This species of larceny is debarred of the benefit of clergy by statute 23 Hen. VIII, c. 1, and other subsequent statutes, not indeed in general, but only when committed in a dwelling-house, or in or near the king's highway. A robbery, therefore, in a distant field or foot-path, was not punished with death; (k) but was open to the benefit of clergy, till the statute 3 and 4 W. and M. c. 9, which takes away clergy from both principals and accessories before the fact, in robbery, wheresoever committed.

II. Malicious mischief, or damage, is the next species of injury to private property, which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another's loss; which is some though a weak excuse: but either out of a spirit of wanton cruelty, or black and diabolical revenge. In which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property of individuals. And therefore any damage arising from this mischievous disposition, though only a trespass at common law, is now by a multitude of statutes made penal in the highest degree. Of these I shall extract the contents in order of

time.

(k) 1 Hal. P. C. 535.

arises from real or expected violence to the person, or from a sense of injury to the character, makes no kind of difference; for to most men the idea of losing their fame and reputation is equally, if not more terrific, than the dread of personal injury. The principal ingredient in robbery is a man's being forced to part with his property; and the judges are unanimously of opinion, that, upon the principles of law, as well as the authority of former decisions, a threat to accuse a man of the greatest of all crimes, is a sufficient force to constitute the crime of robbery by putting in fear." 1 Leach, 280. And fear of loss of character and service upon a charge of sodomitical practices, is sufficient to constitute robbery, though the party has no fear of being taken into custody or of punishment. R. and R. C. C. 375. But if no actual force was used, and, at the time of parting with the money, the party were under no apprehension, but gave it merely for the purpose of bringing the offenders to justice, they cannot be capitally convicted, though we have seen it is otherwise where personal violence is employed. 1 East, P. C. 734; R. and R. C. C. 408. And the influence exercised over the mind, where the force is merely constructive, must be of such kind as to disenable the prosecutor to make resistance. 2 Leach, 721; 6 East, 126. So that a threat to take an inrocent person before a magistrate, and thence to prison, without charging him with any specific crime, is not sufficient to make the party a robber, if he obtain money to induce him to forbear. 2 Leach, 721. Indeed it has been said that the only instance in which a threat will supply the place of force is an accusation of unnatural practices. 2 Leach, 730, 731; id. 139; 2 Russ. 1009. And it has recently been held, contrary, it seems, to the principle of some former decisions, that, even in this case, the money must be taken immediately on the threat, and not after time has been allowed to the prosecutor to deliberate and advise with friends as to the best course to be pursued: 1 East, P. C. Append. xxi; though as some of the judges dissented, it does not seem to be decisive. Where, on the other hand, there is an immediate threat of injury to the property, as by pulling down a house with a mob in a time of riots, which produces great alarm, and induces a man to part with his money, this has been holden to be a sufficient putting in fear to constitute a robbery. 2 East, P. C. 729, 731. And if a man assaults a woman with intent to commit a rape, and she, in order to prevail on him to desist, offers him money, which he takes, but continues his endeavors till prevented by the approach of a third person, he will be guilty of robbery, though his original intent was to ravish. 1 East, P. C. 711. If thieves meet a person and, by menaces of death, make him swear to bring them money, and he, under the continuing influence of fear for his life, complies, this is robbery in them, though it would not be so if he had no personal fear, and acted merely from a superstitious regard to an oath so extorted. 1 East, P. C. 714. In the absence of force, to constitute robbery the fear must arise before and at the time of the property being taken; it is not enough that it arises afterwards; and where the prisoner by stealth took some money out of the prosecutor's pocket, who turned round, saw the prisoner, and demanded the money, but the prisoner threatening him, he desisted through fear from making any farther demand, it was held no robbery. Roll. Rep. 154; 1 Hale, 534.

To constitute a robbery, where an actual violence is relied on, and no putting in fear can be expressly shown, there must be a struggle, or at least a personal outrage. So that to snatch property suddenly from the hand, to seize a parcel carried on the head, to carry away a hat and wig without force, and to take an umbrella of a sudden, have been respectively holden to be mere larcenies. 1 Leach, 200, 291, and in notes. But where a man snatched at the sword of a gentleman hanging at his side, and the latter, perceiving the design, laid hold on the scabbard, on which a contest ensued, and the thief succeeded in wresting the weapon from the owner, his offence was holden to be robbery. Id. Snatching an article from a man will

