·

To this Cave answers, (3 Burn, 252, note a): “ But a close consideration of the statute appears to confirm it (the decision in Jarrald's Case): it may well be that in all the other cases except 'having implements of housebreaking' an intent must be clearly proved; for the 'being armed with a dangerous weapon' or 'having the face blacked' or being by night in a dwelling-house are clearly no offences unless done for a felonious purpose. And the very essence of the offence is such felonious purpose. But, with regard to 'having instruments of house-breaking,' the statute implies the intent from the nature of the instrument, and throws the proof of innocence upon the prisoner, The general intention of the statute is thus well carried out; for if a man be found by night anywhere with housebreaking implements, or such as the jury shall think he intended to use as such, he may be indicted for that offence. But if he has not any house-breaking implements, but is armed with a dangerous weapon' not usable for house-breaking, then the particular intent under s. 416 must be laid and proved as laid."

Indictment under s. 417 (a) for having in possession, by night, implements of house-breaking.—

at

on

about the hour of eleven in the night of the same day, was found, he the said (defendant) then and there, by night as aforesaid, unlawfully having in his possession, without lawful excuse, certain implements of house-breaking (to wit

).

An instrument capable of being used for lawful purposes is within the statute if the jury find that such instrument may also be used for the purposes of house-breaking, and that the prisoner intended to use it as an implement of house-breaking when found at night in possession of it: R. v. Oldham, 2 Den. 472.

Where an indictment for having in possession without lawful excuse certain implements of house-breaking by night the jury found the prisoners guilty of the possession without

lawful excuse, but that there was no evidence of an intent to commit a felony, and the indictment omitted the words "with intent to commit a felony," it was held that the omission did not render the indictment bad, and that it was not necessary to prove an intent to commit a felony: R. v. Bailey, Dears. 244.

that at

Indictment under s. 417 (d) for being found by day with a disguised face with intent to commit an indictable offence. on A. B. was found by day, then and there having his face blackened (masked, blackened or otherwise disguised). with intent then and there to kill and murder one C. D.

In R. v. Thompson, 11 Cox, 362, held, that where several persons are found out together by night for the common. purpose of house-breaking and one only is in possession of house-breaking implements all may be found guilty of the misdemeanour created by this section, for the possession of one is in such case the possession of all. See s. 3 for definition of "having in possession."

PUNISHMENT AFTER PREVIOUS CONVICTION.

418. Every one who, after a previous conviction for any indictable offence, is convicted of an indictable offence specified in this part for which the punishment on a first conviction is less than fourteen years' imprisonment is liable to fourteen years' imprisonment. R. S. C. c. 164, s. 44 (Amended). 24-25 V. c. 96, s. 59 (Imp.).

The imprisonment was for ten years under the repealed clause. As to trial of an offence after a previous conviction see post, ss. 628 and 676.

FORGERY.

GENERAL REMARKS.

"To forge is metaphorically taken from the smith who beateth upon his anvil, and forgeth what fashion and shape he will; the offence is called crimen falsi, and the offender falsarius, and the Latin word, to forge, is falsare or fabricare": Coke, 3 Inst. 169.

"Forgery is the fraudulent making or alteration of a writing, to the prejudice of another's right": 4 Blacks. 247. Forgery is the false making of an instrument with intent to prejudice any public or private right": 3rd Rep. Crim. Law Comm. 10th June, 1847, p. 34; ss. 421, 422, post.

'Forgery is the fraudulent making of a false writing which, if genuine, would be apparently of some legal efficacy": Bishop, 2 Cr. L. 523.

"The characteristic of the crime of forgery is the false making of some written or other instrument for the purpose of obtaining credit by deception. The relation this offence bears to the general system may be thus briefly established. In most affairs of importance the intentions, assurances, or directions of men are notified and authenticated by means of written instruments. Upon the authenticity of such instruments the security of many civil rights, especially the right of property, frequently depends; it is,' therefore, of the highest importance to society to exclude the numerous frauds and injuries which may obviously be perpetrated by procuring a false and counterfeited written instrument, to be taken and acted on as genuine. In reference to frauds of this description it is by no means essential that punishment should be confined to cases of actually accomplished fraud; the very act of falsely making and

constructing such an instrument with the intention to defraud is sufficient, according to the acknowledged principles of criminal jurisprudence, to constitute a crime,being in itself part of the endeavour to defraud, and the existence of the criminal intent is clearly manifested by an act done in furtherance and in part execution of that intention. The limits of the offence are immediately deducible from the general principle already adverted to. As regards the subject matter, the offence extends to every writing used for the purpose of authentication.

"The crime is not confined to the falsification of mere writings; it plainly extends to seals, stamps, and all other visible marks of distinction by which the truth of any fact is authenticated, or the quality or genuineness of any article is warranted, and, consequently, where a party may be deceived and defrauded, from having been by false signs induced to give credit where none was due. With respect to the false making of any such instrument the offence extends to every instance where the instrument is, under the circumstances, so constructed as to induce a party to give credit to it as genuine and authentic in a point where it is false and deceptive. And in this respect a forged instrument differs from one which is merely false and untrue in stating facts which are false. Where the instrument is forged, as where a certificate purporting to be signed by an authorized officer was not, in truth, signed by him, a party to whom it is shown is deceived in being induced to suppose that the fact certified is accredited by the officer whose certificate it purports to be, and he is deceived in that respect whether the fact certified be true or false. If, on the other hand, such a certificate be in truth signed by the officer whose name it bears, the instrument is not forged although the fact certified be falsely certified, for here the party receiving the certificate is deceived, not by being falsely induced to believe that the officer had accredited the instrument by his signature, but from the officer having

falsely certified the fact. The instrument may, therefore, be forged although the fact authenticated be true. The instrument may be genuine although the fact stated be false. Where money or other property is obtained by an instrument of the latter description, that is, where it is false merely as containing a false statement or representation, the offence belongs to the class of obtaining money or other property by false pretenses": 5th Rep. Crim. Law Comm. 22nd of April, 1840.

"

'Consistently with the principles which govern the offence of forgery an instrument may be falsely made although it be signed or executed by the party by whom it purports to be signed or executed. This happens where a party is fraudulently induced to execute a will, a material alteration having been made, without his knowledge, in the writing; for, in such a case, although the signature be genuine the instrument is false, because it does not truly indicate the testator's intentions, and it is the forgery of him who so fraudulently caused such will to be signed, for he made it to be the false instrument which it really is:" Cr. Law Comm. Rep. loc. cit.

This passage of the Criminal Law Commissioners seems to be based on a very old case, cited in Noy's Reports, 101, Combes's Case; but in a more recent case, R. v. Collins, 2 M. & Rob. 461, it was held that fraudulently to induce a person to execute an instrument, on a misrepresentation of its contents, is not a forgery; and, in a case of R. v. Chadwick, 2 M. & Rob. 545, that to procure the signature of a person to a document, the contents of which have been altered without his knowledge, is not a forgery: see Stephen's Cr. L. Art. 356, illustrations, 10, 11.

The report (loc. cit.) of the criminal law commissioners continues as follows: "Upon similar grounds, an offender may be guilty of a false making of an instrument although he sign or execute it in his own name, in case it be false in any material part, and calculated to induce another to give