right," (47) for which the offender may suffer fine, imprisonment, and pillory.(48) And also, by a variety of statutes, a more severe punishment is

I

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. 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 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. I Leach, 172; and see R. & Ry. C. C. 75, 90, 209, 278. So to put a fictitious name on a bill endorsed in blank, in order to circulate it in secrecy, is a similar offence. 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. I Leach, 216, 217, in notis [In the notes]. 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 instance. Russ. & Ry. C. C. 260. Assuming and using a fictitious name, though for purposes of concealment and 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., 24 ed. 510. Russ. & Ry. C. C. 463, S. C. A defect in the stamp will not avail the prisoner, (I Leach, 257, 258, 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. Leach, 431. These cases will sufficiently explain the law on this subject.-CHITTY. It is immaterial whether the forging be of a bill genuine or binding, if the counterfeiting be proved it is sufficient. Van Horne v. State, 5 Ark. 251 (1843). Where the signature to an instrument is genuine, but the body of the instrument false, the signing of the complainant's name without knowledge of its falsity, cannot cure it and make it a true and valid instrument in the hands of any one. McGinn v. Toby, 62 Mich. 260 (1886). See i Wharton's Crim. L. 618; 2 Russ. on Crimes, 564 (6 ed.). 2 Bishop's New Crim. L. 523. 2 Waterman's Crim. Pro. 797. 1 Barbour's Crim. L. 173. Malone's Crim. Briefs, 221. U. S. Crim. Law (Lewis) 290. 2 Pollock and Maitland's Hist. of Eng. L. 539. The fabrication of a certificate of notary public purporting to authenticate the acknowledgment of a conveyance or transfer, is not an offence against the laws of Texas. Rogers v. State, 8 Tex. App. 401 (1880). The jurisdiction of the state courts extends to the case of a forgery of powers of attorney to receive warrants for lands granted by acts of congress for military services. Com. v. Schaffer, 4 Dall. 23 (1797). In extradition proceedings, the endorsement to the bank of the receipts does not constitute forgery. In re Sherman, 19 Ontario, 315 (1890). An indictment for forging need not state that the instrument, if genuine, would have conveyed the land; it is sufficient to say that it purported to convey it; nor need it charge that the deed was executed or acknowledged. State v. Fisher, 65 Mo. 437 (1897). As to burden of proof, State v. Flye, 26 Me. 312 (1846). To constitute forgery, the writing charged to have been feloniously and falsely made, must be of a character, that if it were genuine, it would be evidence of the fact it recites. State v. Smith, 8 Yerger (Tenn.) 150 (1835).

I

(47) See Com. v. Wilson, 89 Ky. 157, 159 (1889). Forgery," says Bishop on Criminal Law, vol. 1, 572, “is the false making or material altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.'

(48) 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 afterward practice as attorneys, solicitors or law-agents, the court where they practice shall examine the 1645

BOOK IV.-15.

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.

matter in a summary way and order the offender to be transported for seven years. — CHITTY.

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 signature personally responsible for the payment of the note, (1 Leach, C. C. 311. R. & 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 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 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 former. 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. & R. Č. 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, (superseded by statute Vict. infra,) 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, (superseded by 24 and 25 Vict. c. 98,) for uttering forged notes, need not state to whom they were disposed: it is sufficient to state that the prisoner dispose 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 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 show the prisoner's knowledge of the note mentioned in the indictment being a forgery. Rex v. Ball, R. & R. C C. 132. But in order to show 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 shown that the notes were of the same manufacture; for only previous or contemporaneous acts can show quo animo [With what intention] a thing is done. Rex v. Taverner Par. C. L. 195.

So, if a second uttering be made the subject of a distinct indictment, it cannot be given in evidence to show a guilty knowledge in a former uttering. Rex v. Smith, 2 C. & 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. Č. 8;) but he has recently been made competent, by the 9 Geo. IV. c. 32, s. 2.--CHITTY. See 24 & 25 Vict. c. 98, 8-11. Benefit of clergy is abolished by 7 & 8 Geo. IV. c. 28, § 6.

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) bills of credit issued from the exche- [*248 quer; (9) or South-Sea bonds, etc.;(r) of lottery tickets or orders;(s) of army or navy debentures; (f) of East India bonds;(u) of writings under the seal of the London or royal exchange assurance; (w) of the hand of the receiver of the prefines(x) or of the accountant-general, and certain other officers of the court of chancery; (y) 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; (2) (49) 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 letters of administration, in order to receive such payments; (50) and the forging or procuring to be forged, and likewise the uttering or publishing as true, of any counterfeited seaman's will or power; (a) to which may be added, though not strictly reducible to this head, the counterfeiting of Mediterranean passes under the hands of the lords of the admiralty, to protect one from the piratical States of Barbary; (b) the forging or imitating of any stamps to defraud the public revenue, (c)(51) and the forging of any marriage register or license; (d) (52) all which are, by distinct acts of parliament, made felonies without benefit of clergy. By statute 13 Geo. III. c. 52 and 59, forging or counterfeiting any stamp or mark to denote the standard of gold and silver plate, and certain other offences of the like tendency, are punished with transportation for fourteen years. (53)

(p) 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. c. 79. (9) See the several acts for issuing them.

