CHAPTER THE THIRTY-SECOND. Definition of the offence. A publication or uttering of the forged instrument is not necessary to complete OF FORGERY. FORGERY at common law has been defined as "the fraudulent making or alteration of a writing to the prejudice of another man's right;" (a) or, more recently, as "a false making, a making malo апіто, of any written instrument, for the purpose of fraud and deceit:" (b) the word "making" in this last definition being considered as including every alteration of, or addition to, a true instrument. (c) Besides the offence of forgery at common law, which is of the degree only of misdemeanor, there are a great many kinds of forgery, especially subjected to punishment by the enactments of a variety of statutes, which many years ago were spoken of as so multiplied as almost to have become general. (d) These statutes, which, for the most part, made the forgeries, to which they related, capital offences, were consolidated by the 1 Wm. 4, c. 66. At present it will be attempted briefly to review the doctrine of forgery at common law, together with such principles and decided points as (though some of them may have arisen in prosecutions upon particular statutes) appear to be of general application. And, pursuing the order of the definitions above given, we may consider, I. Of the making or alteration of a written instrument necessary to constitute forgery; II. Of the written instruments in respect of which forgery may be committed; and III. Of the fraud and deceit to the prejudice of another's right. We may then briefly treat, IV. Of principals and accessories; and V. Ŏf the indictment, trial, evidence, and punishment. In the first place, however, it should be observed that the offence of forgery may be complete, though there be no publication or uttering of the forged instrument. For the very making with a fraudulent intention, and without lawful authority, of any instrument which, at common law, or by statute, is the subject of forgery, is of the offence of itself a sufficient completion of the offence before publication; and though the publication of the instrument be the medium by which the intent is usually made manifest, yet it may be proved as plainly by other evidence. (e) Thus, in a case where the note, which the forgery. (a) 4 Black. Com. 247. (b) 2 East, P. C. c. 19, s. 1, p. 852. : beateth upon his anvil, and forgeth what fashion or shape he will the offence is called crimen falsi, and the offender falsarius; and the Latin word to forge is falsare, or fabricare." (d) 4 Black. Com. 248. (e) 2 East, P. C. c. 19, s. 4, p. 855. prisoner was charged with having forged, was never published, but was found in his possession at the time he was apprehended, no objection was taken to the conviction, on the ground of the note never having been published, there being in the case circumstances sufficient to warrant the jury in finding a fraudulent intention. (f) At the present time most of the statutes which relate to forgery make the publication of the forged instrument, with knowledge of the fact, a substantive offence. SECTION I. Of the Making or Alteration of a Written Instrument necessary to constitute Forgery. instrument Not only the fabrication and false making of the whole of a written of the making instrument, but a fraudulent insertion, alteration, or erasure, even of or alteration a letter, in any material part of a true instrument, whereby a new of a written operation is given to it, will amount to forgery; and this, although it mecessary to be afterwards executed by another person ignorant of the deceit. (g) constitute And the fraudulent application of a true signature to a false instru-forgery. ment, for which it was not intended, or vice versa, will also be forgery. (h) Thus it is forgery in a man who is ordered to draw a will for a sick person, to insert legacies in it of his own head. (i) So if a man insert in an indictment the names of those against whom, in truth, it was not found; (k) Or, if, finding another name at the bottom of a letter, at a considerable distance from the other writing, he caused the letter to be cut off, and a general release to be written above the name, and then take off the seal, and fix it under the release. (1) And in a late case it appears to have been considered that if a party make a copy of a receipt, add to such copy material words, not in the original, and then offer it in evidence on a suggestion of the original being lost, he may be prosecuted for forgery. (m) The fraudulent alteration of a material part of a deed is forgery; as the making a lease of the manor of Dale appear to be a lease of the manor of Sale, by changing the letter D. into an S.; or the making a bond for five hundred pounds, expressed in figures, seem to have been made for five thousand: (n) and though it seems to have been thought that a deed, so altered, is more properly to be called a false than a forged deed, not being forged in the name of another, nor his (ƒ) Elliott's case, 1777, 1 Leach, 175. 2 East, P. C. c. 19, s. 44, p. 951. 2 New R. 93, note (a). And see also Crocker's case, Russ. & Ry. 97. 2 Leach, 987, where it appears to have been holden by Le Blanc, J., that though the note there in question had been kept in the prisoner's possession, and never attempted to be uttered by him; yet it was a question for the jury under all the circumstances of the case, whether the note had been made innocently, or with an intent to defraud. (g) 2 East, P. C. c. 19, s, 4, p. 855. (h) Id. ibid. (i) Noy. 101. Moor, 759, 760. 