it is intended to resemble as to be likely to deceive a common person." Stephen, Dig. Crim. Law, arts. 356.

§ 490. What Constitutes Uttering.-In People v. Caton, 25 Mich. 392, Judge Cooley says: "To constitute an uttering, it is not necessary that the forged instrument should have been actually received as genuine by the party upon whom the attempt to defraud is made. To utter a thing is to offer it, whether it be taken or not."

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. 439, 6 Park. Crim. Rep. 683.

The word "uttering" would seem to be more accurately defined by the word "negotiating," which means, in its popular sense, an intercourse of business, trafficing or treating, accordingly, not only a sale or paying away a counterfeit note or indorsement, but obtaining credit on it in any form, as by leaving it in pledge, or indeed, offering it in dealing, though it be refused, will amount to an uttering and publishing. The delivery of a counterfeit note to an innocent person for the purpose of having it passed away, is per se an uttering by the prisoner, although in another case, the uttering seems not considered complete till the innocent party has actually tendered the note in payment. This rule is based upon the doctrine that where an innocent person is employed for a criminal purpose, the employer must be answerable. Uttering implies two parties, a party acting, and a party acted upon. If, by the way of sale, there must be a vendee; if, by pledge, there must be a pledgee; if, by offer, there must be one present to hear the offer, and if, simply by declaring its goodness, there must be some one addressed as a reader or hearer. The crime of uttering and publishing, is therefore not complete until the paper is transferred, and comes to the hands or possession of some person other than the felon, his agent or servant. People v. Rathbun, 21 Wend. 509.

To utter and publish an instrument, is to declare or assert directly or indirectly, by words or actions, that it is good. 2 Archb. Crim. Pr. & Pl. 846, note.

The crime of forgery is one felony. That may be complete without any uttering and even without publication. 2 Russell, Crimes (Am. ed. 1836) 295, and cases cited. Uttering is another

and distinct felony. Even delivery to a guilty agent, for the purpose of uttering, thus absolutely and irrevocably parting with the paper, and though the agent complete the uttering, leaves the employer but an accessory. The principal crime is committed by the agent. Till he has performed his office there can be neither accessory nor principal. This alone shows that the disponee must be reached. The same thing, where the agent is innocent, makes the employer a principal. The distinction lies in the doctrine of principal and accessory, a doctrine peculiar to felonies; and the distinction cannot be maintained, if a mere delivery for the purpose of negotiation is in itself an uttering. People v. Rathbun, 21 Wend. 534.

§ 491. What Evidence is Pertinent.-The English authorities tenaciously maintain that any evidence is pertinent, which tends to show an unauthorized filling in of a blank check, draft, promissory note, or like instrument of a commercial character, as under their decisions, such an unauthorized filling in of the blank paper, amounts to forgery.

In Rex v. Hart, 7 Car. & P. 652, the prisoner was given an acceptance, blank as to amount, with authority to fill it in for £200. He filled it in for £500. This was held to be forgery, and upon the point being reserved the conviction was sustained by all the English judges. In Reg. v. Bateman, 1 Cox, C. C. 186, it was said that where a check is given with a certain limited authority, the agent is confined strictly within the limits of that authority, and that if he fills in the check with a different amount from that authorized, or if, after the authority is at an end, he fills it with any amount whatever, it is clearly forgery. The doctrine of Rex v. Hart, was followed in Reg. v. Wilson, 2 Car. & K. 527. There the prisoner was authorized to fill in the amount due on a bill for £150 and interest, then to get the check cashed and pay the bill. Instead of doing this, he filled in £250 and retained part of the proceeds, claiming that it was due him for salary. This was held to be forgery. Where the authority is general, a different rule prevails. Thus, in Reg. v. Richardson, 2 Fost. & F. 343, the clerk had authority to draw checks upon his employer's bank, not only to the order of the creditors of the firm, but to his own order, for such sums as he deemed necessary to pay the cash disbursements of the business. Upon one occasion he drew a check to his own order for £11, 10s, the proceeds of which he appropriated.

He was acquitted of forgery and put on trial for embezzlement, and the court held that the prisoner "could not be convicted of forgery, inasmuch as having a general authority to draw, he did not necessarily exceed his authority when he drew the check; and that the criminal act, if any, was the subsequent appropriation of it." In that case, however, the distinction is observed, in the statement of facts, that the clerk was not bound always to draw the checks in favor of a particular creditor, but had authority to draw generally and pay the creditor with cash.

The principle of the English cases seems to have been generally followed in this country. Whart. Am. Crim. L. (8th ed.) §§ 671, 672; People v. Graham, 6 Park. Crim. Rep. 135; Wilson v. South Park Comrs. 70 Ill. 46; State v. Maxwell, 47 Iowa, 454; Biles v. Com. 32 Pa. 529, 75 Am. Dec. 568; State v. Kroeger, 47 Mo. 552; State v. Flanders, 38 N. H. 324. The only cases where a doubt is expressed as to the rule are Putnam v. Sullivan, 4 Mass. 45, 3 Am. Dec. 206, and Van Duzer v. Howe, 21 N. Y. 531. These, however, were civil actions upon paper which were fraudulently used, or in which the blank amount was fraudulently increased beyond the sum authorized. They were properly decided upon the estoppel principle, and the doubts. which were expressed upon the point in question proceeded upon the mistaken idea that, if the paper was forged in the sense of the criminal law, it would be illogical, in a civil action, to hold the persons who signed it. But there is nothing incongruous between a definition of forgery, upon which the guilty agent may be punished criminally, and a civil rule that, notwithstanding the forgery, one who signed the paper in blank, intrusted it to such guilty agent and conferred upon the latter the power of defrauding the innocent, shall suffer rather than the victim. People v. Dickie, 62 Hun, 400.

