Page images
PDF
EPUB

2. Intent to Defraud. - Another of the elements of forgery, which is of the very essence of the offence, is the intent to defraud;' for if one signs the name of another to an instrument, in the honest belief that he has authority to do so, it negatives the intent to defraud.? But to constitute the offence, there must the coal, though of the same name. Peo- committed of any writing by which anple v. Peacock, 6 Cow. (N. Y.) 72. So of other might be defrauded. The fraudumaking a fraudulent alteration or erasure lent intent was the essence of the offence, in any material part of a true instrument, and must have been alleged and proved. or any alteration which gives it a new Hess v. State, 5 Ohio, 5; s. C., 22 Am. effect-as by altering the date of a bill of Dec. 767. exchange after acceptance, whereby the Belief that he had the Right.-Where the payment was accelerated.” See Masters v. evidence in support of an indictment for Miller, 4 T. R. 320; 3 Chit. Cr. L. 1038; forgery fails to show criminal intent, and 2 East P. C. 855.

is consistent with the theory that defend1. Phillips v. State, 17 Ga. 461; Fox v. ant, in indorsing a check, did only what People, 95 11. 71; State v. Pierce, 8 Iowa, he believed he had a right to do, a verdict 231; Arnold v. Cost, 3 Gill & J. (Md.) of conviction will not be sustained. Mont219; s. C., 22 Am. Dec. 302; Com. v. Fos- gomery v. State, 12 Tex. App. 323. ter, 114 Mass. 311; s. C., 19 Am. Rep. Incapacity to Execute Instrument.-It 353; Com. v. Ladd, 15 Mass. 526; State is not essential to the crime of forgery 7. Eades, 68 Mo. 150; s. C., 30 Am. Rep. that the person in whose name the instru780; State 24. Redstrake, 39 N. J. L. (10 ment purports to be made shall have Vr.) 365; People v. Stearns, 21 Wend. (N. legal capacity to make it. It is sufficient, Y.) 409; People 7'. Fitch, 1 Wend. (N. Y.) under Mo. Rev. Stat. (Wag. Stat. $ 16, p. 198; s. c., 19 Am. Dec. 477; Barnum v. 470), if it is made with intent to defraud, State, 15 Ohio, 717; s. c., 45 Am. Dec. and on its face would be likely to defraud. 601; Hess v. State, 5 Ohio, 5; s. C., 22 Thus, the making of a false municipal Am. Dec. 767; State 7'. Washington, 1 Bay certificate of indebtedness, with intent to (S. C.), 120; s. C., I Am. Dec 601; State injure and defraud, is forgery, notwithv. Floyd, 5 Strobh. (S. C.) L. 58; S. C., standing the municipality may have no 53 Am. Dec. 689; Snell v. State, 2 Humph. power to issue such certificate. State v. (Tenn.) 347; Montgomery v. State, 12 Eades, 68 Mo. 150, s. c., 30 Am. Rep. Tex. App. 323; State v. Shelters, 51 Vt. 18o. 105; s. C., 31 Am. Rep. 679; Kerr 2. Force, Forgery of Pay-roll.-In order to a 3 Cr. C. C. 43; United States v. Moses, 4 conviction under U. S. Rev. Stat. $ 5418, Wash. C. C. 726; United States v'. Hough- the jury must be satisfied beyond a reasonton, 14 Fed. Rep. 544; S. C., 4 Cr. L. Mag. able doubt: (1) That the time and pay243; Reg. v. Dunlop, 15 Up. Can. Q. B. roll described in the indictment was a 118; Reg. v. Craig, 7 Up. Can. C. P. 239; false, forged, and counterfeit writing; (2) Rex v. Powell, W. Bl. 787; Rex v. Mar- that it was transmitted to the proper offitin, 7 Car. & P. 549; Rex v. Holden, 2 cer of the government by the defendant; Taunt. 334; Briggs's Case, 3 P.Wms. 119; and (3) that the falsity of the writing was 2 Bish. Cr. L. (6th ed.) SS 506-601; I known by the defendant at the time of Whart. Cr. L. (8th ed.) S 653.

sending it, and that it was sent with the The Very Essence of the Offence is the intent to defraud the United States. Intent to Defraud.—But it is perfectly Where one intends to do what he knows immaterial whether any person is ac- is forbidden by law, no other evil intent tually defrauded or not. If the forgery need be shown. The law infers the inappears to have been done with a view tent to defraud from such an act; and of gaining any advantages to the party knowledge of the false character of the himself, or prejudicing a third person, it pay-roll, when transmitted, raises the inis sufficient. And in Briggs's Case, 3 P. ference of a fraudulent intent. United Wms. 119, it was held no objection that

States v.

