Where the prisoner presented a bill for payment, with a forged endorsement upon it, of a receipt by the payee, and on the person to whom it was presented objecting to a variance between the spelling of the payee's name in the bill and in the endorsement, altered the endorsement into a receipt by himself for the drawer, it was ruled that the presenting of the bill before the objection, was a sufficient uttering of the forged endorsement. (a) Where several persons are charged with an uttering, it must appear either that they were all present, or so near to the party actually uttering, as to be able to afford him aid and assistance.(b) Proof of the intent to defraud.] The proof of the fraudulent intent must tally with the averments in the indictment, otherwise the prisoner will be entitled to an acquittal. (c) The intent is mostly evidenced by the act itself, which from its nature leaves, in general, no room for doubt upon the point. The inference is frequently confirmed by the conduct and behavior of the guilty party, in the artifices and falsehoods which he employs for the purpose of effecting his object, or of avoiding detection. The subsequent uttering or publication of the forged instrument is admissible, and strong evidence to prove the original design of forging the instrument, and whether the making or uttering of a forged instrument be done with an intent to injure a particular person, as alleged, is matter of evidence for a jury.(d) As to the person intended to be defrauded.] It is sufficient in the indictment to aver a general intent to defraud a certain person. (e) In order to find the intent to defraud a particular person, it is not necessary that there should be evidence to show that the prisoner had that particular person in contemplation at the time of the forgery. It is sufficient if the forgery would have the effect of defrauding him; for the prisoner, in presumption of law, intends that which is the natural consequence of his acts. (f) So where the prosecutor swore that he did not believe the prisoner had forged the instrument with intent to defraud him, (as charged,) yet the prisoner being convicted, the court were of opinion the conviction were right; the immediate effect of the act being the defrauding of the prosecutor.(g) Where the intent is laid to be to defraud a corporation, it must be proved that it was to defraud them in their corporate capacity. If it is (a) Arscott's case, 6 Car. & P. 408. (b) Roscoe, 301. Russ. & Ry. C. C. 25, 113. 2 East's P. C. 974. (c) 2 East's P. C. 988. (d) Roscoe's Cr. Ev. 400. (f) Russ. & Ry. C. C. 291. stated as an intent to defraud them in their individual capacities, and it should appear in evidence that it was to defraud them in their corporate capacity, the variance would, as it seems, be fatal. (h) And this distinction between incorporated and unincorporated companies should be observed in drawing the indictment, viz: that in the case of a corporation the corporate property belongs to the whole corporation, as a body; but where the parties are not incorporated it is the property of the several individuals, and it must be so alleged. (i) On an indictment here against a person for having in his possession with intent to pass, forged bank notes purporting to have been issued by a banking corporation of another state, it is not necessary to show that there is in fact such a corporation in existence; at all events, proof of the most general character, of its existence, is sufficient.(k) Proof of the identity of the party whose name is forged.] It is essential to prove the falsity of the instrument, either by showing that the writing is not that of the person by whom it purports to have been made, or by showing that no such person exists. (1) Or where the instrument is in the name of the party himself, by showing that he put it off fraudulently, as being the act of another person. Where the name forged is that of an existing person, it is necessary to disprove the making of the instrument in question by him.(m) In Sponsonby's case,(n) in order to identify the person whose name was forged as the endorser of a bill, it was thought necessary to call the drawer, for the purpose of showing that the individual in question was the party really connected with the bill. The bill had been sent to Pearce, the payee and endorser, an intimate friend of Davis the drawer; but it never came to his hands, and it was proved to have been uttered by the prisoner, with the endorsement "William Pearce" upon it. Davis was not called, and the testimony of Pearce was rejected by the court; for although it might not be his hand-writing, yet it might be the handwriting of a William Pearce, or as he had not been proved to be the person intended as the payee of the bill, it might be the hand-writing of the William Pearce to whom the bill was made payable. The prisoner was accordingly acquitted. But where the prisoner represented that a note purporting to be signed by William Holland, was drawn by William Holland who kept the Bull's Head at T., it was held sufficient to call the W. H. of the Bull's Head to show that the note was not signed by him; (h) Roscoe's Cr. Ev. 401. (i) Ibid. 1 Leach, 366, 513. 2 East's P. C. 991. (k) 21 Wend. 309. (1) 2 Stark. Ev. 334, 2d ed. (m) Roscoe's Cr. Ev. 402. (n) 1 Leach, 332. 2 East's P. C. 996. although there was another person of the name of William Holland living at T.(o) The identity of the party whose name is forged may also be established by the admission of the prisoner himself. (p) Where it appears that there are persons in existence residing at the place which the forged instrument refers to, proof must be made that those persons are not in fact the real persons referred to, although in some respects they may be misdescribed. (q) Proof of the forged instrument.] The method of describing the forged instrument in the indictment has been already stated. It is unnecessary, therefore, to say more under this head than that the proof must corrcspond with such description. It may be proper to observe, however, that as a general rule, the forged instrument itself should be produced on the trial or examination, if possible, before parol evidence can be given of its contents. And this, upon the principle that the best evidence the nature of the case admits must be produced. (r) But where the instrument alleged to be forged, has been lost, destroyed, in the hands of the of fender, or secreted to protect him, the person whose name is charged to have been forged, and who had seen and copied the instrument, is a competent witness to prove it forged; and the production of the instrument itself will be dispensed with.