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With intent to defraud John Webb. It appeared that the prisoner had altered this instrument, so as to render the prosecutor liable to pay more than it originally expressed. The prisoner being convicted, the judges, on a case reserved, were of opinion that the indictment was bad, as it did not state what the instrument was, in respect of which the forgery was alleged to have been committed, nor how the party signing it had authority to sign it. Wilcox's case, Russ. and Ry. 50.

It is not necessary to the sustaining an indictment for forgery at common law, that any prejudice should in fact have happened by reason of the fraud (1). Ward's case, Str. 747; 2 Ld. Raym. 1461. Nor is it necessary that there should be any publication of the forged instrument. 2 East, P. C. 855, 951, 1 Russell, 318.

Proof of the false making-in the name of the party-assuming the name of a person in existence.] The most usual kind of forgery is, where the party assumes the name and character of a person actually in existence, and by means of the credit attached thereto, carries his fraud into effect; as in the following case. The prisoner, whose name was Hadfield, appeared in the neighborhood of the lakes of Cumberland, calling himself the Hon. Alexander Augustus Hope, brother of the Earl of Hopetown, and in that name imposed upon several persons in the neighborhood. During his residence near the lakes, he drew a bill upon a gentleman in the neighborhood, which would have been paid, had not [*441] the prisoner *been detected. For this forgery he was indicted, convicted, and executed. Hadfield's case, 6 Ev. Stat. 580; 2 Russell, 327.

The adoption of a false description and addition, where a false name is not assumed, and there is no person answering the description, has been held not to be forgery. Webb's case, Russ. and Ry. 405 (a).

Of the false making-in the name of the party-party forging having the same name.] A man may be guilty of forgery by the fraudulent making of an instrument, though in his own name; as if he makes a feoffment of lands to J. S., and afterwards a deed of feoffment of the same lands to J. D., of a date prior to that of the feoffment to J. S. Hawk. P. C. b. 1, č. 70, s. 2. And the offence, it is said, would have been the same, if he had passed only an equitable interest for a good consideration, and had afterwards by such a subsequently antedated conveyance endeavored to avoid it. Id. So if a bill of exchange, payable to A. B. or order, come to the hands of a person named A. B. (not the payee) who fraudulently indorses it for the purpose of obtaining the money, this is a forgery (2). Mead v. Young, 4 T. R. 28. The prisoner, whose name was Thomas Browne, was charged together with Matthias Parkes, with forging a promissory note, purporting to be made by Thomas Browne. It appeared that the prisoner Browne had passed the note in question to a tradesman, representing it to him as the note of his brother. The note was dated at Roughton, Salop, and was made payable at Thornton and Co., bankers, London. It was proved that there was no person of

(1) Arnold v. Cost, 8 Gill & Johns. 220.

(2) People v. Peacock, 6 Cowen, 72.

(a) 1 Eng C. C. 405.

that name and description residing at Roughton, and that no such person kept an account at Thornton and Co.'s. It was objected for the prisoner Browne, that the note being made in his own name, could not be a forgery; but the judges on a case reserved, held that he had been properly convicted. Grose, J., in delivering their opinion, said, "The prisoner, at the time he uttered the note, did not utter it as his own note, but as the note of his brother, of the same name; but there is no brother of the prisoner of the name of Thomas Browne existing, and, therefore, this is the false making of a note in the name of a non-existing person, for it is equally a forgery, whether the non-existing person be described as bearing the name of the person uttering the note, or another name. The prisoner, therefore, although his name is Thomas Browne, having uttered the note, describing the signature as the name of another person, is as guilty of having uttered a forged note, as if he had uttered a note on which any name whatever had been forged." Parkes' and Browne's case, 2 Leach, 775; 2 East, P. C., 963. The authority of this case has been doubted by Mr. Evans, who has observed, that it appears to rest on very questionable principles, and in opposition to it, he cites the following case. A bill of exchange was made by the prisoner, D. Walker, (a pauper at Manchester). It was dated Liverpool, signed D. Walker and Co., and drawn on Devayne's and Co., London. Similar bills had been before drawn *in the same manner, and regularly paid, though the drawer was [ *442] unknown to that house. Parkes' and Brown's case, ante, p. 441, was cited; but the learned judge ruled, that there was not evidence sufficient to go to the jury. Walker's case, coram Chambre, J., Lanc. 6 Evan's Stat. 580. In support of his opinion, Mr. Evans refers to Hevey's case, 1 Leach, 229, (vide post, p. 462,) where a prisoner, who had assumed to be the real indorser of the bill, was held not to be guilty of forgery, there being no false making; but upon this, it may be observed, that the fact of there being no false making in the latter case, seems to distinguish it entirely from Brown's case, and to prevent its being considered an authority against that decision. An eminent writer has made the following comments upon Brown's case. "In the abstract it amounts to this, that a man who signs his own name to a note, dated at a place where he does not reside, and payable at a banker's where he has no money, is guilty of forgery. It is remarkable that the jury did not expressly find an intention on the part of the prisoner, at the time of the making, to utter it as the note of a third person. If the note contained a mere promise to pay (without place of date or payment) signed by the prisoner, and was afterwards uttered by him as the note of another, the case would be more doubtful. See also R. v. Webb, 3 B. and B. 228 (a);" 2 Stark. Ev. 333, (n.) 2d ed. A point similar to that upon which Brown's case turned, occurred in the following case, but was not decided. The prisoner, George Maddocks, was charged with forging the following indorsement upon a bill:

"Per pro. for Rob. Falcon, George Maddocks."

