V. WHO MAY COMMIT FORGERY.-All persons responsible for their acts may commit the crime of forgery. The offence may be committed by agent, the principal himself being present, as well as by the party's own hand. He is the principal who directs the forgery of an instrument, and utters the same, and receives the proceeds thereof, though the writing be by another under his direction. But a partner cannot be indicted for forgery of an instrument or writing with intent to defraud the copartnership.3 And where an officer of a corporation, that is incapable of acting except through its officers, executes an instrument by himself as the officer of the corporation, he is not guilty of forgery, either at common law or under statute, although he has in fact no authority from the corporation to execute the instrument.

VI. UTTERING AND PUBLISHING.-The uttering of a forged instrument is an independent offence,5 to constitute which it is not necessary to show that the defendant was implicated in the forgery."

The offence is complete on the passing of the forged instrument from the possessor to a person other than the wrong-doer, his agent, or servant. It makes no difference on the character of the offence whether the passing is by the party in person or by an agent.

1. What is, Generally-Uttering and publishing of a forged instrument consists in the delivery of such instrument to another for value, with an intention that the same shall be put in circu

Greenl.) 265; Savage's Case, Styles, 12). It appears to be directly within the cases cited holding that an instrument purporting to be void on its face, and not shown to be operative by averment, if genuine, is not the subject of forgery. How is it possible, in the nature of things, that it could be otherwise? Void things are no things.' Was it ever heard of, that the forgery of a nudum pactum, a thing which could not be declared on or enforced in any way, is yet indictable? It is the forgery of a shadow

1. Com. v. Stevens, 10 Mass. 181; People v. Bassford, 3 N. Y. Crim. Rep.

Presence of Person.-At common law, actual presence at the time of the uttering of instrument is not essential,-See Rex v. Soares, 2 East P. C. 974; s. c., Russ. & Ry. C. C. 25; Rex v. Stewart, Russ. & Ry. C. C. 363; Rex v. Badcock, Russ. & Ry. C. C. 294;-a constructive presence at the time of the uttering being sufficient. 2 Russ. on Cr. (5th Eng. ed.) 690.

3. Com. v. Brown, 10 Phila. (Pa.) 184. 4. Mann v. People, 15 Hun (N. Y.), 155. 5. Com. z. Houghton, 8 Mass. 107; Brown v. Com., 8 Mass. 59.

6. State v. Bassow, 30 La. An. 202. Conversely, under an indictment for forgery, there can be no conviction of uttering. See State v. Burgson, 53 Iowa, 318; State 7. Snow, 30 La. An. (pt. 1) 401.

It is improper to join in one indictment the offence of forgery and that of uttering forged paper. See State v. McCormack, 56 Iowa, 585. Compare Whart. Cr. Pl & Pr. § 285.

7. People v. Rathbun, 21 Wend. (N. Y.) 509.

8. United States v. Morrow, 4 Wash. C. C. 733.

9. People v. Ah Woo, 28 Cal. 205; Com. v. Searle, 2 Binn. (Pa.) 332; s. c., 4 Am. Dec. 446; United States v. Nelson, 1 Abb. C. C. 135.

lation,1 and an intention thereby to defraud by using it in some way so as to get money or credit thereon or by means thereof.3 To constitute the uttering and publishing of an instrument alleged to have been forged, there must be a declaration or assertion directly or indirectly, by words or actions, that the instrument is good.4

To constitute uttering and publishing a forged instrument, it is

1. State v. Wilkins, 17 Vt. 151; United States v. Nelson, 1 Abb. C. C. 137.

2. State v. Redstrake, 39 N. J. L. (10 Vr.) 365; Com. v. Goodenough, Thach, C. C. (Mass.) 132; Reg. v. Craig, 7 Up. Can. C. P. 241; Rex v. Holden, 2 Taunt. 334; Rex v. Powell, 2 W. Bl. 787.

3. Reg. v. Ion, 21 L. J. M. C. 166; s. c., 6 Cox C. C. I.

"utter

Uttering Spurious Notes.-Under a statute which punishes one who shall or "pass" spurious notes, knowing them to be such, with intent to defraud, and which does not in terms require that they be uttered as true or genuine (act of June 30, 1864; 13 Stat. at L. 221, § 10), a defendant may be convicted of uttering or passing, upon proof that he sold and delivered the notes as spurious notes to another person, with intent that they should be passed upon the public as genuine. United States v. Nelson, 1 Abb. C. C. 135. 4. State v. Calkins (Iowa), 34 N. W. Rep. 777; People v. Brigham, 2 Mich. 550; Falden v. State (Neb.), 14 N. W. Rep. 412; Smith v. State, 20 Neb. 284; State v. Redstrake, 39 N. J. L. (10 Vr.) 365; Leonard v. State, 29 Ohio St. 468; Com. v. Searle, 2 Binn. (Pa.) 332; s. c., 4 Am. Dec. 446; Mathews v. State, 33 Tex. 102; Chahoon v. Com., 20 Gratt. (Va.) 733; United States v. Mitchell, 1 Bald. C. C. 366; Reg. v. Green, Jebb C. C. 281.

