This species of larceny is debarred of the benefit of clergy by statute 23 Hen. VIII. c. I 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 footpath, was not punished with death, (k) but was open to the benefit of clergy, till the statute 3 & 4 W. and M. c. 9, which takes away clergy from both principals and accessaries before the fact, in robbery, wheresoever committed. (33)

II. Malicious mischief, or damage, is the next species of injury to private property which the law considers as a public crime. (34) 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.

And, first, by statute 22 Hen. VIII. c. 11, perversely and maliciously to cut down or destroy the powdike in the fens of Norfolk and Ely is 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,

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

ened 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 his 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. & R. C. C. 419. And where a heavy diamond pin, with a corkscrew stalk, which was twisted and strongly fastened in a lady's hair, was snatched out and part of the hair torn away, the judges came to a similar decision. 1 Leach, 335The 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. I 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. I Leach, 280. I East, P. C. 709.CHITTY. 2 Russ. on Crimes, 87. Archbold's Crim. Pr. & Pl. 1287. Malone's Crim. Briefs, 215. Barbour's Crim. Law, 142 & 384. U. S. Crim. Law (Lewis) 445. There can be no conviction for larceny under a bad indictment for robbery. Clary et al. v. State, 33 Ark. 561 (1878). The penal code of Georgia makes but one offence of robbery, and two grades: robbery by force and robbery by intimidation. Long v. State, 12 Ga. (Cobb) 293 (1852). Robbery includes the offence of stealing from the person without force and violence or putting in fear, and under an information for robbery the accused may be convicted of stealing from the person. Brown v. State, 33 Neb. 354 (1891). (33) See stat. 7 & 8 Geo. IV. 22 6 and 7.

(34) See I Bishop's New Criminal Law, 568. Revised Statutes of Massachusetts make certain wilful trespasses, such as cutting down or destroying timber, etc., crimes. State v. Clark, 5 Dutcher (N. J.) 99. "Unlawfully, wilfully and maliciously, did break in pieces and destroy two windows," held merely an aggravated trespass, not a public crime. Kilpatrick v. People, 5 Denio (N. Y.) 277, (1848.) It is a general rule, governing the law of malice, that when a man commits an act, unaccompanied by any circumstances justifying its commission, the law presumes that he acted advisedly, and with an intent to produce the consequences which ensued. People v. Petherham, 64 Mich. 252 (1887.) In America it is necessary to prove malice directed against the owner of the property injured. 2 Russ. on Crimes, 776. 4 Lawson's Criminal Defences, 600. The killing of an animal during an act of trespass on one's crops to prevent their destruction is not malicious mischief. Branch v. State, 41 Tex. 622 (1874.) 2 Waterman's Crim. Proc. 508 (1860.) 2 Archbold's Crim. Pr. & Pl. 1469. The act must be done out of cruelty, hostility, or revenge. Wing v. Wing, 66 Me. 64 (1887.) Comm. v. Walden, 57 Mass. (3 Cush.) 558, (1849.) Maiming or wounding an animal without killing it, is not an indictable offence either at common law or under the statute. State v. Beekman, 3 Dutcher (N. S.) 124 (1858).

public navigations, and bridges, erected by virtue of those acts of *244] *parliament. 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 accessary 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 & 23 Car. II. c. 7, maliciously, unlawfully, and willingly, in the night-time to burn, or cause to be burned or destroyed, any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns, (35) 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, 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 correction. By statute 1 Anne, 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 Anne, st. 2, c. 18, making any hole in a ship in distress, or stealing her pumps, or aiding or abetting such offence, or wilfully doing any thing tending to the immediate loss of such ship, is felony without benefit of clergy.(36) By statute I 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 person 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

for which treble damages shall be recovered. By statute 4 & 5

it their practice to deface them, either by open outrage, or by privily *245] cutting, or casting aqua-fortis (37) *in the streets upon such as wore

them. (38) By statute 9 Geo. I. c. 22,(39) commonly called the Waltham black act, occasioned by the devastations committed near Waltham, in Hampshire, by persons in disguise 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;) (7) 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 further enacted that to set fire to any house, barn, or out-house, (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 to any hovel, cock, mow, or stack of corn, straw, hay, or wood; or unlawfully or 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 (2) 3 Inst. 197.

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

(35) By stat. 24 & 25 Vict. c. 97, 40, this offence is punishable with penal servitude for any term not exceeding fourteen years nor less than three, or with imprisonment for any term not exceeding two years, with or without hard labor, and with or without solitary confinement.