(r) Stat. 9 Anne, c. 21. 6 Geo. I. c. 4 and 11. 12 Geo. I. c. 32.

(8) See the several acts for the lotteries.

(t) Stat. 5 Geo. I. c. 14. 9 Geo. I. c. 5.

(u) Stat. 12 Geo. I. c. 32.

(w) Stat. 6 Geo. I. c. 18.

(x) Stat. 32 Geo. II. c. 14.

(y) Stat. 12 Geo. I. c. 32.

(z) Stat. 8 Geo. I. c. 22. 9 Geo. I. c. 12. 31 Geo. II. c. 22, 77.

(a) Stat. 31 Geo. II. c. 10. 9 Geo. III. c. 30.

(b) Stat. 4 Geo. II. c. 18.

(c) See the several stamp-acts.

(d) Stat. 26 Geo. II. c. 33.

(49) See 33 & 34 Vict. c. 58, % 4. See 2 Russell on Crimes, 712. Byles on Bills, 331. (50) See 2 & 3 Wm. IV. c. 53.

(51) See 39 & 40 Vict. c. 36, 28 for the punishment inflicted for counterfeiting or procuring to be counterfeited, the handwriting, etc., of the receiver general or any accountant and the controller of customs; for offences relating to stamps and their punishment, etc., see stat. 54 & 55 Vict. c. 38, 88 13-21. It is not necessary to constitute the crime that another's right shall have been prejudiced; the possibility of prejudice to another is sufficient; and if publication be necessary, the books in question being of a public character, the forged entry in them must be regarded as having been published as soon as made. In re Hall, 3 Ont. 331 (1882). Forgery cannot be predicated upon an instrument which by reason of non-compliance with statutory requirements, is void upon its face. Raymond v. The People, 2 Col. App. 361, 1892. An endorsement of a city stock certifi cate with fraudulent intent, may be a forgery within the meaning of the statute, though the certificate is on its face transferable only at the mayor's office in person or by attorney. Bishop and Helm v. State, 55 Md. (Stockett) 138, 1880.

(52) The forgery of a marriage license is punishable by the stat. 24 & 25 Vict. c. 89, 235, either with penal servitude for a period not longer than seven years nor shorter than three, or with imprisonment for not longer than two years, with or without hard labor and solitary confinement: and by sec. 36 of the same statute, forging registers of births, baptisms, marriages, deaths, or burials, is similarly punished, the term of penal servitude, however, being for any term exceeding three years.

(53) See supra note 51.

*249] By statute 12 Geo. III. c. 48, certain *frauds on the stamp-duties therein described, principally by using the same stamps more than once, are made single felony, and liable to transportation for seven years. And the same punishment is inflicted, by statute 13 Geo. III. c. 38, on such as counterfeit the common seal of the corporation for manufacturing plateglass, (thereby erected,) or knowingly demand money of the company by virtue of any writing under such counterfeit seal.

There are also certain other general laws with regard to forgery, of which the first is 2 Geo. II. c. 25, whereby the first offence in forging or procuring to be forged, acting or assisting therein, or uttering or publishing as true, any forged deed, will, bond, writing obligatory, bill of exchange, promissory note, endorsement, or assignment thereof, or any acquittance or receipt for money or goods, with intention to defraud any person, (or corporation,)(e) is made felony without benefit of clergy. And, by statutes 7 Geo. II. c. 22, and 18 Geo. III. c. 18, it is equally penal to forge or cause to be forged or utter as true a counterfeit acceptance of a bill of exchange, or the number or principal sum of any accountable receipt for any note, bill, or any other security for money, or any warrant or order for the payment of money or delivery of goods. (54) So that, I believe, through the number of these general and special provisions, there is now hardly a case possible to *250] be conceived wherein forgery that tends to defraud, whether in the name of a real or fictitious person, (ƒ) is not made a capital crime. (55)

These are the principal infringements of the rights of property, which were the last species of offences against individuals or private subjects which

(e) Stat. 31 Geo. II. c. 22, 78.

(f) Fost. 116, etc.

(54) See 2 & 3 Wm. IV. c. 53, respecting widows' pensions, remittance-bills, the forging of which, or procuring others to forge them, is made a felony punishable with transpor

tation.

