geo. UI. c. 138.
contain in any part thereof the numerical sum Besides this punishment, the defendant is or amount of such note or bill in black and red holden incapable of being examined as a wit- register work, or shall shew the reversed conness till restored to competence by the king's tents thereof, or shall contain any words, pardon. Com. Dig. Testmoigne A. 3, 4. And figures, characters, or patterns intended to reby 12 Geo. I. c. 29, in case persons convicted semble the ornaments on such note, or any of forgery, shall afterwards practise as attor- word, figure, &c. in white on a black ground, nies, solicitors, or law agents, the court where intended to resemble the amount in the marthey practise shall examine the matter in a gin of such note, or using such plate or other summary way, and order the offender to be instrument intended to represent the whole or transported for seven years.
part of any such note, or knowingly having in (67) As to the further provisions relative to their possession any such plate, &c., or dis. this description of forgery, vide 41 Geo. III. posing of any such paper impressions, or knowc. 39 ; 45 Geo. III. c. 89; 52 Geo. III. c. 138, ingly having such in their custody, are guilty and 1 Geo. IV. c. 92, under which last Act re- of felony, and liable to transportation for fourlating to bank notes, by 0 11, persons engrav. teen years. ing, cutting, etching, scraping, or by other The bank having preferred one indictment means marking upon any plate of copper, for uttering a forged note, and another for hav. brass, steal, &c., any engraving, &c., for the ing the same in possession, and having electpurpose of producing a print or impression of ed to proceed on the latter charge, it was held, all or any part of a bank note, or a blank bank that although facts sufficient to support the note of the said governor and company with capital charge were made out in proof, an ac. out their authority, or having unlawfully in quittal for the minor offence ought not to be their possession any such plate, &c., or wil. directed, because the whole of the minor fully disposing of any such' blank bank note, charge was proved, and did not merge in the or part of such bank note as aforesaid, are lia. larger. R. & R. C. C. 378. On an indict. ble to transportation for fourteen years. ment for forging a bank note, the cashier who
By Ø 2, persons unlawfully cutting, etching, signed " for the governor and company of the &c. or procuring, &c., or assisting in making bank of England,” is a competeni witness to upon any plate of copper, brass, steel, &c., prove the forgery; for he is not by such a sig. any line work, as or for the groundwork of a nature personally responsible for the payment promissory note or bill of exchange, which of the note ; 1 Leach, C. C. 311, R. and R. C. shall be intended to resemble the groundwork C. 378 ; but he is not an essential witness, as of a bank note of the governor and company, his handwriting may be disproved by other wit. or any device, the impression from which shall nesses. Rex v. Hughes, and Rex v. M'Guire, contain the words “ Bank of England” in 2 East P. C. 1002 ; Leach, C. C. 311. white letters upon a black or dark ground, What circumstances are sufficient to con. VOL. II.
chequer () (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 () (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.
Geo. I. c. 32.
(s) See the several acts for the lotteries.
(w) Stat. 6 Geo. I. c. 18.
(z) Slat. 8 Geo. I. c. 22. 9 Geo. I. c. 12. 31 Geo II. c. 22, 77.
stitute the offence of uttering, which must be other forged notes, knowing them to be forged. attended with a guilty knowledge, and what Rex v. Whiley, 2 Leach, C. C. 983. proofs required to substantiate it, inay he de. an indictment for uttering a forged nole, evi. duced from the following abstract of 'decided dence is admissible of the prisoner's having, cases, which have been selected from among at a former period, uttered others of a similar many others. Where a prisoner, charged with manufacture ; and that others of similar fabriuttering a forged note to A. B., knowing it to cation had been discovered on the files of the be forged, gave forged notes to a boy who was bank with the prisoner's handwriting on the not aware of their being forgeries, and direct. back of them, in order to shew the prisoner's ed the boy to pay away the note described in knowledge of the note mentioned in the in. the indictment at A. B.'s, for the purchase of dictment being a forgery: Rex v. Ball, R. goods, and the boy did so, and brought back and R. C. C. 132. But in order to shew a the goods and the change to the prisoner; it guilly knowledge on an indictment for utterwas held by the twelve judges, an ultering by ing forged bank notes, evidence of another the prisoner to A. B. Rex v. Giles, Car. Ć. uttering, subsequent to the one charged, is inL. 191. So the delivering a box, containing, admissible, except the latter uttering was in among other things, forged stamps to the par- some way connected with the principal case, ty's own servant, that he might carry them to or it can be shewn that the notes were of the an inn to be forwarded by a carrier to a cus- saine manufacture ; for only previous, or contomer in the country, is an uttering. And if temporaneous acts, can_shew, quo animo, a the delivery be in one county, and ihe inn to thing is done. Rex v. Taverner, Car. C. L. which they are carried by the servant in an. 195. other, the prisoner may be indicted in the for- So, if a second uttering be made the submer. The offence of uttering a forged stamp ject of a distinci indictment, it cannot be given will be complete, although at the time of ut. in evidence to shew a guilty knowledge in a tering, certain parts of the stamp are conceal. former uttering. Rex v. Smith, 2 C. and P. ed; all the parts that are visible being like 633. The person whose name is forged was those of a genuine stamp. Rex v. Collicoit, formerly held to be not a competent witness to R. and R. C. C. 212. It is not necessary that prove the forgery. Rex v. Russell, I Leach, a promissory note should be negotiable, in or- C. C. 8. But he has recently been made comder to be a promissory note within the 2 Geo. petent by the 9 G. IV. c. 32, s. 2. II. c. 25, so as to be the subject of an indict- (08) See also the 48 Geo. III. c. 1. 58 Geo. ment for forging or uttering it. Rex v. Box, III c. 23. s. 38. & R. & R. C. C. 67. id. 300. An indictment on 45 Geo. III. c. 89, (69) This is now a clergy able felony, 4 Geo. for uttering forged notes, need not state to IV. c. 60. s. 11. whom they were disposed, it is sufficient to (70) See 6 Geo. I. c. 4. 39 Geo. III. c. 83. state that the prisoner disposed of the notes with intent to defraud the bank, he knowing (71) See the 52 Geo:III. c. 143. 2 East P. them at the time to be forged, and although c. 911. 42 Geo. III. c. 54. the person to whom they were disposed pur- (72) Forging a writing purporting to be an chased them, as and for forged notes, and pur- office copy of a report or certificate of the ac. chased them on his own solicitation, and as countant-general that money has been paid into agent for the bank, for the purpose of bringing the bank, or forging an office copy of a certifithe prisoner to punishment. Rex v. Holden, cate or receipt of one of the cashiers of the id. 154. Uttering a forged order for the pay. bank, is within this act. i Leach, 61. 2 East ment of money under a false representation, is P.C. 898. evidence of knowing it to be forged. Id. 169. (73) See also the 33 Geo. III. c. 30. further To prove the guilty knowledge of an utterer providing against forgeries and frauds in the of a forged bank note, evidence may be given transfer of stock. of the prisoner's having previously uttered