victed thereof shall be liable at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years and not less than five (ww) years; or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(x)

By the 24 & 25 Vict. c. 98, s. 19, "whosoever, without lawful *authority [*1005 or excuse (the proof whereof shall lie on the party accused), shall engrave or in anywise make upon any plate whatsoever, or upon any wood, stone, or other material, any bill of exchange, promissory note, undertaking, or order for payment of money, or any part of any bill of exchange, promissory note, undertaking, or order for payment of money, in whatsoever language the same may be expressed, and whether the same shall or shall not be or be intended to be under seal, purporting to be the bill, note, undertaking, or order, or part of the bill, note, undertaking, or order of any foreign prince or state, or of any minister or officer in the service of any foreign prince or state, or of any body corporate or body of the like nature, constituted or recognized by any foreign prince or state, or of any person or company of persons, resident in any country not under the dominion of Her Majesty, or shall use, or knowingly have in his custody or possession, any plate, stone, wood, or other material upon which any such foreign bill, note, undertaking, or order, or any part thereof, shall be engraved or made, or shall knowingly offer, utter, dispose of, or put off, or have in his custody or possession, any paper upon which any part of any such foreign bill, note, undertaking, or order shall be made or printed, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years and not less than five(xx) years; or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(y)

The prisoner was indicted for making upon a certain plate, to wit, a plate of glass, an Austrian note for the payment of one gulden. The prisoner employed a photographer to counterfeit Austrian bank notes, his directions being to take the impression of the note on glass by means of a photographic process, and then get it engraved on metal or wood, so as afterwards to strike off the notes when the proper bank-note paper could be procured from the Continent. The photographer, accordingly, took off, on a glass plate, a "positive" impression of the note, and showed it to the prisoner, who was apprehended, whilst approving of the impression and giving further directions with respect to it. The process of photography consists in exposing to the light a plate of glass properly prepared with collodion, with the note opposite, by which means the shadow or impression of the note is produced on the glass. The impression is called "a positive," and by converting it into "a negative," which is easily done, notes can either be printed by photography to any extent, on properly prepared sensitive paper, or may be engraved from as directed by the prisoner; but the impression of the note could not be printed or engraved until the positive was converted into a negative. The impression is a mere shadow on the surface of the glass, and easily washed off until fixed, and it was necessary to varnish the impression taken in order to fix it for production at the trial. It was objected that the statute did not contemplate the use of photography, but an "engraving or

making," by cutting into the surface of some material for the purpose of [*1006

taking impressions therefrom; that producing an evanescent shadow of the note on glass was not within the statute, and that the engraving of the note, which was ultimately contemplated, was never made; the objections were overruled, and, on a case reserved, it was held that the conviction was right. The words of the 24 & 25 Vict. c. 98, s. 19, are, "whosoever shall in anywise make, &c., upon any plate, &c.. any bill of exchange, &c." Now the prisoner here clearly made on a plate an undertaking or order for the payment of money. The undertaking consisted of (ww 27 & 28 Vict. c. 47.

(x) This clause is taken from the 1 Will. 4, c. 66, s. 17. There were similar provisions in the 41 Geo. 3, c. 57, s. 1. The Select Committee of the Commons struck out the words by any art or contrivance;" but, by some accident, they were not omitted in the reprint of the bill. As to hard labor, &c., see ante, p. 849.

(xx) 27 & 28 Vict. c. 47.

(1) This clause is taken from the 1 Will. 4, c. 66, s. 19. There were similar provisions in the 43 Geo. 3, c. 139, ss. 1, 2. As to hard labor, &c., see ante, p. 849.

certain words which by a certain process had been put on the plate in their exact form. The object of the statute is to prevent counterfeit securities; it is very wide in its language, and omits all words or questions of intent, and this case clearly falls within it. It was contended that the prisoner was interrupted before the offence was complete, but the statute applies to any stage of the process, even though the photographic copy be an undertaking of an evanescent form.(z)

