authorized by any statute; or 3. Any instrument purporting to be the act of another, by which any pecuniary demand or obligation shall be, or purport to be, created, increased, discharged, &c. or any rights or property may be, or purport to be, transferred, conveyed, discharged, diminished or affected, and for which a punishment is not before provided, by which false making, &c. any person may be affected, bound or in any way injured in his person or property; 4. Making a false entry, or falsely altering an entry, with intent to defraud, in any book of accounts kept in the office of the comptroller, or of the treasurer, or surveyor general of the state, or of any county treasurer, by which any demand, right or claim may be affected; or, 5. Making any false entry or alteration in any book of accounts kept by any monied corporation within the state, or kept by such corporation or its officers, and delivered, or intended to be delivered, to any one dealing with such corporation, and by which any pecuniary claim may be affected. (x) The statute to prevent forgery, which was in force previous to the adoption of the revised statutes, contained an enumeration of a great variety of instruments, as the subject of forgery. As the revisers remark, it gave rise to many questions and decisions upon cases falling within the spirit and meaning of the act, but not within its terms. The same practice of enumerating particular instruments has prevailed in England, where, from the fact that new statutes have been enacted from time to time to meet new cases as they arose, the number of statutes relating to forgery amounts to upwards of four hundred. In their note to the above sections, the revisers further remark, that in principle there can be no difference, in the injury to society, or to an individual, or in the degree of moral turpitude, between the forgery of one instrument or another, by which the property, rights, or interests of any one are affected. Their object, therefore, in introducing the sweeping and general provisions of the 33d section, was to avoid cavil, to reach every case of forgery that had ever been committed or that ever could be committed, and to afford a definite and distinct rule on the subject, which, though general, should have the same force in each particular case as a special statute. Under the third branch of the above definition of the crime in the third degree, it has been decided that where a party is charged with forging or counterfeiting a check on a bank, it is sufficient in the indictment to allege that he falsely made, forged, and counterfeited a certain check, with intention to defraud, &c. setting forth the check in hæc ver (x) 2 R. S. 672, §§ 29, 33, 34, 35. ba, with the name of the drawer as appearing upon it. And that it is not necessary to allege, in the words of the statute, that it was an instrument or writing, being, or purporting to be, the act of another, by which a pecuniary demand or obligation is created, &c.; or by which rights or property are, or purport to be, transferred, &c. or affected. Nor is it necessary to aver that by such forgery any person was affected, bound, or in any way injured in his person or property. (y) In such a case, it would be well, in point of form, to charge in the indictment that the accused forged a certain instrument in writing, purporting to be the act ot the party whose name is subscribed to it, by which a pecuniary demand is, or purports to be, created, and then to set forth the instrument in hæc verba.() And an indictment under the above section of the revised statutes is not vitiated by pursuing the forms under the old statute, in charging that the prisoner made, forged, and counterfeited, and caused or procured to be falsely made, &c., and willingly acted and assisted in the false making, &c. ; the latter charges being mere surplusage. (a) Forging lottery tickets, &c. comes within this 33d section of the statute.(b) The entries specified in the 35th section of the statute, (fifth branch of the above definition,) are not instruments of another, as they have no signatures; and these offences, therefore, rest upon the common law. The provisions of this section were introduced, as the revisers remark, as well to guard the public, as those institutions which are compelled to entrust so much to their subordinate officers. Forgery in the third degree is punishable by imprisonment in a state prison for a term not exceeding five years. (c) Forgery in the fourth degree is-1. Having in one's possession any forged or counterfeited instrument, the forgery of which is previously (i. e. in 2 R. S. 670, &c.) declared to be punishable, (except such as are enumerated in the 36th section;) or having any counterfeit of any gold or silver coin current in this state, knowing such instruments to be forged, counterfeited or falsely altered, or such coin to be counterfeited; with intention to injure or defraud, by uttering, or causing the same to be uttered, as true or false. (d) The uttering as true a forged or counterfeited instrument, or a counterfeit coin, the forgery or counterfeiting of which is previously made an offence, is punishable in the same manner as such forgery or counterfeiting is, unless, 2. The utterer received the forged (y) 12 Wend. 425. (z) Id. ib. (a) Id. ib. (b) 1 R. S. 671, § 53. (c) 2 id. 675, § 42. or counterfeited instrument or coin in good faith and for a valuable consideration, without circumstances to justify a suspicion of its being forged or counterfeited; and then it is forgery in the fourth degree.(e) The 37th section applies to the having in one's possession other forged instruments than bank notes. In relation to this, the revisers observe that it was at least a questionable offence previous to the revised statutes. And it was so liable to abuse, at common law that they thought proper to prescribe a definite punishment for it by placing it in the fourth grade of forgery. The "receiving" of such instruments was omitted because it is included in the expression" have in possession." On an indictment under the 38th section for having counterfeit coins in one's possession, the prosecutor must prove, 1. The possession of the false coin; 2. The knowledge that it was counterfeit ; and 3. The intent to utter or put off the same. They will be deemed to be in the prisoner's possession if he have them in his personal custody and possession, or knowingly have them in any dwelling house or other building, lodging, apartment, field or other place, open or enclosed, either for his own use or benefit or for that of another. (f) The guilty knowledge and the intent to utter can, in general, only be proved by circumstances; among the most cogent of which will be the fact that, upon other occasions the prisoner had uttered false coin.