Bringing of a Suit Upon a Forged Paper, as Counsel, for the purpose of recovering the moneys purporting to be due by such paper, amounts in law to an uttering or attempting to employ such a paper as true; and if the act be done with knowledge of the forgery and intent to defraud, it constitutes an offence within the meaning of the Virginia Code, ch. 193, § 5, which punishes an attempt to employ as true such forged writing, knowing it to be forged. Chahoon v. Com., 20 Gratt. (Va.) 733.

Forged Check-Swindling Advice. -One B. a stranger in Omaha, met one T., who professed to have a large farm near St. Louis, and desired to employ B. to superintend it. While they were conversing, a pretended freight agent appeared, who was introduced by T. to B. as such, and who demanded of T. the payment of a

pretended freight bill of $65. T., pretending he had not sufficient change to pay the bill, presented to B. a forged check on an Omaha bank for $250, saying he could get the money on presentation, and asked him to cash it. Held, an uttering of the check, although it was not actually transferred to B. Smith v. State, 20 Neb. 285.

Forged Order for Goods-What Constitutes the Offence.-Upon trial of an indictment for swindling, it appeared that the defendant applied to purchase goods on credit from a merchant, stating that she lived with a planter, and had cotton in his possession, out of which she would pay for the goods. The merchant refused to sell her the goods except on an order from the planter, whereupon she went out and soon returned with an order purporting to have been signed by the planter, but alleged to be a forgery. On presentation of the order, the goods were wrapped up and placed on the counter for her, but before they passed into her manual possession the fraud was discovered, and the merchant replaced the goods on his shelves. The sale was agreed to by the merchant solely upon the credit of the supposed order, and in no degree upon the representations of the appellant. Held, that the indictment should not have been for swindling, but for attempting to pass a forged instrument, knowing it to be a forgery. Mathews v. State, 33 Tex. 102.

Presentation of a Draft or Order for Money, to the person to whom it purports to be directed, for payment thereof, by one knowing it to be forged, although payment is refused and the draft is returned to the presenter, is an uttering and publishing within the meaning of the statute. People v. Brigham, 2 Mich. 550.

When Several Acts Constitute One Offense.-The defendant delivered, at the same time and by the same act, to the teller of a bank, four forged checks, which purported to have been drawn by four different parties. Held, that this constituted but one offence of uttering forged checks, and that a conviction for uttering one of the checks was a bar to a conviction for uttering the others. State v. Egglesht, 41 Iowa, 574; s. c., 20 Am. Rep. 612.

necessary that there should be a knowledge on the part of the defendant that the document is false and fraudulent. This is in itself implied in an intent to defraud. Where a person is charged with uttering and publishing forged notes or other instruments, knowledge of the character of the writing may be shown by proving the possessing or uttering of other similar forged instruments,3 even though such offences occurred subsequently to the offence under trial, or have been the subject of other indictments, where it appears that such offences were part of a common system.5

Various acts have been held to constitute uttering, such as depositing with a bank for collection notes with forged indorsements,

1. See Com. v. Searle, 2 Binn. (Pa.) 332 s. c., 4 Am. Dec. 446; Sands v. Com., 20 Gratt. (Va.) 800; Chahoon v. Com., 20 Gratt. (Va.) 733; United States v. Mitchell, Bald. C. C. 367; United States v. Carter, 2 Cr. C. C. 243; Reg. v. Welch, 2 Den. C. C. 78; Rex v. Morris, 2 Leach C. C. 1096; Rex v. Badcock, Russ. & Ry. C. C. 249; Rex v. Collicott, Russ. & Ry. C. C. 212; Rex v. Shukard, Russ. & Ry. C. C. 200; Rex v. Soares, Russ. & Ry. C. C. 25.