Houghton, 14 Fed. Rep. 544; s. the forgery was found, by a special ver- C., 4 Cr. L. Mag. 243. dict, not to have been committed for the 2. See Com. v. Whitney, Thach. C. C. sake of lucre or lo defraud the party. (Mass.) 588; Parmelee v. People, 8 Hun Campb. 324; 2 Leach, 983; New Rep. (N. Y.), 623; Reg. v. Beard, 8 Car. & P. 92; Chitty C. L. vol. 1, p. 387; 2 Sıra. 747; 142; Reg. v. Parish, 8 Car. & P. 94; Rex 2 Ld. Raym. 1461.

v. Forbes, 7 Car. & P. 224. Forgery at Common Law ivas considered Authority to sign.-It is said, in the a species of fraud, and might have been case of Parmelee v. People, 8 Hun (N. Y.),

[ocr errors]

be not only an intent to defraud and injure, but a possibility of defrauding some person.1

It has been held that intent to defraud a particular person is unnecessary to constitute forgery, a general intent to defraud being sufficient;? and it is not necessary that any person should be actually defrauded.3 And it is of no consequence that the person actually intended to be defrauded could not have been imposed upon, or that there is no person in existence in a condition or situation to be defrauded ;

5

one.

623, that the proof that one indicted for 307; Com. v. Ladd, 15 Mass. 526; State forgery had reasonable grounds for be- 2'. Jones, 9 N. J. L. (4 Halst.) 357; s. C., lieving that he had authority to sign the 17 Am. Dec. 483; People v. Fitch, I name of another entitles him to acquittal; Wend. (N. Y.) 198; s. C., 19 Am. Dec. citing Reg. v. Beard, 8 Car. & P. 143; 477; Hess v. State, 5 Ohio, 5; S. C., 22 Reg. v. Parish, 8 Car. & P. 94; Rex v. Am. Dec. 767; State v. Lurch, 12 Oreg. Forbes, 7 Car. & P. 224.

99; Pennsylvania v. Misner, Addis. (Pa.) 1. Com. v. Henry, 118 Mass 460 44; State v. Washington, 1 Bay (S. C.) 120;

2. Arnold v. Cost, 3 Gill & J. (Md.) S. C), I Am. Dec. 601; Snell v. State, 2 219; s. C., 22 Am. Dec. 302; Tatlock v. Humph, (Tenn.) 3.47; Henderson v. State, Harris, 3 T. R. 176; 2 Chitt. Cr. L. 796, 14 Tex. 503; Com. v. Goodenough, I 1036. Compare Williams v. State, 51 Ga. Thach. C C. (Mass.) 132; Reg. 2. Hath535; s. C., I Am. Cr. Rep. 227; State v. away, 8 Low. Cap. J. 285; 2 Arch. C. Pr. Harrison, 69 N. C. 143; s. c., i Green Cr. 803; Rex v. Ward, 2 East C. L. 861; S. Rep. 537:

C., 2 Ld. Raym. 461; 2 Str. 747; King v. Intention to Defraud Particular Person. Crocker, 2 Leach, 987; Rex v. Goate, I -Some of the States, however, hold that Ld. Raym. 737; Rex v. Crooke, 2 Str. there must be an intent to defraud some 901. particular person, and that the indici- Concurrence of Guilty Knowledge and ment must specify such person.