It appeared that he was clerk to an attorney, and had authority to open letters, receive money, and to do what was necessary in case a writ was wanted; but he had no authority to indorse a bill. The bill in question was sent in a letter to the prosecutor's chambers, where the letter was

(a) Eng. Com. L. Rep. vii. 423.

opened by the prisoner, who after writing upon the bill the indorsement mentioned above, took it to the bank, and received payment. He gave a receipt, "Received for R. F. (his master's real name,) G. M." On the following day he wrote to his master, stating he had taken the bill for acceptance, though at that time he had received the money. He then absconded. On his trial he said, he received the money for his master's use, and did not intend to apply it otherwise. The judge left it to the jury to say, whether the prisoner meant only to receive the money for his master's use, and acted under a supposition, in the situation of trust in which he was placed, that he had a right to describe himself as acting by procuration, or whether he made the indorsement and received the money, for the purpose of defrauding the prosecutor or the bank. The jury were of opinion that it was for the purpose of fraud, and referred to the letter in which the prisoner spoke of having taken the bill for acceptance; and found him guilty. As it did not appear that the prisoner had offered to make use of the indorsement to transfer the bill to any other person, or to enable himself to receive the contents as bearer or holder, having on the contrary given the receipt in his own name for the use of his master, [ *443 ] *a doubt arose, whether the indorsement was such an "indorsement" as was meant by the statute. The question, whether, under the special circumstances of his conduct, the prisoner ought to have been acquitted, or whether a false assertion in an indorsement that the prisoner has a procuration, without any other circumstance of falsehood or misrepresentation, constitutes a forgery, was referred to the judges, but no opinion was given, the prisoner dying in prison. Maddock's case, 2 Russell, 458.

Proof of the false making—in the name of the party—fictitious name.] Making an instrument in a fictitious name, or the name of a non-existing person, is equally forgery, as making it in the name of an existing person (1). 2 East, P. C. 957; 2 Russell, 328. The prisoner was indicted under stat. 2 Geo. 2, c. 25, for uttering a forged deed, purporting to be a power of attorney from Elizabeth Tingle, administratrix of Richard Tingle, late a marine, empowering a person to receive prize money due to her. There was no such person as Elizabeth Tingle. The prisoner being convicted, a doubt was entertained, whether, as there was no such person in existence as the party in whose name the deed was executed, it amounted to forgery, and the case was referred to the judges, when eleven of them were of opinion, that the case was within the meaning and the letter of the act. Lewis's case, Foster, 116. In a case which occurred a few years after the preceding, where a prisoner had been convicted of indorsing a bill of exchange in a fictitious name, the judges, on a reference to them, held unanimously, that a bill of exchange, drawn in fictitious names, where there were no such persons existing as the bill imported, was a forged bill within the 2 Geo. 2. Wilks's case, 2 East, P. C. 957. The same point was decided by the judges in Bolland's case, 1 Leach, 83; 2 East, P. C. 958. And again where the prisoner had forged a check upon a banker in the name of a fictitious person, the judges observed, that it would be a very forced construction of the statute to say, that the forgery of a ficti

(1) Riley's case, 5 Rogers's Rec. 87. Gotobed's case, 6 Id. 25. U. States v. Turner, 7 Peters, 132. See Commonwealth v. Boynton, 2 Mass. 77.

tious name, with intent to defraud, was not within it. Lockett's case, 1 Leach, 94; 2 East, P. C. 940. So if a person write an acceptance in his own name to represent a fictitious firm, with intent to defraud, it is a forged acceptance; for if an acceptance represent a fictitious firm, it is the same as if it represented a fictitious person. Per Bosanquet, J., Rogers's case, 8 C. and P. 629 (a).

It is not necessary, in order to render the act forgery, that the party should gain any additional credit by the fictitious name.