(36) See stat. 24 & 25 Vict. c. 97, 88 42, 43 and 44.

(37) [Commercial nitric acid.]

(38) This statute was repealed by 7 Geo. IV. c. 64, and no subsequent enactment on the subject has been made.-CHITTY.

(39) Repealed.

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. (40) 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; (41) or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or depth of coal.(42) 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 seaport; 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 im- [*246 prisonment 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 goss, furze, or fern growing in any forest or chase is subject to a fine of five pounds. (43) By statutes of 6 Geo. III. c. 36 & 48, and 13 Geo. III. c. 33, wilfully to spoil or destroy any timber or other trees, roots, shrubs, or plants is for the two first offences liable to pecuniary penalties; and for the third, if in the daytime, and even for the first, if at night, the offender shall be guilty of felony and liable to transportation for seven years. (44) 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, (45) or any fences for enclosures 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, etc., belonging to the plate-glass company, with intent to steal, cut, or destroy any of their stock or utensils, or shall wilfully and maliciously cut or destroy the same. And these are the principal punishments of malicious mischief.

III. *Forgery, (46) or the crimen falsi, is an offence which was

[*247

(n) Ff. 47, 7, 2.

(40) See stat. 24 & 25 Vict. c. 97, & 32.

(41) Vide ib. 22 30 and 31.

(42) Vide ib. 19.

(43) Repealed.—CHITTY.

(44) The statutes mentioned in the text are repealed.—CHITTY.

(45) See Stat. 24 & 25 Vict. c. 97, 20, 29.

(46) FORGERY.-We will endeavor to elucidate the nature of, and what constitutes, this offence, by considering-1st, What false making is sufficient; 2d, With what intent the forgery must be committed; and 3d, How far the instrument forged must appear to be genuine. The consideration of what instruments may be the subjects of forgery will follow. See, in general, 3 Chit. C. L. 2 ed. 1022 to 1044, a.

1. WHAT FALSE MAKING IS SUFFICIENT.—It is not necessary that the whole instrument should be fictitious. Making a fraudulent 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. I Hale, 683, 684, 685. 4 T. R. 320. Altering a bill from a lower to a higher sum is forging it; and a person may be indicted, on the 7 Geo. II. c. 22, for forging such an instrument, though the statute has the word alter as well as forge; and in the same case it was held no ground of defence that before the alteration

punished by the civil law with deportation or banishment, and sometimes with death. (o) It may with us be defined at common law to be "the fraudulent making or alteration of a writing to the prejudice of another man's

(0) Inst. 4, 18, 7.

it had been paid by the drawer and re-issued. R. & R. C. C. 33. 2 East, P. C. 979, S. C. So altering a banker's one-pound note by substituting the word ten for the word one is a forgery. Russ. & Ry. C. C. IOI. See 2 Burn, J., 24 ed. 491, and 2 East, P. C. 986. If a note be made payable at a country banker's, or at their banker's in London, who fails, it is forgery to introduce a piece of paper over the names of the London bankers who have so failed, containing the names of another banking-house in London. Russ & Ry. C. C. 164. 2 Taunt. 328. 2 Leach, 1040, S. C.; and see 2 East, P. C. 856. 2 Burn, J., 24 ed. 492 S. C. Expunging an endorsement on a bank note with a liquor unknown has been holden to be an erasure within 8 & 9 W. III. c. 20. 3 P. Wms. 419. The statute law of forgery is now embodied in the statute 24 & 25 Vict. c. 98. The instrument must in itself be false; for if a man merely pass for another, who is the maker or endorser of a true instrument, it is no forgery, though it may be within the statute of false pretences. I 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 banknotes 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. I 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 [At first sight, immediately] fitted to pass for the writing which it represents. I Leach, 179. As to how far the instrument should appear genuine, and the forging of fictitious names, see infra [Below], 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. & Ry. C. C. 291; and see id. 769.

An indictment for forgery, which alleges the offer to pass a due bill with intent to defraud the person whose name is forged to the paper, is a good indictment; for if the purpose of the defendant was to induce or compel the maker to pay the forged due bill, the intent to defraud him is clear, and there can be no objection to charging the intent in that mode. State v. Haynes, 6 Caldwell (Tenn.) 550. The essence of the offence of forgery "being intent to defraud,' an indictment for forgery need not contain the word feloniously. State v. Murphy, 17 R. I. 698 (1892). The execution of a promissory note in the name of a fictitious person or under an assumed name with intent to defraud is forgery. State v. Wheeler, 20 Ore. 192 (1890).

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 Keb. 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

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

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. I 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, (1 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.