(s) And the fact that the forged instrument was in the possession of the party at the time he uttered and published it, is prima facic evidence that it continues under his control at the time of the trial.(t) Proof of guilty knowledge.] Where the prisoner is charged with uttering or putting off a forged instrument, knowing it to be forged, evidence of that guilty knowledge must be given on the part of the prosecution; and for that purpose the uttering or having possession of similar forgeries will be admissible. (u) And for the same purpose, evidence that other notes of the same fabrication had been found on the files of the bank with the prisoner's name on the back of them, is admissible. (v) So evidence of a prisoner's false declarations relating to a forged bank note uttered by him ;(w) or of a prisoner's endeavors to engage a person to procure for him counterfeit money, of his declared intention to become acquainted with a counterfeiter, and to remove to a place near to his residence-is proper as going to show a guilty knowledge.(x) And on an indictment for counterfeiting money, possession of instruments for coining, is admissible.(y) But evidence of the previous uttering of counterfeit money, is subject to observation as to the weight of it, which will be more or less considerable, according to the number of the notes, the distance of time at which they had been put off, and the prisoner's situation in life, so as to make it more or less probable that so many notes could pass through his hands in the course of business.(z) But the notes must be produced, or proved to be destroyed, or in the prisoner's possession, and not produced, on notice. (a) If the passing of the other notes be at a remote period, it is not sufficient.(b) But proof of the scienter, (or guilty knowledge,) is not admissible before the principal charge is established.(c) Not only is evidence of the act of passing other forged notes admissible to prove the prisoner's guilty knowledge, but proof of his general demeanor on a former occasion, will be received for the same purpose. (d) Yet what was said at another time, by the prisoner, respecting other utterings, is inadmissible.(e) The possession also of other forged notes by the prisoner, is evidence of his guilty knowledge.(f) In order, however, to render such evidence admissible, it must be proved in the regular manner that the other notes were forged.(g) On indictments for uttering counterfeit coin, knowing it to be counterfeit, it is the practice, as in cases of forgery, to receive proof of more than one uttering committed by the party about the same time, though only one uttering be charged in the indictment. (h) Proof with regard to principals and accessaries.] Although in general it is necessary, in order to render a party guilty as principal in an offence that he should have been present at the commission of the complete act, yet it is otherwise in a forgery, where a person may incur the guilt of a principal by bearing a part only in the committing of the act, and in the (x) 5 Rand. Rep. 701. (y) 2 Const. Rep. 776. (z) Russ. & Ry. C. C. 132. 1 Bailey, 300. 2 Leigh, 745. (a) 1 Wheel. Cr. Cas. 415. 1 Roger's Cr. Rec. 46. (b) 3 Rogers' Cr. Rec. 148. (c) 6 Idem, 86, Jones' case. (e) Lewin's C. C. 105. (h) 1 Russ. on Cr. 85. 2 id. 697 Roscoe's Cr. Ev. 69. absence of the other parties, and without even a knowledge who they are.(i) But with regard to uttering forged instruments, it is necessary, in order to render a party guilty as principal, that he should have been present.(k) 4. FALSE PERSONATING ANOTHER, AND CHEATS. The offence of falsely personating another for the purpose of fraud is in its nature nearly allied to forgery, with which it is often accompanied, to give it efficacy. These offences have therefore been frequently included by the legislature in the same enactments, and made felonies alike subject to a capital punishment.(7) Falsely personating another is a misdemeanor at common law, and punishable as such. (m) In most cases of this kind, however, at common law, it is said that it is usual, where more than one are concerned in the offence, to proceed as for a conspiracy; and very few cases are to be found of prosecutions at common law for false personation. (n) Cheats, at common law, are defined to consist in the fraudulent obtaining the property of another by any deceitful and illegal practice or token (short of felony,) which affects or may affect the public.(0) At common law, cheats relate to some matter of a public concern, or in regard to private matters, such as are effected by conspiracy or false tokens, calculated in their nature to deceive the public in general; as selling by false weights and measures; selling cloth marked with a counterfeit measurer's seal; or other known general mark in the trade; playing with false dice; doing judicial acts in the name of others, &c. Private cheats are also, in some cases, punishable at common law; as the pretending to be, and obtaining credit as a merchant, by means of forged letters and commissions. But this is upon the ground that the public may be affected, or that the cheat is calculated to defraud numbers, and which ordinary care and caution cannot guard against. Where the fraud, at common law, is charg d to have been effected by means of a false token, the token must be such as indicates a general intent to defraud. A mere privy token, or counterfeit letters in other men's names, seem not to come within the meaning of the term false token, as used at common law. (p) From the preceding observations it will be seen that a great number (i) Russ. & Ry. 446. 1 Moody's C. C. 304, 307. (k) 2 East's P. C. 974. (m) Id. 1010. 2 Russ. 479. (0) 2 East's P. C. 818. 3 Chit. Cr. L. (1) 2 East's P. C. 1004. 2 Russ. on 994, note A. Cr. 480. (p) Davis' Just. 199. |