The prisoner was indicted for forging an indorsement of a bill of exchange in the name of John Williams. It appeared that the prisoner having paid away the bill, the holder applied to a banker to discount it, which he refused to do, unless the holder would put his name upon it. This the holder declined to do, but said, he would procure the person from whom he received it, to indorse it. He according applied to the prisoner, who immediately indorsed it," John Williams," which was a fictitious name, and the bill was discounted. On a case reserved, the judges were [444] unanimously of opinion, that this was forgery within the statute; for although the fictitious name was not necessary for the prisoner's obtaining the money, and his object in it, probably, was only to conceal the hands through which the bill had passed, yet it was a fraud both upon the holder and discounter, as the one lost the chance of tracing the bill, and the other the benefit of a real indorser. Taft's case, 1 Leach, 172; 2 East, P. C. 959. So where the prisoner, having got possession of a bill indorsed in blank, gave a receipt for the amount in a fictitious name, being indicted for this forgery, it was objected, that he gained no additional credit by the name he assumed. Being convicted, the case was reserved for the opinion of the judges, who (with the exception of Buller, J., who doubted,) unanimously held that the conviction was right. They said, that though the prisoner did not gain any additional credit by signing the name he put to the receipt, as the bill was not payable to the person whose name was used, but indorsed in blank, it was still a forgery, for it was done with intent to defraud the true owner of the bill, and to prevent the possibility of tracing the person by whom the money was received. Taylor's case, 2 East, P. C. 960; 1 Leach, 214.

In order to prove that the name "Samuel Knight, market-place, Birmingham," was fictitious, the prosecutor was called and stated, that he went twice to Birmingham to make inquiries, and inquired at a bank there, and at a place where the overseers usually met; and that he also had made enquiries at Nottingham, without success. The prosecutor was a stranger in both these towns. It was objected for the prisoner, that this evidence was not sufficient; that in the case of a prosecution at the instance of King's College, in order to prove a certain name fictitious, the two-penny postman and police officer of the district were called. The judges at the Old Bailey (Park and Parke, JJ. and Bolland, B.) were of opinion, that there was evidence, though not satisfactory, to go to the jury, not being the usual evidence given on such occasions, but that it was for the jury to say whether it was sufficient. The jury found the prisoner not guilty. King's case, 5 C. and P. 123 (b).

Upon an indictment for uttering a forged check upon Jones, Loyd & Co., bankers, purporting to be drawn by G. Andrews, it was held sufficient

(a) Eng. Com. L. Rep. xxxiv. 557. (b) Id. xxiv. 239.

prima facie evidence of the drawer's name being fictitious, to call a clerk of the bankers, who stated, that no person of that name kept an account with, or had any right to draw checks on, their house. Backler's case, 5 C. and P. 119 (a). Brannan's case, 6 Ç. and P. 526 (b).

Proof of the false making-in the name of the party-fictitious name-assumed and borne by the party forging.] The circumstance that the party making the forged instrument has assumed, and been known by the fictitious name in which it is executed, for some time before the making, will not prevent its being a forgery; there being no distinction whether the credit was given to the person of the prisoner, or the name [*445] assumed by him. On a prosecution for forging *an order for the payment of money, it appeared that the prisoner had made the order in a fictitious name, and the prosecutor stated, that he looked upon it to be the prisoner's draft. The prisoner being convicted, a doubt arose upon the point, whether the prosecutor had given credit to the prisoner, or to the draft; but the judges held the conviction right, observing, that it was a false instrument, and not drawn by any such person as it purported to be. Sheppard's case, 2 East, P. C. 967; 1 Leach, 226.

The prisoner, Elizabeth Dunn, was indicted for forging a promissory note as the maker. The note was subscribed,

her

Mary Wallace, mark.

It was payable to the prosecutor, a prize agent, to whom the prisoner applied in the character of executrix of John Wallace, a deceased seaman. The prosecutor having advanced her the sum mentioned in the note, wrote the body of it, and desired her to sign it, asking what name he must write. over her mark. She replied, Mary Wallace, and the prosecutor's clerk put his name as a witness. The prisoner being found guilty, a case was reserved, when nine of the judges held the conviction right. Mr. Justice Aston doubted, upon a principle not now maintainable, that to constitute forgery the instrument itself must be false, and that the merely assuming a fictitious name to it, will not make it a forgery. Dunn's case, I Leach, 57; 2 East, P. C. 962.

The circumstances in the following case were somewhat different, and the judges were divided in opinion; though it is observed by Mr. East,. (2 P. C. 968,) that it is difficult to distinguish it from the foregoing case. The prisoner, John Henry Aickles, was indicted for forging a promissory note, which purported to be made by John Mason. The note, which was dated 18th December, 1786, was offered in payment by the payee, Byron, on the 9th of January, 1787. Byron being asked where the maker lived, replied at No. 4, Argyle-street. On a reference there it appeared that the prisoner had taken the house in the name of John Mason, and was known by that name. His name was in fact Aickles, by which he had been known up to 1780. Grose, J., told the jury that, if they believed that the name taken by the prisoner was in consequence of a concerted scheme between him and Byron, to defraud the prosecutor, they would be justified in finding him guilty; and he directed them to find whether the prisoner had ever gone by the name of John Mason before, and whether

(a) Eng. Com. L. Rep. xxiv. 236. (b) Id. xxv. 422.

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