Intent.— The crime is complete when the In Barnum v. State, 15 Ohio, 717; s. act and guilty knowledge concur with the C., 45 Am. Dec. 601, the court say that, intent to defraud. So, where a forged “to constitute forgery, there must be the check was passed in consideration of ilfraudulent making or alteration of the in- licit intercourse, and of cigars and liquors strument, with the intent to defraud some sold without license at a house of prosti

That intent must be laid, and the cution, held, that the illegality of the person on whom it was designed to ope- consideration did not affect the criminal rate; and the indictment must charge both character of the act. Dunn v. People, 4 duly. And the instrument must be Colo. 126. such that it may have the tendency pre

4. Williams v. State, 61 Ala. 33; Reg. cisely which is averred.” See Williams v. Hoatson, 2 Car. & K. 777; Reg. v. v. State, 51 Ga. 535.

Marcus, 2 Car. & K. 356; Rex 7. Holden, In England since the statute of 15 Russ. & R. C. C. 157. Vict. c. 100, $ 8, although there must be 6. Billings v. State, 107 Ind. 54; s. C., an intent to defraud a particular person, 57 Am. Rep. 77; State v. Pierce, 8 Iowa, it need not be specifically alleged. Reg. 231; Henderson 21. State. 14 Tex. 503; v. Hodgson, 7 Cox C. C. 122; s. C., Dears. Reg, v. Nash, 2 Den. C. C. 493; s. C., 12 & B. C. C. 3. In the last case, the pris- Eng. L. & Eq. 578; 1 Whart. Cr. L. S oner was indicted for forgery for coun- 694; Rex 2. Holden, Russ. & R. C. C. terfeiting a diploma of the College of 154. Surgeons and hanging it up in his house, No Person to be Defrauded. --Mr. Bishand exhibiting it to visitors as genuine. op, however, maintains a contrary opinThe court held that this was not forgery, ion. He says: “ The English judges because there was no intent to defraud were divided upon the question whether, any person in particular,

in the absence of evidence of some one 3. Williams v. State, 61 Ala. 33; Rem- existing on whom the fraud could ope. bert 2. State, 53 Ala. +67; s. C., 25 Am. rate, in the case of a forged will, a count Rep. 639; Jones v. State, 50 Ala. 161; charging an intent to defraud a person Dunn v. People, 4 Colo, 126; State v. unknown could be supported. Reg. v. Pierce, 8 Iowa, 231; Arnold v. Cost, 2 Tuffs, i Den. C. C. 319. And under Gill & J. (Md.) 219; s. C., 22 Am. Dec. Stat. 13 & 14 Vict. c. 100, $ 8, which

it being enough if injury may possibly be inflicted in the future. 1

3. Must be Calculated to Deceive.—To constitute forgery, the instrument when forged must be such as would tend to prejudice the rights of another, 2 and such in law as would be available to work the intended fraud or injury; the distinguishing characteristic being the crafty fraud and deceit whereby it is designed to injure some one. The resemblance of the forged to the genuine instrument must be such as might deceive a person of ordinary caution or observation” or a person of ordinary business capaci