Where prisoners are jointly indicted for feloniously using plates containing impressions of forged notes, the jury must select some one particular time after all the prisoners have become connected, and must be satisfied that at such time they were all either present together at one act of using, or assisted in such one act; and it is not sufficient to show that the parties were general dealers in forged notes, and that at different times they had singly used the plates, and were individually in posses sion of forged notes taken from them. The indictment charged Balls, Moses and Harris, in some of the counts, with engraving on a certain plate, in the Polish language, a certain note for the payment of money; in other counts with feloniously using the plates, on which the notes were engraved. At the close of the case for the prosecution, Littledale, J., required the counsel for the prosecution to elect, whether they would go on the counts for engraving, or the counts for using the plates, as they were quite distinct offences; and the counsel for the crown, admitting that there was no evidence of a joint engraving, relied on the counts for using the plates. It was then objected for the prisoners that there was not any evidence of a joint using of the plates. It was answered that there was evidence to go to the jury, as it was clear that Balls had the plate at one time and Moses at another, and that Harris was active in bringing the parties together, so that Flaum might have the impression. Any act traced to one was traced to all; and the question was, whether the notes were not struck off with the joint consent of all the parties. Littledale, J., in summing up, said, "In a case of felony, you can only go upon one act committed. There is very great difficulty in this case for you to know which act the prosecutor relies on, all these things being done at different times. The prosecutor does not fix on any particular day; if you find at any one time all three did concur in using the plates, then you may find them guilty. There are four different times at which notes were taken. As to what has been said about these parties being general dealers, it is not sufficient; they are not indicted, one for doing the act, and the others as accessories before the fact, but are all charged as *1007] *principal felons. There may be cases in which acts done at different times may be evidence of a joint using, as, for instance, if one were to find the plate, and one the paper, and one to do the work, I should say it was a joint using, but there is no evidence of that sort here. There is no evidence that by common concert these parties did such things. If one struck off the impressions, and the others wished him to do it, and shared in the profits, that would not make them principal felons. As this is an indictment against all three, you must be satisfied that they were all three present at one time, or assisting in some way at that time, either by watching at the door or something of that sort. Having the notes in pos session is not sufficient evidence of having used the plate; as in the case of forgery, uttering is not sufficient evidence of having forged. Balls, it seems, had the plate a year before, but that is no evidence under this indictment, as the using under it must be since August, 1835, as Harris and Moses do not come on the stage till that time. The only evidence against Harris is the negotiations he entered into with Saltzman and others respecting this note; there is no proof of his having the plate in his possession. Moses had it in his possession, and he is proved to have said before that he had the plate, and could print as many as he liked; this may be something like evidence of a using, on his part, of the plate. It does not seem to me that there is any evidence to prove a joint using at any one time, which, in my opinion, is necessary to prove this indictment; you may find two of them guilty, or one of them guilty, or all three of them guilty."(a)

(z) Reg. v. Rinaldi, L. & C. 330.

(a) Rex v. Harris, 7 C. & P. 416 (32 E. C. L. R.), cor. Littledale, J., and Gaselee, J. The facts proved on the trial are not stated in the report, and although there is a reference to Rex v. Balls, 7 C. & P. 426, for the principal facts of the case, the statement there does not

Upon an indictment against several for engraving plates, under the 1 Will. 4, c. 66, s. 19, the jury must have been satisfied that they jointly employed the engraver, but it was not necessary that they should all be present when the order was given; it was sufficient if one first communicated with the others, and all concurred in the employment of the engraver. Mazeau, Ramuz, and Rault were indicted for feloniously engraving and making upon two plates two parts of a promissory note for 25 rubles of Nicholas, Emperor of Russia, and it appeared that Ramuz and Mazeau had for some time been acquainted with an engraver, of the name of Salt, and that on the 9th of August, 1840, Mazeau went to Salt and showed him two Russian notes, and had some conversation with him about engraving some plates, and some days after Mazeau came again, accompanied by Ramuz, and both told Salt that he was to go on with the engraving, and both gave him some money, and they both came together to him frequently during the progress of the work. The evidence against Rault was, that when Salt took the print, Mazeau told him that the man they were executing the order for was present in their house *in the parlor; in consequence of this, Salt watched outside the door after [*1008 he left, and saw Rault come out of the house. Salt had also seen Rault several times during the progress of the engraving; he had seen him in conversation with Mazeau and Ramuz. Mrs. Salt, who knew the three prisoners, had seen two of them a great many times, but one not so often as the other two. She only saw the three prisoners together once, and that was on the day that they were taken into custody; they were standing talking together, close to Salt's window. On Rault's apprehension, some proofs from the plate and a Russian passport were found upon him. It was submitted for Rault, that there was not any act proved to have been done by him jointly with Mazeau and Ramuz, so as to make him guilty of the charge laid in the indictment; that there must be a joint employment of Salt by all the three prisoners; and that in order to make out such joint employment, it was necessary to show that all three were present at the time the order was given. Patteson, J.: "I quite agree that there must be a joint employment, and that all these three persons cannot be convicted on this indictment, unless the jury think that they jointly employed Mr. Salt. But I do not go along with the learned counsel, in saying that they must all three be present at the time when the order was given to Mr. Salt. (aa) I am of opinion that, if it be shown that two of them gave the order on behalf of themselves and another person, that other person being the other prisoner, he may be connected by some evidence with the employment. Whether there is such evidence in the case is a question for the jury; I cannot withdraw the case from their consideration." And in summing up, And in summing up, the very learned judge said, "You cannot find all guilty, unless you are of opinion that they jointly employed Salt to make the engraving. If you are satisfied that Rault first communicated with the other two, and then that they all concurred in employing Salt, the three prisoners may be found guilty; but you cannot find Rault guilty if you think he employed the other two to get the plate engraved by any person, and they afterwards, of their own accord, employed Salt. You may acquit all or any one of the prisoners, if you are satisfied that they did not employ Salt. It is clear, under the words of the Act of Parliament, and taking the evidence to be true, if Ramuz and Mazeau knew the nature of the instrument, that the case is brought home to them; and I am inclined to think, that if by Salt they engraved the plate, although they did not know the nature of the instrument, they are within the Act; but I am not confident of that, and shall ask you to say, whether you think they knew the nature of the instrument which they employed Salt to engrave. With respect to the guilt of Rault upon this indictment, the evidence is certainly not so cogent. He is not brought forward until a very late period, long after the order had been