3 Inst. 170. 1 Hawk. P. C. c. 70, s. 2. 66. (k) Rex v. Marsh and others, 3 Mod. (m) By Lord Ellenborough, C. J., in (n) Moor, 619. 1 Hawk. P. C. c. 70, s. 2. So in Elsworth's case, 2 East, P. C. c. 19, s. 58, p. 986, where a cypher being added after the figure 8, the bill, which was for 81., became a bill for 801. It is forgery for a person seal nor hand counterfeited; (o) yet, according to the better opinion, such an alteration amounts to forgery; on the ground that the fraud and villany are the same, as if there were an entire making of a new deed in another's name; and also that a man's hand and seal are falsely made use of to testify his assent to an instrument, which, after such an alteration, is no more his deed than a stanger's. (p) Altering the date of a bill of exchange after acceptance, and thereby accelerating the time of payment, would come within the same rule. (q) So altering a bill payable at three months, into a bill payable at twelve months is forgery. (r) And, upon the principle that the false making of any part of a genuine note, which may give it a greater currency, is forgery; it was holden, in a modern case, that where a note of country bankers was made payable at their house in the country, or at their banker's in London, and the London banker had failed, it was forgery to alter the name of such London banker to the name of another London banker, with whom the country bankers had made their notes payable subsequent to the failure. The Judges held that the act done by the prisoner was a false making, in a circumstance material to the value of the note, and its facility of transfer, by making it payable at a solvent instead of an insolvent house. (s) And upon the general principle that the alteration of a true instrument makes it, when altered, a forgery of the whole instrument, it was holden that where the indictment charged the prisoner with "making, forging, and counterfeiting" a bill of exchange, and with uttering it, knowing it to be forged; and the evidence was of an alteration of the bill of exchange from 10%. to 50%. in the part of it in which the sum is expressed in figures, and also in the part in which it is expressed in letters, the prisoner was properly convicted; though the statute, on which the indictment proceeded, 7 Geo. 2, c. 22, contained the word alter as well as the word forge; "if any person shall falsely make, alter, forge, or counterfeit, or utter, or publish, as true, any false, altered, forged, or counterfeited, &c. ;" from which it was contended that to alter a bill of exchange was made a distinct offence. (t) So altering a banker's one pound note by substituting the word ten for the word one, was held to be forgery. (u) And discharging one indorsement and inserting another, or making it thereby a general instead of a special indorsement, has been holden to be altering an indorsement. (v) So if a person gives another a blank acceptance, and at the time limits the amount either by writing upon it or otherwise, and if in (o) 3 Inst. 169. (p) 1 Hawk. P. C. c. 70, s. 2. Bac. Ab. Forgery (A), in the notes. (9) Master v. Miller, 4 T. R. 320. 2 East, P. C. c. 19. s. 4, p. 853. (r) Rex v. Atkinson, 7 C & P. 669, Park, J. A. J. (s) Rex v. Treble, 2 Taunt. 328, 2 Leach, 1040. Russ. & Ry. 164. The alteration was effected by pasting a slip of paper bearing the words Ramsbottom and Co., over the words Bloxam and Co., in the same manner as the prosecutors had themselves altered their re-issuable notes after the failure of their first London bankers, Bloxam and Co. (t) Teague's case, cor. Le Blanc, J., Hereford Sum. Ass. 1802, Mich. T. 1802. 2 East, P. C. c. 19, s. 55, p. 979. Russ. & Ry. 33. The judges held that the point was governed by Dawson's case, Mich. 3 Geo. 1. 1 Str. 19. 2 East, P. C. c. 19, s. 55, p. 978, where the prisoner having altered the figure of 2 in a bank note to 5 (220l. to 5201.) ten of the judges agreed that it was forging and counterfeiting a bank note; and that 3 Inst. 171, 172, was not law in this respect; for non assumpsit might be pleaded to such a note. (u) Rex v. Post, East. T. 1806, and Russ. & Ry. 101. (v) Rex v. Birkett and Brady, Russ. & Ry. 251. that is the filling up of the acceptance that amount be exceeded, with exchange. "£500. person, "London, August 20, 1836. Two months after date pay to my order the sum of five (v) hundred pounds value received. "To the Rev. C. H. Jenner, No. 1, Chesterfield-street, May Fair." "C. TAYLOR." It appeared that in consequence of an advertisement offering to lend money, Mr. Jenner wrote a letter, stating that he was anxious to borrow 500%, and afterwards saw the prisoner. Mr. Jenner told him he wanted money; the prisoner asked what sum; Mr. Jenner said 2001. for one twelvemonth, and some discussion arose as to Mr. Jenner's means of repaying it. The prisoner said he had the money, and appointed to meet Mr. Jenner the next day in London. Mr. Jenner on the next day saw the prisoner, who took from his pocket book a stamped piece of paper, and wrote something on the upper corner of it on the left hand, which Mr. Jenner could not then distinguish, and which he handed to Mr. Jenner, and requested him to write on it "accepted" and his name; which Mr. Jenner did, and also wrote on it "at the Bank of England," at the prisoner's desire. The prisoner said he should leave Mr. Jenner for some purpose; Mr. Jenner said "then of course you will leave the cheque with me." The prisoner said