§ 492. Declarations must be Considered in their Entirety. -If the prosecution lies on the confession alone, the prisoner is entitled to the full effect of that portion of the confession which goes in his favor; but if there is other evidence upon which the prosecution can with justice insist upon a conviction, the jury may, if they think proper, convict, notwithstanding the confession alone would be sufficient. In other words, if the prosecution uses the declaration of the prisoner, the whole of it must be taken together. One part cannot be selected, and the other left; and if there be no other evidence incompatible with it, the entire

declaration of the prisoner must be taken as true. But if, after the whole of the statement of the prisoner is in evidence, the prosecution is in a situation to contradict any part of it, it is at liberty to do so, and then the statement of the prisoner is in evidence, the prosecution is in a situation to contradict any part of it, it is at liberty to do so, and then the statement of the prisoner, and all the other evidence, must be left to the jury for their consideration, precisely as in any other case, when one part of the evidence is contradictory to another. Roscoe, Crim. Ev. 55.

§ 493. Burden of Proof is upon Prosecution.—In all criminal cases the burden is upon the prosecution to produce such evidence as will satisfy the jury that the charge against the accused is true,-such evidence that, when the jury has considered it, and all the rest of the evidence, there will remain no doubt (for which a sensible reason can be given) that the accused is guilty. After fairly considering the evidence, if there remains a reasonable doubt upon the evidence, or because of the want of evidence about the guilt of the accused, he is entitled to his acquittal. If, on the other hand, the evidence is of that character that a conscientious and sensible man may be satisfied that the prisoner is guilty, it is the duty of the jury to find him guilty. United States v. Long, 30 Fed. Rep. 678.

§ 494. Other Forgeries may be Shown.-For the purpose of showing the prisoner's guilty knowledge in such cases it has always been held competent to prove other forgeries. Mayer v. People, 80 N. Y. 364; People v. Shulman, 80 N. Y. 373, note. "Such proof is not received for the purpose of showing other crimes than that charged in the indictment, but for the purpose of showing the guilty knowledge and intent which are elements of the crime charged, and it can be considered by the jury only for that purpose. Although the evidence of Gaylord, corroborated as it was, as to the guilty knowledge of the defendant, was quite clear and convincing, yet the people are not bound to rest upon a prima facie case, but have the right to confirm that evidence by the proof as to the uttering of other forged checks." People v. Everhardt, 104 N. Y. 591.

It is quite obvious that a person may have in his possession one forged piece of paper without being neccessarily chargeable with information as to its character, but if possession of several other pieces of forged paper can be shown, the presumption of innocence diminishes. Hence other forgeries can be shown, as well as the

possession of other forged documents. Lindsey v. State, 38 Ohio St. 507; State v. McAllister, 94 Me. 139; Francis v. State, 7 Tex. App. 501; Smith v. State, 29 Fla. 408; Carver v. People, 39 Mich. 786; Com. v. Russell, 156 Mass. 196; State v. Fisher, 65 Mo. 437; People v. Farrell, 30 Cal. 316; Taylor, Ev. § 322.

Evidence may be given upon an indictment for passing counterfeit money to establish the passing of other bills of a similar character, for the purpose of showing the intent of the defendant in reference to the passing of the bill for which he is upon trial. So, also, where guilty knowledge is an ingredient of the offense, evidence may be given of the commission of other acts of a like character where they are necessarily connected with that which is the subject of the prosecution, either by some connection of time or place, or as furnishing a clue to the motive on the part of the accused, as in the case of receiving stolen goods, knowing them to be such. Coleman v. People, 58 N. Y. 555.

§ 495. What State must Show in Case of Bill, Note, Check, etc.-Where a bill, note, check, etc., is the subject of a forgery it must be shown by the prosecution that the instrument was not signed by the person by whom it purports to be signed or that such person did not exist at the time, or in other words is a fictitious person. And it further appears that the law will refuse to recognize a man's intentions as a crime, however corrupt and criminal those intentions may be. His intentions simply form the light by which we read and weigh his acts. People v. Elliott, 90 Cal. 586.

§ 496. Evidence of Handwriting.-Before a writing can be used as a standard of comparison of writing it must be proved that the specimen offered as a standard is the genuine handwriting of the party sought to be charged, and this question of its admissibility is to be determined by the judge presiding at the trial. So far as his decision is of a question of fact merely, it is final, if there is proper evidence to support it; and exceptions to its admission as a standard will not be sustained unless it clearly appears that there was some erroneous application of the principles of law to the facts of the case, or that the evidence was admitted without proper proof of the qualifications requisite for its competency. Com. v. Coe, 115 Mass. 481.

The same question has very recently been before the court in Vermont in the case of Rowell v. Fuller, 5 New Eng. Rep. 217, 59 Vt. 688, where the court, reviewing the decisions there, says