*And, first, by statute 22 Hen. VIII, c. II, perversely and maliciously to cut down or destroy the powdike, in the fens of Norfolk and Ely, is [ *244 ] felony. And in like manner it is, by many special statutes enacted upon the occasions, made felony to destroy the several sea-banks, river-banks, public navigations, and bridges, erected by virtue of those acts of parliament. (15) By statute 43 Eliz. c. 13 (for preventing rapine on the northern borders), to burn any barn or stack of corn or grain; or to imprison or carry away any subject, in order to ransom him, or to make prey or spoil of his person or goods upon deadly feud or otherwise, in the four northern counties of Northumberland, Westmoreland, Cumberland, and Durham, or being accessory before the fact to such carrying away or imprisonment; or to give or take any money or contribution, there called blackmail, to secure such goods from rapine; is felony without benefit of clergy. By statute 22 and 23 Car. II, c. 7, maliciously, unlawfully, and willingly, in the night time, to burn, or cause to be burnt or destroyed, any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns; or to kill any horses, sheep, or other cattle, is felony; but the offender may make his election to be transported for seven years; and to maim or hurt such *horses, sheep, or other cattle, is a trespass for which treble damages [ *245] shall be recovered. By statute 4 and 5 W. and M. c. 23, to burn on any waste, between Candlemas and Midsummer, any grig, ling, heath, furze, goss, or fern, is punishable with whipping and confinement in the house of correctionBy statute 1 Ann. st. 2, c. 9, captains and mariners belonging to ships, and destroying the same, to the prejudice of the owners (and by 4 Geo. I, c. 12, to the prejudice of insurers also), are guilty of felony without benefit of clergy. And by statute 12 Ann. st. 2, c. 18, making any hole in a ship, in distress, or stealing ner pumps, or aiding or abetting such offences, or wilfully doing any thing tending to the immediate loss of such ship, is felony without benefit of clergy. By statute 1 Geo. I, c. 48, maliciously to set on fire any underwood, wood, or coppice, is made single felony. By statute 6 Geo. I, c. 23, the wilful and malicious tearing, cutting, spoiling, burning, or defacing of the garments or clothes of any persons passing in the streets or highways, with intent so to do, is felony. This was occasioned by the insolence of certain weavers and others; who, upon the introduction of some Indian fashions prejudicial to their own manufactures, made it their practice to deface them; either by open outrage, or by privily cutting, or casting aqua fortis in the streets upon such as wore them. By statute 9 Geo. I, c. 22, commonly called the Waltham black act, occasioned by the devastations committed near Waltham in Hampshire, by persons in disguise

constitute robbery if it is attached to his person or clothes so as to afford resistance; and therefore, where the prosecutor's watch was fastened to a steel chain which went round his neck, and the seal and chain hung from his fob, and the prisoner laid hold of the seal and chain and pulled the watch from the fob, but the steel chain still secured it, and by two jerks the prisoner broke the steel chain, and made off with the watch, it was held a robbery, for the prisoner did not get the watch at once, but had to overcome the resistance the steel chain made, and actual force was used for that purpose. R. and R. C. C. 419. And where a heavy diamond pin, with a corkscrew stalk, which was twisted and strongly fastened in a lady's nair, was snatched out, and part of the hair torn away, the judges came to a similar decision 1 Leach, 335. The case of the man who tore an ear-ring from the ear, and in so doing lacerated the flesh, serves also to confirm this position. 1 Leach, 320. Nor will it excuse the violence that it was done under pretence of law; for where a bailiff handcuffed a prisoner and used her with great cruelty, for the purpose of extorting money from her, he was holden to be guilty; as were also a number of men for seizing a wagon under pretence that there was no permit, when none was in reality necessary. 1 Leach, 250; 1 East, P. C. 709.]

That extorting money or other thing of value by means of a charge of sodomy may be robbery, see People v. McDaniels, 1 Parker, 198. But this is an exceptional case, and it is held not robbery to extort money by means of the charge of any other offence, as for instance, forgery. Long v. State, 12 Geo. 293; Britt v. State, 7 Humph. 45. Obtaining money from a woman under a threat to accuse her husband of an indecent assault, was held not to be robbery in Rex J. Edwards, 5 C. and P. 518; 1 Moo. and R. 257.

(15) See as to this offence statute 24 and 25 Vic. c. 97. The same statute provides generally for other offences mentioned in this paragraph.

VOL. II.-57

449

or with their faces blacked (who seem to have resembled the Roberdsmen, or followers of Robert Hood, that in the reign of Richard the First committed great outrages on the borders of England and Scotland); (1) by this black act, I say, which has in part been mentioned under the several heads of riots, menaces, mayhem, and larceny, (m) it is farther enacted, that to set fire to any house, barn, or outhouse (which is extended by statute 9 Geo. III, c. 29, to the *malicious and wilful burning or setting fire to all kinds of mills), or [ *246] to any hovel, cock, mow, or stack of corn, straw, hay, or wood; or unlawfully and maliciously to break down the head of any fish pond, whereby the fish shall be lost or destroyed; or in like manner to kill, maim, or wound any cattle; or cut down or destroy any trees planted in an avenue, or growing in a garden, orchard, or plantation, for ornament, shelter, or profit; all these malicious acts, or procuring by gift or promise of reward any person to join them therein, are felonies without benefit of clergy; and the hundred shall be chargeable for the damages, unless the offender be convicted. In like manner by the Roman law to cut down trees, and especially vines, was punished in the same degree as robbery. (n) By statutes 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, or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or depth of coal. 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. By statute 28 Geo. II, c. 19, to set fire to any gos, furze, or fern, growing in any forest or chase, is subject to a fine of five pounds. By statutes 6 Geo. III, cc. 36 and 48, and 13 Geo. III, c. 33, wilfully to spoil or destroy any timber or other trees, roots [*247] *shrubs, or plants, is for the two first offences liable to pecuniary penal

ties; 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. 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; 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. 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 wilfully and maliciously cut or destroy the same. And these are the principal punishments of malicious mischief.