2. I Whart. Cr. L. (9th Ed.) 703.

3. Mason v. State, 42 Ala. 532; People v. Frank, 28 Cal. 507; Steele v. State, 45 Ill. 152; McCartney v. State, 3 Ind. 333; s. c., 56 Am. Dec. 510; Com. v. Stearns, 51 Mass. (10 Metc.) 256; State v. McAllister, 21 Me. 139; Com. v. Edgerly, 92 Mass. (10 Allen) 184; Com. v. Hall, 86 Mass. (4 Allen) 305; State v. Twitty, 2 Hawks (N. C.), 248; s. c., II Am. Dec. 779; Reed v. State, 15 Ohio 217; State v. Odel, 3 Brev. (S. Č.) 552; State v. Williams, 2 Rich. (S. C.) 418; s. c., 45 Am. Dec. 741; Peek v. State, 2 Humph. (Tenn.) 78; Wash v. Com., 16 Gratt (Va.) 530; Hendrick v. Com., 5 Leigh (Va.). 708; Spencer v. Com., 2 Leigh (Va.), 751; United States v. Doebler, Bald. C. C. 519; United States v. Ninman, Bald. C. C. 292; United States v. Craig, 4 Wash. C. C. 729; Reg. v. Salt, 3 F. & F. 834; Reg. v. Moore, I F. & F. 73; Rex v. Fuller, Russ. & Ry. C. C. 308; Reg. v. Wylie, 1 New Rep. 92; s. c., 2 Bennett & H. Lead. C. C. 26; Rex v. Ball, Russ. & Ry. C. C. 132; s. c., I Moo. C. C. 470; Rex v. Hough, Russ. & Ry. C. C. 120.

jured, the crime is perpetrated. People v. Rathbun, 21 Wend. (N. Y.) 509.

Uttering Forged Letter. A person, knowing the contents of a forged letter, and with intent to obtain money thereon, delivered it, sealed, to the clerk of the person to whom it was addressed, and whom he supposed as authorized to open it. Held, evidence of uttering it. United States v. Carter, 2 Cr. C. C. 243.

4. Hoskins 7. State, 11 Ga. 92; Com. v. Stearns, 51 Mass. (10 Metc.) 256; Reg. v. Forster, Dears. C. C. 456; s. c., 6 Cox C. C. 521. Compare Rex v. Smith, 4 Car. & P. 411; Rex v. Smith, 2 Car. & P. 633.

5. Com. v. Price, 76 Mass. (10 Gray) 472; s. c., 71 Am. Dec. 668; Reg. v. Forster, Dears. C. C. 456; s. c., 6 Cox C. C. 521.

Possession of Counterfeit Bills. In the case of Com. v. Price, supra, it was held that an indictment for having a counterfeit bill at Boston, "with intent then and there to utter and pass the same," is supported by evidence of possession, with intent to utter and pass at a time and place out of the State; for possession of counterfeit bills of a bank in Massachusetts with intent to pass them in another State being within the statute,Mass. Rev. Stat. c. 107, s. 8; Com. v. Cone, 2 Mass. 132;-and that evidence that the defendant subsequently had in his possession other and different counterfeit bank bills, is admissible to show guilty knowledge and intent. See McKenney v. Dingley, 4 Me. (4 Greenl.) 172; Bridge v. Eggleston, 14 Mass. 245; Com. v. Turner, 44 Mass. (3 Metc.) 19; Uttering a Promissory Note with forged Bottomley v. United States, 1 Story C. indorsements is within the statute of New C. 143; Rex v. Ball. Campb. 324; Rex York against forgery, although the pass- v. Roberts, Campb. 399; Rex v. Smith, ing of the note is accompanied with the 4 Car. & P. 411; Robinson's Case, 2 words which would exonerate the indors- East P. C. 1110, 1112; Rickman's Case, er if the indorsements were genuine. If, 2 East P. C. 1035; Rex v. Northampton, by possibility, the indorsers may be in- 2 Maule & S. 262; Rex v. Wylie, 1 New

with intent to defraud, in a case where both the holder and the maker know of the existence and character of the forged indorsement; or passing the forged note of an expired bank;2 offering, whether the offer be accepted or not, lucri causa, with knowledge of the forgery;3 recording a forged mortgage, whether the instrument itself was produced at the time of payment or not; and the signing of a true name on the false writing of another."

But uttering counterfeit bills with the name of a fictitious cash

Rep. 92, 94; s. c., 2 Bennett & H. Lead.