provided, that 'It shall be sufficient, in Hodgson, Dears. & B. C. C. 336; s. C., 7 any indictment for forging, uttering, of. Cox C. C. 122. fering, disposing of, or putting off any 2. Barnum v. State, 15 Ohio, 717; instrument whatsoever, or for obtaining, s. C., 45 Am. Dec. 601. In this case the or attempting to obtain, any property by court held that evidence which tends to false preiences, to allege that the defend- prove that the forged instrument could ant did the act with intent to defraud not under any state or circumstances any particular person; and, on the trial prejudice the rights of any one, is comof any of the offences in this section men- petent to go to the jury. tioned, it shall not be necessary to prove 3. People v. Tomlinson, 35 Cal. 507; an intent on the part of the defendant to Barnum v. State, 15 Ohio, 717; s. C., 45 defraud any particular person, but it shall Am. Dec. 601. be sufficient to prove that the defendant 4. State v. Floyd, 5 Strobh. (S. C.) L. did the act charged, with an intent to de- 58; s. C., 53 Am. Dec. 689. fraud.' (Re-enacted, slightly changed 5. Garmire v. State, 104 Ind. 444; terms, 24 & 25 Vict. c. 98, § 47.) The Wilkinson v. State, 10 Ind. 372; State v. opinion of the judges seemed to be, that McKenzie, 42 Me. 392; Com. v. Stephenthe offence might be committed, though son, 65 Mass. (11 Cush.) 481; s. C., 59 there were no person in existence on Am. Dec. 154; Com. v. Smith, 24 Mass. whom the fraud could operate. Reg. v. (7 Pick.) 137; State v. Carr, 5 N. H. 367; Nash, 2 Den. C. C. 493; s. C., 12 Eng. L. Stale v. Van Hari, 17 N. J. L. (2 Hair.) & Eq. 629. But afterward, on full con- 327; People v. Peabody, 25 Wend. (N. Y.) sideration, they decided that this statute 472; State v. Covington, 94 N. C. 913; concerns only the form of the indictment, s. C., 55 Am. Rep. 650; Dement v. State, not the law relating to the offence, which 2 Head (Tenn.), 595; s. C., 75 Am. Dec. stands now as it stood before; there 747; Buckland v. Com., 8 Leigh (Va.), being, it seems, a necessity for some 732; United States v. Turner, 32 U. S. person to exist who can be defrauded." (7 Pet.) 132; bk. 8, L. ed. 633; United Reg. v. Hodgson, Dears. & B. C. C. 493; States v. Sprague, ii Biss. C. C. 376; S. C., 36 Eng. L. & Eq 626. In another United States v. Morrow, 4 Wash. C. C. place, he says: “If there is in existence 733; Reg. 2. Smith, Dears. & B. C. C. no being or corporation to be injured by 566; Rex v. Collicott, 2 Leach C. C. 1048; the cheat . ,-State v. Givens, 5 Ala. s. C., 4 Taunt. 300; Russ. & R. C. C. 212; 747; People v. Peabody, 25 Wend. (N. Y.) 2 East P. C. 858. 472; Reg. v. Tuffs, i Den. C. C. 319;- Resemblance of Instruments.-A charge or, if the forged writing, were it genuine, of forgery may be based upon an instruwould be neither apparently nor really ment which bears such a resemblance to valid in law,-People v. Harrison, Ś the genuine instrument it is intended to Barb. (N. Y.) 560; Rex v. Burke, Russ. represent as is calculated to deceive; and & Ry. 496;—or if, for any other reason, the person forging an instrument cannot it could not defraud any one,- Barnum v. escape punishment where there is such State, 15 Ohio, 717; s. C.. 45 Am. Dec. a resemblance, upon the ground that the 601; Reg. v. Marcus, 2 Car. & K. 356; forgery was such as would have deceived Reg. v. Nash, 2 Den. C. C. 493; s. C., 12 only stupid and careless persons. GarEng. L. & Eq. 578; Rex v. Knight, I mire v. Stale, 104 Ind. 444. Salk, 375; s. c., I Ld. Raym. 527:—the Unnecessary that Real Instrument Would transaction is not forgery.” I Bish. Cr. Have Been Effectual.-In forgery, it is of L. $ 748.

no consequence whether the counterfeit 1. Rex v. Nash, 2 Den. C. C. 433; Rex be of such as, if real, would be effectual 3. Sterling, i Leach, 99. Compare Rex v. to the purpose it intends, so long as

[ocr errors]

on

one.

court

there is sufficient resemblance to impose probably have been mislead and deceived

persons of ordinary observation, by it. The intent to defraud the bank though persons of experience could not may exist, and may be found by the jury, be deceived by it. Hess v'. State, 5 Ohio, though the officers of the bank, from 5: S. C., 22 Am. Dec. 767; People v. their better acquaintance with the genuine Krummer, 4 Park. Cr. Cas. (N. Y.) 217. handwriting of the drawer, would readily

Forgery of Bond.–To constitute the have detected the check as a couplerieit offence, it is not necessary that the fraudu

The authorities to this point may lent bond should purport to be an obliga- be found in 2 Hale P. C. 950; Rex v. tion of the United States, or that the Mazagora, Russ. & R. C. C. 291; Rex v. similitude should be such as to deceive Sheppard, Russ. & R. C. C. 169. experts or cautious men; it is sufficient Awkward Forgery.-In a case reported that it be calculated to deceive honest, in the Vienna Juristische Blaettir, one sensible, and unsuspecting men of ordi- Caroline J., a waiter in the service of nary observation and care, dealing with a Colonel P., took a blank check from his man supposed to be honest. United check-book, and had her son fill it for an States v. Sprague, u Biss. C. C. 376. amount of 200 florins, date it, sign Col.