III. Forgery, (16) or the crimen falsi, is an offence, which was punished by the civil law with deportation or banishment, and sometimes with death. (0) It

(2) 3 Inst. 197.

(m) See pages 144, 208, 235, 240.

(n) Ff. 47, 7, 2.

(0) Inst. 4, 18, 7.

(16) [FORGERY. We will endeavor to elucidate the nature of, and what constitutes, this offence, by considering. 1. What false making is sufficient: 2. With what intent the forgery must be committed; and, 3. How far the instrument forged must appear to be genuine. The consideration of what instruments may be the subjects of forgery will follow.

I. WHAT FALSE MAKING IS SUFFICIENT. It is not necessary that the whole instrument should be fictitious. Making a fradulent 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 acceptance, by which its payment may be accelerated, are forgeries. 1 Hale, 683-685; 4 T. R. 320. Aitering a bill from a lower to a higher sum is orging it; and a person may be indicted on the 7 Geo. c. 22, for forging such an instru

may with us be defined, at common law, to be, "the fraudulent making or alter ation of a writing to the prejudice of another man's right;" for which the of fender may suffer fine, imprisonment, and pillory. And also by a variety of statutes, a more severe punishment is inflicted on the offender in many particu

Russ.

ment, though the statute has the word alter as well as forge; and in the same case it was hel 10 ground of defence, that before the alteration it had been paid by the drawer and re-issued R. and R. C. C. 33; 2 East, P. C. 979, S. C. So altering a banker's one pound note, by substi ting the word ten for the word one, is a forgery. Russ. and Ry. C C. 101; 2 Burn, J., 24th ed., 91; 2 East, P. C. 986. If a note be made payable at a country banker's, or at their banker's in ondon, who fails, it is forgery to introduce a piece of paper over the names of the Londen Tankers, who have so failed, containing the names of another banking-house in Loudon. and Ry. C. C. 164; 2 Taunt, 323; 2 Leach, 1040, S. C.; and see 2 East, P. C. 856; 2 Burn, J. 24th ed. 492, S. C. Expunging an indorsement on a bank note with a liquor unknown, has been holden to be an erasure within 3 and 9 Wm. III, c. 20, and 3 P. 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. C. 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 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. and Ry. C. C. 291; and see id. 769.

III. HOW FAR THE INSTRUMENT 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 id. 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. and 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. I 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 Bast, 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. and 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. i Leach, 215. And indeed it seems that it is not necessary, to constitute forgery, that there should be an intent to defraud any particnlar person, and a general intent to defraud will sufrice. 3 T. R. 176; 1 Leach, 216, 217, in notes. But to support a charge of forgery, by subscribing a fictitious name, there must be satisfactory evidence on the part of the prosecutor

lar cases, which are so multiplied of late as almost to become general. I shall mention the principal instances. (17)

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, [*248] 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)(18) of bills of credit issued from the exchequer; (7) of South

(p) Stat. 8. 9 Wm. III, c. 20. 36. 11 Geo. I, c 9. 12 Geo. I, c. 32. 15 Geo. II, c. 13. 13 Geo III, c. 79. (q) See the several acts for issuing them.

that it is not the party's real name, and that it was assumed for the purpose of fraud in that instance. Russ, and Ry. C. C. 260. Assuming and using a fictitious name, though for purposes 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. and 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. and Ry. C. C. 278; id. 405; 3 Brod. and Bing. 228, S. C.; 2 Burn, J., 24th ed. 510; Russ. and Ry. C. C. 463, S. C.

A defect in the stamp will not avail the prisoner: 1 Leach, 257, 258, in notes; 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.]

(17) The 24 and 25 Vic. c. 98, consolidates the various statutes on this subject, and goes with great particularity into an enumeration of the cases which shall be punishable under it. The punishment in some cases may be penal servitude for life.

Besides the punishment to which the forger is subject, he becomes, at common law, infamous, and incapable of giving evidence. Co. Litt. 6, b.; 1 Greenl. Ev. § 373. But to have this effect, there must be both a conviction and a judgment. Rex v. Castell, 8 East, 77; Rex v. Teal, 11 id. 309; People v. Whiffle, 9 Cow. 707. The disability will be removed by a reversal of judgment, or by pardon: People v. Pease, 3 Johns. Cas. 333; and it is not competent to attach to the pardon a condition that the disability shall still remain. Id.

Statutes, in some cases, have changed this common law rule, either by making the convicted party a competent witness after he has endured the punishment, or by making the infamy of a person an objection to his credibility only.

(18) [What circumstances are sufficient to constitute 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 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 former. The offence of uttering a forged stamp will be complete, although at the time of uttering certain parts of