up.

contain any of the most important facts alluded to by the learned judge in his summing For other points decided in other cases against the same prisoners, see Rex v. Warshaner, R. & M. C. C. R. 466, ante, p. 797; Rex v. Harris, ante, p. 799; Rex v. Balls, R. & M. C. C. R. 470, ante, p. 841. In a similar case now all the prisoners who had taken such a part as to make them accessories before the fact, might be convicted with the principal under the 24 & 25 Vict. c. 94, s. 1, ante, vol. 1, p. 67.

(aa) See Reg. v. Bull, 1 Cox C. C. 281, ante, vol. 1, p. 54.

given by the other two prisoners, when he is seen coming out of their house, and he is subsequently seen in their company. When he is apprehended, he gives his address in Portland-street, and at that address, in the room he occupied, the first proof of the plate is found, and other proofs are also found upon him. These circumstances, however, do not clearly lead to the inference that you must arrive at, *1009] before you can pronounce him guilty on this *indictment; for to make him answerable for the offence now charged, you must be satisfied that he was a party concerned in giving the order originally to Salt. For that purpose, it seems to me, the evidence is but slight; but should you think that he did originally instruct the other prisoners, and that by his authority they went and employed Salt, they may all be convicted. If you do not think that, Rault must be acquitted You will, therefore, say whether Ramuz and Mazeau knew what the contents of the plate were, and what the nature of the instrument was; and you will also say whether Rault was a party concerned in giving the original instructions to Salt.”(b)

*1010]

*CHAPTER THE FORTY-FIRST.

OF DEMANDING PROPERTY UPON FORGED INSTRUMENTS.

By the 24 & 25 Vict. c. 98, s. 38, "whosoever, with intent to defraud, shall demand, receive, or obtain, or cause or procure to be delivered or paid to any person, or endeavor to receive or obtain, or to cause or procure to be delivered or paid to any person, any chattel, money, security for money, or other property whatsoever, under, upon, or by virtue of any forged or altered instrument whatsoever, knowing the same to be forged or altered, or under, upon, or by virtue of any probate or letters of administration, knowing the will, testament, codicil, or testamentary writing on which such probate or letters of administration shall have been obtained to have been forged or altered, or knowing such probate or letters of administration to have been obtained by any false oath, affirmation, or affidavit, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years and not less than five(a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(b)

This clause is new, and is intended to embrace every case of demanding, &c., any property whatsoever upon forged instruments. It is intended to include bringing an action on any forged bill of exchange, note, or other security for money. The words "procure to be delivered or paid to any person," &c., were inserted in order to include cases where one person by means of a forged instrument causes money to be paid to another person, and to avoid the difficulty which had arisen in the cases as to obtaining money by false pretences.(c)

(b) Reg. v. Mazeau, 9 C. & P. 676 (38 E. C. L. R.). The jury found Mazeau and Ramuz guilty, and that they knew the nature of the instrument. With the greatest deference to the very learned judge, it is submitted that it deserved consideration, whether, supposing that Rault gave the order to Mazeau and Ramuz, and they in his absence gave it to Salt, who was an innocent agent, Rault was more than an accessory before the fact. If Rault had given the order to Ramuz and Mazeau, and they in his absence had themselves engraved the plate, it is conceived they would have been principals, and Rault an accessory before the fact; and it is submitted that this case is not varied by the act of an innocent agent, as that act is, according to all the authorities, just the same as if it was done by the party procuring it to be done. This question, however, is rendered immaterial by the 24 & 25 Vict. c. 94, s. 1, ante, vol. 1, p. 67.