(g) In their note to the 39th and 40th sections of the statute, the revisers remark that the offence of passing counterfeit bills is perhaps the most frequent of any presented to our criminal courts. That it usually includes two very distinct classes of offenders; one, consisting of the actual bold forger or his associate; the other, consisting of the duped and ignorant citizen, who, although suspicious of a bill that he has received, yet gets rid of it, on the first opportunity. The latter, though highly criminal, is not of the same deep depravity of the former. This is proved by the reluctance of juries to convict in the latter case, and thus expose such persons to the very severe penalties of the law. The object of these sections, therefore, was to make a discrimination between the two classes of offenders and to provide a punishment for each proportioned to the actual guilt. Forgery in the fourth degree is punishable by imprisonment in a state prison for not more than two years, or by imprisonment in a county jail for not more than one year. (h) (e) 1 R. S. 674, §§ 39, 40. (f) Arch. Cr. Pl. 396. (g) Idem, Roscoe's Cr. Ev. 303. Making an instrument in one's own name, intended to create, increase, discharge, &c., any pecuniary obligation, right, or interest, or to transfer or affect any property, and uttering or passing it as the act of another person of the same name, with intent to injure or defraud, is the same offence as forging the name of a person of a different name.(¿) This is in accordance with the English decisions,(k) and with a decision of our own supreme court, previous to the revised statutes.(1) Forgery may also be committed by the total erasure or obliteration of any instrument or writing, with intent to defraud, by which any pecuniary obligation, or any right, interest, or claim to property shall be, or shall be intended to be, created, increased, discharged, diminished, or affected. And such erasure or obliteration is declared to be the same offence, as the false alteration of any part of such instrument or writing.(m) This section was introduced by the revisers as declaratory of a rule upon which some doubt previously existed, whether such an offence came within any statutory provisions. Chemistry has developed many agents by which writing may be extracted; and a forgery may often be committed by obliterating an account, endorsement, or other matter on the back of an instrument and relating to it, without impairing such instrument.(n) And where different parts of several genuine instruments shall be so placed or connected together as to produce one instrument, with intent to defraud, it is to be deemed forgery in the same manner and degree, as if the parts so put together were falsely made or forged. (0) This section was intended to reach the case of cutting off parts of genuine bills, and pasting them together, so as to make another of the same, or of a higher denomination. It is said that one bill can be made out of five. (p) This had been held not to be forgery within the statutes in force previous to the revision. (q) And every instrument partly written and partly printed, or wholly printed, with a written signature; and every signature of an individual, firm, or corporate body, or of any officer of such body, and every writing purporting to be such signature, is to be deemed a writing and written instrument, within the meaning of the statute.(r) (i) 2 R. S. 675, § 41. (k) 4 Term Rep. 28. 2 East's P. C. 855. 2 Leach's C. C. 775. Roscoe's Cr. Ev. 382. (1) 6 Cowen's Rep. 72. (m) 2. R. S. 675, § 43. (n) See Rev. Notes. 2 R. S. 675, § 45. Forgery may also be committed by falsely making, forging or counterfeiting any evidence of debt purporting to be issued by any corporation having authority for that purpose, and affixing a pretended signature of any person as an agent or officer of such corporation, though such person was not such officer, or was not in existence.(s) Having thus glanced, though in a brief and imperfect manner, at the four degrees of forgery according to the order of arrangement in the statute respecting forgery, we shall now proceed to consider the various other offences which are, in different parts of the revised statutes, declared to be forgeries. And although many of those offences are not of the degree of felony and therefore not punishable by imprisonment in a state prison, yet for the sake of convenience, and to avoid returning to the subject again, we shall notice them all here. Falsely altering or counterfeiting the inspection bill or receipt for duties of an inspector of salt, with intent to defraud the state; or falsely altering or counterfeiting his brand, or aiding in such crime, is felony, punishable by imprisonment in a state prison for not less than three nor more than six years. (t) Forging the name of a manufacturer, on any barrel or cask of salt, subjects the offender to a fine of $25 and damages to the party aggrieved. (u) Altering or counterfeiting brands on a flour barrel causes a forfeiture of $100 for every cask so branded :(v) branding casks of beef or pork without authority, is punishable by a fine of $15 per cask.(w) Counterfeiting the brand of an inspector of pot and pearl ashes is punishable by a fine of $500.(x) Counterfeiting the brand of an inspector of fish oil is punishable by a fine of $25. (y) Forging, altering, or counterfeiting any marks or numbers, or weigh-note of an inspector of tobacco is a misdemeanor.(z) Counterfeiting, or fraudulently altering or defacing the brands or other marks of any inspector is also punishable by fine not exceeding $2000 and imprisonment not exceeding three years. (a) Counterfeiting, or fraudulently altering or defacing the marks put by the owner on a hogshead, barrel or half-barrel of flour, meal, beef, pork, pot or pearl ashes, fish, fish oil, liver oil, or distilled spirits, is punishable by fine not exceeding $500 or imprisonment not exceeding one year. (b) Falsely making, altering, forging or counterfeiting any lottery ticket, or aiding therein, or selling, exchanging, offering or uttering the same with intent to defraud, knowingly, subjects the offender to imprisonment as (8) 2 R. S. 675, § 47. (x) Id. 549, § 78. |