Name Misspelled.—An indictment will onel P.'s name to it, and present it to S. lie for the forgery of an obligation for M. Rothschild for payment. The filling the payment of money although the of the blank was so awkwardly done, the signature is misspelled. State v. Coving- signature not resembling in the least ton, 94 N. C. 913; s. C., 55 Am. Rep. that of Colonel P., that the forgery was 650.

discovered by the cashier, and payment In Gooden v. State, 55 Ala. 178, the refused. The lower court directed a vername attempted to be forged was Thweatt, dict of acquittal, on the ground that the but the forged instrument had it Threet. false check was not at all adapted to There was a conviction; and the appellate deceive. On appeal, the court of cassacourt approved the ruling of the lower tion reversed the judgment below, saying:

on that question. See also 3 “The punishment of an attempt is based Greenl. Ev. 103.

upon this: that it manifests the intention Forged Check. - In those cases where to commit an offence in a manner enthe invalidity is to be made out by proof dangering the order of law. Such danger, of some extrinsic fact, if the instrument as is generally recognized in the Austrian is good on its face it may be capable of decisions and doctrine, can only be denied effecting fraud. See State v. Johnson, • where the attempt is made with means 26 Iowa, 207; State v. Pierce, 8 Iowa, 231. completely and unqualifiedly (in abstracto) Thus, where a check is apparently a valid unfit to aitain the object. If the cause obligation, and would create a liability of failure was only in the manner of upon the party if genuine, it has a tend- execution or in the concrete quality or ency to defraud, and is within the statute. operation of the object used (as in fraud State v. Coyle, 41 Wis. 267; s. C., 2 Am. of him whose deceit was planned), then Cr. Rep. 119. However, where a check a punishable attempt is to be assumed. is not made payable to the order of any The aquittal was erroneous. A forged one or to bearer, it is so imperfect that instrunient is adapted to deceive." This no one could be defrauded by it. Wil- is the doctrine of Mazagora's Case, Russ. liams v. State, 51 Ga. 535; s. C., I Am. & R. C. C. 291. See Com. 2. StephenCr. Rep. 237.

son, 65 Mass. (11 Cush.) 481; s. C., 59 It is held, in the case of Com. v. Am. Dec. 154; Reg. v. Coulson, i Den. Stephenson, 65 Mass. (11 Cush.) 481; C. C. 592; s. C., 24 Alb. L. J. 83. s. C., 59 Am. Dec. 154, that a person may Defective Instrument.-Where a forged be guilty of forgery although the check instrument is so defectively executed as drawn by him has so little resemblance not to deceive anybody, it does not to the genuine check of the person amount to the crime of forgery. See whose name was forged that it is not Rembert v. State, 53 Ala. 467; S.C., 25 likely to deceive the officers of the bank Am, Rep. 639; Williams 2'. State. 51 Ga. on which it was drawn. The court say: 525; s. C., I Am. Cr. Rep. 237; People i'. “ It is not necessary that there should be Galloway. 17 Wend. (N. Y.) 540. so perfect resemblance to the genuine The Omission of Important Words renhandwriting of the party whose name ders an instrument fatally defective; is forged as would impose on persons and such an instrument is so imperfect having particular knowledge of the hand- as to be incapable of sustaining a charge writing of such party; nor is it necessary of forgery. Thus an indictment charging that the officers of the bank upon which one of the forgery of a bank check payable a check purported to be drawn would "10 the order of "such instrument is

was

an

fatally defective and too imperfect to currency is intended. Without that, we defraud any one.