C. C. 26; Reg. v. Hough, Russ. & Ry.
C. C. 120.

1. State v. Redstrake, 39 N. J. L. (10 Vr) 365; People v. Rathbun, 21 Wend. (N. Y.) 509; Poage v. State, 3 Ohio St. 229.

2. White v. Com., 4 Binn. (Pa.) 418.

3. See Smith v. State, 20 Neb. 284, s. c., 57 Am. Rep. 832; Com. v. Searle, 2 Binn. (Pa.) 332; s. c., 4 Am. Dec. 446; Sands v. Com.. 20 Gratt. (Va.) 800; Chahoon v. Com., 20 Gratt. (Va.) 733; United States v. Mitchell, Bald C. C. 367; Reg. v. Hodgson, 7 Cox C. C. 122; Reg. v. Welch, 4 Cox C. C. 430; s. c., 2 Den. C. C. 78; Rex v. Morris, 2 Leach C. C. 1096; Rex v. Franks, 2 Leach C. C 644; Rex v. Collicott, Russ. & Ry. C. C. 212; Rex v. Shukard, Russ. & Ry. C. C. 200; Rex v. Badcock, Russ. & Ry. C. C. 249; Rex v. Soares, Russ. & Ry. C. C. 25. Such as presenting a forged check or draft at a bank, although pay. ment be refused. Rex v. Crowther, 5 Car. & P. 316.

Uttering Forged Bank Notes.-Uttering forged bank notes is indictable at common law. Lewis v. Com., 2 Serg. & R. (Pa.) 551; State v. Stroll, 1 Rich. (S. C.) L. 244; Com. v. Speer, 2 Va. Cas. 65. And under statute, passing a counterfeit note in the name of a fictitious person, or under an assumed name, or on a bank which has no existence,-see State v. Givens, 5 Ala. 747: Com. v. Costello, 119 Mass. 214; State v. Hayden, 15 N. H. 355; Sasser v. State, 13 Ohio, 453; Com. v. Smith, 6 Serg. & R. (Pa.) 569; Henderson v. State, 14 Tex. 503; United States v. Turner, 32 U. S. (7 Pet.) 132; bk. 8, L. ed. 633; Rex v. Webb, 3 B. & B. 228; Rex v. Froud, I B. & B. 300; s. c,, Russ. & Ry. C. C. 389; Reg v. Rogers, 8 Car. & P. 629; Rex v. Wilks, 2 East P. C. 957; Rex v. Bolland, 2 East P. C. 958; Rex v. Lewis, Fost. 617; Reg. v. Ashby, 2 F. & F. 560; Rex v. Whiley, 2 Leach C. C. 983; s. c., Russ. & Ry. C. C. 90; Rex v. Parkes, 2 Leach C. C. 775; s. c., East P. C. 963; Rex. v. Francis, 2 Leach C. C. 209; s. c.,

Russ. & Ry. C. C. 209; Rex v. Sheppard, I Leach C. C. 236; Rex v. Lockett, 1 Leach C. C. 94; Rex v. Watts, Russ. & Ry. C. C. 436,-is indictable, even though the note, if genuine, would not be of value if on its face it purports to be good. Butler v. Com., 12 Serg. & R. (Pa.) 237; s. c., 14 Am. Dec. 679; United States v. Mitchell, 1 Bald. C. C. 367. See State v. McKenzie, 42 Me. 392; Dement v. State, 2 Head (Tenn.), 505; United States v. Morrow, 4 Wash. C. C. 70; Rex v. Collicott, 2 Leach C. C. 1048; s. c. 4 Taunt. 300; Russ. & Ry. C. C. 212, 219; Rex v. Jones, I Leach C. C. 204.

Uttering and Publishing Forged Notes. Offering for sale and selling forged promissory notes, knowing that the purchaser buys relying upon their genuineness, constitute a sufficient representation of their genuineness to constitute an uttering and publishing.' State v. Calkins (Iowa), 34 N. W. Rep. 777.

4. Perkins v. People, 27 Mich. 386; s. c., 2 Green Cr. Rep. 567; Paige v. People, 3 Abb. App. Dec. (N. Y.) 441; United States v. Brooks, 3 MacAr. D. C. 315.

Putting a Forged Deed on Record, or Averring it in Pleading, as a genuine deed, is uttering and publishing it, within the meaning of the statute. Paige v. People, 3 Abb. App. Dec. (N. Y.) 439; United States v. Brooks, 3 MacAr. D. C. 315; and collecting money upon it and indorsing the payments is also a sufficient uttering, whether the instrument itself was produced at the time of payment or not. Perkins v. People, 27 Mich. 386.

