Of the Intent to Deceive and Defraud. The very act of the forgery itself will be sufficient to imply an intent to defraud; or, at all events, it will be sufficient if, from the circumstances of the case, the jury can fairly infer that it was the intention of the party to utter the forged instrument, for the necessary effect of the uttering, if successful, must be to defraud.1 The law presumes 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;2 and although the object was to defraud whoever might take the instrument, and the intention of defrauding the person in particular who would have to pay the instrument, if genuine, did not enter into the prisoner's contemplation.3 The statutory provision in respect to the intent to defraud, is as follows: "Whenever an intent to defraud is required to constitute forgery, it shall be sufficient if such intent appear to defraud the United States, any State, or territory, any body corporate, any county, city, town, or village, or any public officer in his official capacity, any copartnership, or any one of such partners, or any real person whatever." 114 The forgery consists in the endeavoring to give an appearance of truth to a mere deceit and falsity. Thus it is said by HAWKINS, that the notion of forgery does not seem so much to consist in the counterfeiting of a man's hand and seal, which may often be done innocently, but in the endeavoring to give an appearance of truth to a mere deceit and falsity; and either to impose that upon the world as the solemn act of another which he is no way privy to, or at least to make a man's own act appear to have been done at a time when it was not done, and by force of such a falsity to give it an operation which, in truth and justice, it ought not to have done.5 Knowingly uttering a forged bill to a person, meaning that he 12 Arch. Cr. Pr., 546. * Com. v. Stephenson, 11 Cush., 481. U. S. v. Shelmire; Rex v. Mazagora, Russ. & Ry. 291; 1 Baldw., 371. 2 R. S., 675, § 46. 1 Hawk. P. C., ch. 70, § 2. should believe it to be genuine, is sufficient, although the utterer intend to provide for the payment of the bill.1 In Reg. v. Beard, (8 C. & P., 143,) COLERIDGE, J., said: “As to the intent, I must tell you that every man is taken to intend the natural consequences of his own act. If I present to you a bill with the name of one of my friends upon it, knowing it to be forged, it would be idle to say that I had no intent to injure him." And in another case the court observed: "If a person knowingly pays a forgery away as a good bill it is a consequence, and almost a consequence of law, that he must intend to defraud the person to whom he pays the bill, and also the person whose name is used; as everything which is the natural consequence of the act must be taken to be the intention of the prisoner.' In another case, PARKE, B., in addressing the jury, said: "With respect to the intent to defraud, I have no doubt that you will take the law from me, which is this: that a person is guilty of forgery notwithstanding he may himself intend ultimately to take up the bill, and may suppose that the party whose name is forged will be no loser. If in the present case you are satisfied that the prisoner knew this acceptance to be forged, and uttered it as true, and believed that the bankers would advance money on it, which they would not otherwise do, that is ample evidence of an intent to defraud, and evidence upon which a jury ought to act. It appears that this bill has since been paid by the prisoner, but that will make no difference if the offence has been once completed at the time of the uttering.3 Upon an indictment for forgery and uttering an order for the payment of money, signed John Phillips, with intent to defraud F. Rufford and others, it appeared that the order was presented at Messrs. Rufford's bank, but they would not pay the amount, and no person named John Phillips kept cash with them, it was objected that there could be no intent to defraud Messrs. Rufford, as there was not the most remote chance of their paying the money; but it was held that the prisoner's going to Messrs. 1 Reg v. Hill, 2 Moo. C. C. R., 30; 8 C. & P., 274. Rufford's and presenting the paper for payment was quite sufficient evidence of an intent to defraud them.1 If a person gives his employer a forged receipt for money, with intent to make the employer believe that money already obtained has been applied in a certain way, he is guilty of uttering with intent to defraud his employer.2 The intention to defraud is necessary to the completion of the offence, though it seems that it is not necessary to show that the prosecutor was actually defrauded.3 And there need not be an intent to defraud any particular person, because a general intent to defraud is sufficient to constitute the crime; for if a person do an act the probable consequence of which is to defraud, it will in contemplation of law constitute a fraudulent intent.4 5 If a party either have authority to use the name of another or bona fide considers that he has such authority, it is not forgery to use such name. But nothing short of such belief, and a fair ground for that belief from the acts of the party whose name is used, is sufficient." And if from the dealings between the parties the prisoner had fair ground to believe that he had authority to use the name, it is not forgery. If one of three persons having authority jointly to draw out money from a bank, draw out the money by a check signed by himself and two strangers, who personate the two having authority, it is a forgery.8 The very essence of forgery is the 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." Rex v. Crowther, 5 C. & P., 316; Vide R. v. Houtson, 2 Car. & K., 777. Contra, R. v. Marcus, 2 Car. & K., 356, to the effect that where no fraud could have been effected, then no fraud could be intended. Rex v. Martin, R & M. C. C. R., 483; 7 C. & P., 549. * Com. v. Ladd, 15 Mass., 526; Penn v. Misnor, Add. Rep. 44; 1 Bay., 120; Thatch., Cr. Cas., 132, Grafton Bank v. Flanders, 4 N. H. Rep., 239; Van Horne v. State, 5 Ark. Rep., 349. * 2 Russ. on Cr., 362; Talloch v. Harris, 3 T. R., 176; Arnold v. Cost., 3 G. & J., 219; Bevington v. State, 2 Ohio R. (N. S.), 160. 7 Rex v. Forbes, 7 C. & P., 224. Reg. v. Beard, 8 C. & P., 143. Reg. v. Parish, 8 C. & P., 94. Dixon's Case, Lew., 178. * 2 Stra., 747; 2 Lord Raym., 1461; 3 Chit. Cr. L., 1039, a. The question as to the party's intent is for a jury, and the 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 upon him, and although the object was general, to defraud whoever might take the instru ment, 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.1 Of the Uttering. The word "uttering" would seem to be more accurately defined by the word "negotiating," which means, in its popular sense, an intercourse of business, trafficking 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 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. To utter and publish an instrument, is to declare or assert directly or indirectly, by words or actions, that it is good.3 Procuring a counterfeit bill to be passed by an ignorant boy 1 R. & Ry. C. C., 291. Peo. v. Rathbun, 21 Wend., 509. as a true one, was holden a sufficient passing, under the Massachusetts statute.1 It is not necessary, in order to constitute the offence of uttering, that the defendant should have the knowledge of the false making at the time of the forgery. So, depositing a forged bill of exchange with a banker as security, has been holden to be an uttering of it.3 Where a prisoner, charged with uttering a forged note to A B, knowing it to be forged, gave forged notes to a boy who was not aware of their being forgeries, and directed the boy to pay away the notes described in the indictment at A B's, for the purchase of goods, and the boy did so, and brought back the goods and the change to the prisoner, it was held an uttering by the prisoner to A B.4 So, also, it was held that the delivering of a box containing, among other things, forged stamps, to the party's own servant, that he might carry them to an inn, to be forwarded by a carrier to a customer in the country, is an uttering.5 It has been holden to be forgery to utter a note as the note of another, though made in the prisoner's own name. 6 It is said to be clearly settled, that in the case of a forgery committed in the name of a person really existing, it matters not whether the offender pass himself off upon the parties at the time for such person, and receive credit from them as such, the credit in such case not being given to the imposter personally, without any relation to another, but to that other person whom he represents himself to be." The instrument, must, in itself, be forged, for if a man merely pass for another, who is the maker or indorser of a true instrument, it is no forgery, though it may comprise the offence of false pretences. 8 XXIII. GAMBLERS. The statute making a common gambler guilty of felony is as follows: |