that was unnecessary, and said "to shew you there can be nothing wrong there are the figures denoting 2007. written in the corner." Mr. Jenner then looked at the corner and observed written in the corner 2007.; which figures Mr. Jenner stated must have been written before he wrote his acceptance. The prisoner then took the cheque away, and the parties were to meet at the bank coffee-house in half-an-hour. Mr. Jenner went there but the prisoner did not come. Mr. Jenner stated that he mentioned 5001. in the letter as a nominal sum, wishing to know what the expense of that might be, not having exactly made up his mind when he wrote what sum he wanted; but it did not appear that he gave that explanation to the prisoner. Mr. Jenner stated he never gave the prisoner any authority to fill up that paper for a greater sum than 200%., but it did not appear that he made any such distinct declaration to the prisoner. Early in August the prisoner told one Edwards he had an acceptance of Mr. Jenner's for 500l. which he wished him to buy, and at a subsequent time Edwards agreed to buy the bill for five shillings in the pound. He then saw it, and it was perfectly blank, with the exception of the acceptance: there was a stamp on it, and he noticed a stain in the left hand upper corner. The prisoner afterwards produced the blank acceptance with the name C. Taylor as drawer, and C. Taylor as indorser: nothing else was then written: Edwards then desired the prisoner to draw the body of the bill, which he did. Edwards made some observations on the bill being for 500l. The prisoner produced the letter from (v) It is "two," by mistake, in the report in R. & M. C. C. R. having authority to fill up a blank ac ceptance for one sum only, to fill up the bill for a larger sum. Filling up a blank cheque to which there is a signature, is forgery. A bill of exchange must be complete at the time an acceptance is written on it, or it is not Mr. Jenner in corroboration that the bill was for 500. It was proved that an acid had been used on that part of the paper where the stain was, and that an acid applied there would have the effect of discharging ink. The jury found the prisoner guilty and said that they were of opinion that the figures denoting 2001. were in the corner of the paper when it was taken away by the prisoner from Mr. Jenner, and also that the authority to fill up the bill was confined to 2007. Upon a case reserved it was contended that the facts amounted only to a fraud, and did not constitute the crime of forgery. The prisoner had authority to draw a bill, and a mere excess of authority was a fraud only, and not forgery. That the 2007. in the margin were no part of the bill, and did not limit the acceptance; but the Judges were unanimously of opinion that filling up the bill for 500l., the prisoner having no authority beyond 2001, was a false making of a bill for 500, and that the conviction was therefore right. (w) Filling in the body of a blank cheque to which a signature is attached, without any authority, is a forgery. The prisoners were indicted for uttering a forged cheque, and it appeared that one Townsend was in the habit of signing blank cheques, and leaving them with his clerk when business called him away from home; one of these cheques fell into the hands of the prisoners, who filled up the blank with the words "one hundred pounds," and dated it; it was objected that the signature being genuine, it could not be said that the prisoner had uttered a forged instrument; but Bayley, J., held that it was a forgery of the cheque. By filling in the body and dating it, it was made a perfect instrument, which it previously was not, and although it was not in point of fact made entirely by the prisoners, yet it had been held that the doing that which is necessary to make an imperfect instrument a perfect one is a forgery of the whole. (x) But where the instrument is imperfect as a bill, when the name of another is written upon it, it is not a forgery of_the_acceptance. Upon an indictment for forging and uttering a forged acceptance of a bill of exchange, an accomplice proved that the prisoner produced a blank stamp from his pocket, and wrote the names "Stiff a forgery of the and Sims " across it, and then gave it to the witness, who two days acceptance. after in the absence of the prisoner drew the bill for 1000%. on the stamp, Patteson, J., doubted whether the charge of forgery could be supported; because at the time when the names "Stiff and Sims" were written on the stamp by the prisoner, it was a blank paper. (y) And where the prisoner was indicted for forging an acceptance of a bill of exchange, and it appeared that at the time when the prisoner caused a lad to write the name of "John Chapman" across the bill, as the acceptor thereof, (which the lad innocently did,) a blank was left in the bill for the drawer's name; Parke, B., held that the indictment was not supported, as the instrument, to which the forged (w) Rex . Hart, R. & M. C. C. R. 486. S. C. 7 C. & P. 652. (r) Wright's case, 1 Lew. 135. The learned judge also was of opinion that if the bankers had paid the cheque, they might have recovered the amount from the prosecutor, as he was in the habit of leaving blank cheques out with his name written at the bottom. (y) Reg. v. Cooke 8 C. & P. 582 His lordship did not think the point material, because the prisoner had uttered the bill afterwards, and, as he wrote the names on it, he must have known the acceptance to be a forgery. |