(a) 27 & 28 Vict. c. 47.

This clause is framed in part from the 38 Geo. 3, c. 53, s. 2 (I.), which provided against demanding money on forged bank notes, and the 11 Geo. 4, c. 20, s. 85, which relates to obtaining money under forged wills, or probates fraudulently obtained. As to hard labor, &c., see ante, p. 849.

(c) See Rex v. Wavell, R. & M. C. C. 224; Reg. v. Garrett, 1 Dears. C. C. 232, ante. p.

*CHAPTER THE FORTY-SECOND.

OF FALSELY PERSONATING ANOTHER.

THE bare fact of personating another, for the purpose of fraud, is a cheat or misdemeanor at common law, and punishable as such. (a) cipal cases in which it has been considered as indictable have been conspiracy.

[*1011

no more than

And the prinlaid as cases of

In a case where the prisoner had been acquitted on an indictment preferred against him for forgery, upon its appearing that he had merely passed himself off for the person whose real signature appeared on the instrument, in concert with that person,(b) he was indicted again for the misdemeanor; but it is observed that this second indictment did not turn singly on the fact of such false personating for a fraudulent purpose, but was framed against him and his associates for the conspiracy as well as the cheat.(c) And where a woman, living in the service of her master, conspired with another man that he should personate her master, and in that character should solemnize a marriage with her, which was accordingly done, for the purpose of afterwards raising a specious title to the property of the master; the gist of the indictment was for the conspiracy, and the conviction proceeded upon that ground. (d) And in a case where a cheat was effected by one person pretending to be a merchant, and another pretending to be a broker, we have seen that judgment appeared ultimately to have been given for the crown, on the ground that it was a case of conspiracy.(e) A case however is reported, in which the indictment only charged that the defendant personated a clerk to a justice of the peace, with intent to extort money from several persons, for procuring their discharge from misdemeanors for which they stood committed; and the court refused to quash it upon motion, and put the defendant to demur to it.(f) But it is observed, that it might probably have occurred to the court that this was something more than a bare endeavor to commit a fraud by means of falsely personating another; that it was an attempt to pollute and render odious the public justice of the kingdom, by making it a handle and pretence for corrupt practices.(g) How far the refusal to quash the indictment upon motion can be considered as an authority is questionable; as we have seen that it was the practice of the court, as often declared, not to quash on motion indictments for offences founded in fraud *or oppression, though such indictments might appear not to be sustainable, but to leave the defendants to plead.(h)

[*1012 The offence of falsely personating another for purposes of fraud is so nearly allied to forgery, and so often blended with it, that these offences have been frequently included by the legislature in the same enactments, and made felonies alike subject to the same punishment. Many of the statutes, therefore, which relate to falsely personating, with a few cases determined upon their construction, have necessarily been introduced in the preceding chapters; as those concerning the personating the proprietors of public stocks, &c.,(i) and the personating of soldiers and seamen, and their widows, &c., in order to obtain wages, pensions, prize-money, &c.(j) But the general provision of the 2 Will. 4, c. 53, entitled "An Act for consolidating and amending the laws relating to the payment of army prize-money," may properly be introduced in this place.

That statute, by sec. 49, enacts, that "if any person shall knowingly and willingly personate or falsely assume the name or character, or procure any other person to personate or falsely assume the name or character of any officer, non-commissioned

(a) 2 East P. C. c. 20, s. 6, p. 1010. (c) 2 East P. C. c. 20, s. 6, p. 1010. indictmemt.

(b) Ante, p. 722.

The defendants were convicted upon this second

(d) Rex v. Robinson, 1 Leach 37; 2 East P. C. c. 20, s. 6, p. 1010.

(e) Reg. v. Mackarty, ante, p. 612.

(f) Dupee's case, 2 Sess. Cas. 11; 2 East P. C.

(g) 2 East P. C. c. 20, s. 6, p. 1011.

(i) Ante, p. 858, et seq.

c. 20, s. 6, p. 1010.

(h) Ante, p. 614, note (g).
(j) Ante, p. 913, et seq.