(55) It has frequently been determined that drawing, endorsing, or accepting a bill of exchange in a fictitious name is a forgery. Bolland's case, &c., Leach, 78, 159, 192. I Hen. Bla. 588. Fost. 116. It is also forgery to fabricate a will by counterfeiting the name of a pretended testator who is still living. Cogan's case, ibid. 355.

If a person puts his own name to an instrument, representing himself to be a different person of that name, with an intent to defraud, he is guilty of forgery. 4 T. R. 28. But where a bill of exchange is endorsed by a person in his own name, and another represents himself to be that person, he is not guilty of forgery, but it is a misdemeanor. Hovey's case, Leach, 268.

A bill or note may be produced in evidence against a prisoner prosecuted for the forgery of it; and he may be convicted upon the usual evidence of the forgery, though it has never been stamped pursuant to the stamp acts. Hawkeswood's and Reculist's cases, Leach,292 and 811. For the forgery in such a case is committed with an intent to defraud; and the legislature meant only to prevent their being given in evidence when they were proceeded upon to recover the value of the money thereby secured. But lord Kenyon has declared that he did not approve of the decision of the majority of the judges in these cases. Peake, 168. It has been declared that the forgery of a bill of exchange in a form which rendered it void under the 17 Geo. III. c. 30 (see 2 book, 467) was not a capital offence, because if real it was not valid or negotiable. Moffat's case, Leach, 483.

Every indictment for forgery must set out the forged instrument in words and figures. Mason's case, I East, 182.

But it is sufficient to set forth the receipt at the bottom of an account without setting out the account itself. Testick's case, ibid. 181. The word purport in an indictment for forgery signifies the substance of an instrument as it appears on the face of it: tenor means an exact copy of it. Ibib. 180. Leach, 753.

The most effectual statute for the prevention of the forgery of bank-notes is the 24 & 25 Vict. c. 98, 13, which enacts that if any one shall knowingly have in his possession any forged bank-notes, knowing the same to be forged, without lawful authority or excuse, the proof whereof shall lie upon the person accused, he shall be guilty of felony, and shall be liable to penal servitude for a term not longer than fourteen years nor

the methods of distribution has led us to consider. We have before examined the nature of all offences against the public or commonwealth; against the king or supreme magistrate, the father and protector of that community; against the universal law of all civilized nations; together with some of the more atrocious offences of publicly pernicious consequence against God and his holy religion. And these several heads comprehend the whole circle of crimes and misdemeanors, with the punishment annexed to each, that are cognizable by the laws of England. (56)

CHAPTER XVIII.

OF THE MEANS OF PREVENTING OFFENCES

*WE are now arrived at the fifth general branch or head under [*251 which I proposed to consider the subject of this book of our commentaries, viz., the means of preventing the commission of crimes and misdemeanors. And really it is an honor, and almost a singular one, to our English laws, that they furnish a title of this sort, since preventive justice is, upon every principle of reason, of humanity, and of sound policy, preferable in all respects to punishing justice, (a) the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances. (1)

This preventive justice consists in obliging those persons whom there is a probable ground to suspect of future misbehavior to stipulate with and to give full assurance to the public that such offence as is apprehended shall not happen, by finding pledges or securities for keeping the peace, or for their good behavior. This requisition of sureties has been several times mentioned before as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanors; but there also it must be understood rather as a caution against the repetition of the offence than any immediate pain or punishment. (2) And, indeed, if we consider all human *punishments in a large and extended view, we shall find them all [*252 rather calculated to prevent future crimes than to expiate the past; since,

as was observed in a former chapter, (b) all punishments inflicted by temporal laws may be classed under three heads: such as tend to the amendment of (a) Beccar. ch. 41.

(b) See page 11.

shorter than three, or to imprisonment for not longer than two years, with or without hard labor and solitary confinement.

And if any person shall make any plate or instrument for forging bank-notes, or any part of a bank-note, or shall knowingly have them in his possession without lawful authority or excuse, authority from the governor and company of the Bank of England, shall be guilty of felony, and shall suffer the punishment prescribed for the pre ceding offence.

But before this statute this must have been an indictable offence as a misdemeanor. See ante, 99, note 7.

(56) See a collection of the acts of parliament relating to the crime of forgery in Collyer's Crim. Stat. 142, et seq. [And the following], with the notes thereon.

(1) Sureties for the peace are given only in criminal actions, not in civil. Vanlieu v The State ex rel. Ackerman, 10 Ind. 384, 385 (1858.)

(2) An appeal does not lie from the action of a justice of the peace requiring a party brought before him on a peace warrant, to give bond to keep the peace. In a proper

case the action of the justice might be reviewed by a certiorari or habeas corpus. State v. Lyon, 93 N. C. 575, 576 (1885).