5. But if the party represents or utters a genuine instrument as his own, it is fraud or false pretences. and not forgery. See 2 East P. C. 963.

ier is said not to be an offence under the statute.1 Neither is the uttering of a deed purporting on its face to be executed by such person as the agent of the principal named therein, even though he has no authority for such making;2 nor the giving of a forged engraving to another as a specimen of skill, in the absence of any intention that it should be put in circulation ;3 nor by leaving forged notes sealed up as a deposit; nor by exhibiting forged notes or checks to another, simply for the purpose of creating a false idea of wealth or professional standing; because it is of the essence of forgery that there be a fraudulent intent.

Offering with intent to defraud constitutes an uttering, although there be no acceptance. But the exhibition of a forged note to another, or even passing it to such other, not lucri causa or with intent to defraud, is not an uttering.

2. Intent to Defraud.-To constitute the offence of uttering and publishing a forged writing there must be an intent to defraud and a knowledge of the falsity of the instrument. But it is not es

1. Com. v. Boynton, 2 Mass. 77.
2. State v. Willson, 28 Minn. 52.
3. Rex v. Harris, 7 Car. & P. 428.
4. Rex v. Shukard, Russ. & Ry. C. C.

200.

5. Rex v. Shukard, Russ. & Ry. C. C.

200.

6. Montgomery v. State, 12 Tex. App. 323. See, supra, II. 1, and infra, next division, INTENT TO DEFRAUD.

7. People v. Caton, 25 Mich. 388; State v. Horner, 48 Mo. 520; Rex v. Welch, 4 Cox C. C. 430; s. c., 2 Den. C. C. 28.

8. Reg. v. Page, 8 Car. & P. 122; Reg. v. Hodgson, Dears. & B. C. C. 3; s. c., 7 Cox C. C. 122; 36 Eng. L. & Eq. 626. The doctrine of Reg. v. Page is seriously doubted. See Reg. v. Heywood, 2 Car. & K. 352; Anon., 1 Cox Č. C. 250; Reg. v. Ion, 2 Den. C. C. 484.

9. Elsey v. State, 47 Ark. 572; Ex parte Finley, 66 Cal. 262; Barfield v. State, 29 Ga. 127; s. c., 74 Am. Dec. 49; Couch v. State, 28 Ga. 367; Holcombe v. State, 28 Ga. 66; State v. Williams, 66 Iowa, 573; State v. Hahn, 38 La. An. 169; Com. v. Goodenough, Thach. C. C. (Mass.) 132; People v. Caton, 25 Mich. 388; State v. Redstrake, 39 N. J. L. (10 Vr.) 345: Leonard v. State, 29 Ohio St. 408; Com. v. Searle, 2 Binn. (Pa.) 332; s. c., 4 Am. Dec. 446; State v. Wilkins, 17 Vt. 151; United States v. Nelson, 1 Abb. D. C. 137; United States v. Mitchell, Bald. C. C. 366; Reg. v. Craig, 7 Up. Can. C. P. 241; Reg. v. Sharman, Dears. C. C. 285; s. c., 6 Cox C. C. 312; 24 Eng. L. & Eq. 553; Rex v. Green, Jebb's C. C. 281; Rex v. Holden, 2 Taunt. 334; Rex v. Powell, 2 Wm. Bl. 787.

Uttering Knowing to be Forged.-A conviction for uttering a forged note, knowing it to be forged, may be sustained on evidence that defendant, in negotiating the note, falsely represented that he was the payee. State v. Williams, 66 Iowa, 573.

He

In the case of State v. Redstrake, 28 N. J. L. (10 Vr.) 365, the defendant was indicted for forging and also for uttering, as forged, five promissory notes. was acquitted upon the charge of forging, but convicted upon that of uttering. The circumstances were these: The notes in question contained the forged indorsement of one Clement Hall, which, it was claimed, had been placed upon them by a son of said Hall. They had been passed to defendant before maturity, and he, knowing them to be forged, had placed them in the bank where they were made payable, with direction to have them presented, and if not paid, protested, which was done. At that time the person whose name was forged knew of the existence of the forged notes. The court, on appeal, held that the intent to defraud is a material element in the crime of uttering forged paper, and that the act of defendant did not constitute the offence. See, as supporting the same doctrine, Rex v. Powell, 2 Wm. Bl. 787; Rex v. Holden; 2 Taunt. 333, where it is held that as it would be essential under an indictment for obtaining the property of another by the use of a false and forged paper as true, so under an indictment for forging and uttering, either the same should be shown, or else an intent to do the same. So also East (5 P. C. 854) says: "The deceitful and fraudulent intent appears to be the essence of