Williams v. State, 51 think the legal intendment is the same. Ga. 535; s. C., I Am. Cr. Rep. 237, fol. Murrill v. Handy. 17 Mo. 106, was an lowing People v. Galloway, 17 Wend. action on a promissory note wherein the (N. Y.) 543. The latter case

makers promised to pay the payee 'the indictment for obtaining the signature sum of fifty-two 25-100, for value received.' of a person to a written instrument by “The word dollars, as well as the dollarfalse pretences. The written instrument mark, were entirely omitted. It was held was a deed of lands by a wife, conveying that the note, on its face, was for fiftyreal estate belonging to her in her own two dollars and twenty-five cents. Some right, executed by her with her husband, stress was laid upon the words 'the sum' at the solicitation of the husband, under in the instrument, but we think the word the pretence that it was a deed of lands ‘pay' is equally significant. Other cases belonging to him. There not being an to the same effect are cited by the acknowledgment of the instrument by attorney-general, although perhaps they the wife in the mode prescribed by law are not so directly in point as those above for passing the estate of a feme covert, referred to.” Baysinger v. State, 77 Ala. it was held not to be such an instrument 63; s. C., 54 Am. Rep. 46. as is contemplated by the statute; and the In the case of State 1. Schwartz, 64 conviction was reversed.

Wis. 432, an instrument in the form of a Words Necessarily Implied.—In Booth promissory note for the payment of v. Wallace, 2 Root (Conn.), 247, where a *25.00, as per deed, 10 per cent till paid " promissory note was for “thirty-two, was held to be a note for twenty-five twelve shillings and five pence,” the dollars upon its face. The court said: court said that the word “pounds ” after “The controlling question is, therefore: the word "thirty-two” is necessarily im- Does the forged insirument purport to be, plied, and that the omission, it is clear, was on its face, a promise by Braggs, the owing to the mistake of the scribe who maker, to pay the defendant wenty-five drew the note, and that the implication is dollars, although it contains neither the so clear and strong that it is not neces- dollar-mark northe word 'dollars'? If this sary it should be averred in the declara- question be answered in the affirmative, tion more fully:

it is entirely clear that such forged Omission of the Dollar-mark.-The dol- instrument was properly admitted in evilar-mark ($) comes from the letters U dence; that such alteration constituted and S, which, after the adoption of the the crime of forgery; and that the informaFederal Constitution, were prefixed to tion is sufficient, without an averment the Federal currency, and afterwards therein that the figures 25.00 meant

into one another, the U twenty-five dollars. On principle and being made first and the S over it. authority, we think the question should be Gleanings for the Curious, 230. This answered affirmatively. mark being used simply as the emblem In Rembert v. State, 53 Ala. 467; S. C., of the nationality of the currency, its 25 Am. Rep. 639, the entire instrument omission will be supplied and will not charged to have been forged was in the affect the instrument. This question first following language: “Due 8.25 Askew arose in the case of Northrop v. Sanborn, Brothers." There was a conviction; and 22 Vt. 433; s. C., 54 Am. Dec. 83, on an after elaborate consideration of order requesting the drawee to pay the authorities, the judgment of conviction bearer "37.89," without anything else on was affirmed. Speaking of the general the face of the order to denote that dollars rule, that if the instrument is void on its and cents were intended. The court said, face it cannot be the subject of a forgery, Judge Redfield delivering the opinion: the court said it must be taken with this ** We think it not necessary to say that limitation: “When the instrument does the order expressed for 37.89 is so far not appear to have any legal validity, nor unintelligible that it is void. The law show that another might be injured by it, of the United States Congress establish- but extrinsic facts exist by which the ing our national currency having declared holder of the paper be enabled to defraud that it shall consist of the dollar as a another, then the offence is complete, and unit and the decimal parts as dimes and an indictment averring the extrinsic facts, cents, it would seem the necessary intend- disclosing its capacity to deceive and ment that a contract expressed in figures defraud, will be supported. The fact should be in the currency of the country. that the paper is incomplete or imperfect If prefixed by the usual sign ($), no one in itself, and that without the knowledge could entertain doubt; and that is nothing of extrinsic facts it does not appear that but a mark to signify that the national it has the vicious capacity, only renders

were

run

an

« PreviousContinue »