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must be laid to be either the dwelling house generally, or part of the dwelling house. (m) The situation of the house must be truly described: a variance would be fatal. If the situation be not expressly stated it will be taken to be at the place named by way of special venue. (n) An error in not stating the name of the owner, with certainty to a common intent, would be fatal. (o) If there be any doubt whether the house broken, &c. belongs to A., B. or C., counts alleging it to be the house of A., B. and C. respectively may and should be inserted. (p) Both breaking and entering must be stated to have been done in the night;(q) and the hour must be stated, (r) and if after midnight, it must still be laid as in the night of the preceding day; but neither the day nor the hour need be proved as laid.(s) The felonious intent, and the species of felony intended must be correctly stated and proved. (t) If it be doubted what specific felony was intended it may and should be laid differently in separate counts. (u) If an actual larceny be alleged and the theft be not proved to have been completed, the defendant must be acquitted. (v) Nor can a previous stealing in the same house be connected with a subsequent breaking, to support this charge.(w) But if a felony has been actually committed an averment of the intent to commit it will suffice.(x)

If the indictment be properly laid, the defendant may be convicted either of burglary, or of stealing in the dwelling house, or of a simple larceny only, according as the evidence may be sufficient to support the one or the other.(y) Upon an indictment against two, one may be found guilty of burglary and larceny and the other of larceny only. (z)

If the indictment contain a separate count for such offence and there be evidence to support it, the defendant may be convicted of breaking, entering, and stealing, in a building within the curtilage. (a)

3. FORGERY AND COUNTERFEITING.

Forgery, at common law, has been defined to be the fraudulent making or alteration of a writing, to the prejudice of another man's right;(b) or, as the false making or alteration of a written instrument with intent to deceive and defraud. (c) It is an offence punishable as a misdemeanor

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at common law. (d) In England a more severe punishment is inflicted on the offender, by a variety, or rather a multitude of statutes; by some of which the offence is made capital.

In this state forgery or counterfeiting of writings or of coin is divided into four degrees, and the punishment of each provided for; besides. which the revised statutes contain various provisions as to altering or counterfeiting certain inspection bills, receipts for duties, brands upon flour, salt, and oil barrels, &c. We shall first consider those kinds of forgery of writings, coin, &c. which are arranged in four classes by themselves, in the article of the revised statutes concerning forgery, after which various other species of forgery will be glanced at.

Forgery in the first degree is defined by the revised statutes to consist in forging, counterfeiting, or falsely altering; 1. Any will of real or personal property, or any deed or other instrument, being or purporting to be the act of another, by which any right or interest in real property shall be or purport to be transferred, conveyed, or in any way charged or affected; 2. Any certificate of acknowledgment or proof of any instrument which may be recorded, with intent to defraud; 3. Any certificate purporting to be issued by the state for the payment of money, or to acknowledge the receipt of property, or any certificate of any interest in a public stock created by any law of the state, or any other evidence of any liability of the state purporting to be issued by a public officer; or, 4. Any endorsement or other instrument purporting to transfer the right of any holder of such certificate; with intent to defraud the people of this state, or any public officer thereof, or any other person. (e)

Although the 22d section of the above mentioned statute does not, in terms, prohibit the forgery of mortgages, yet it has been held that they are embraced by it; and that in charging the forgery or felonious alteration of a mortgage, with the intent to defraud the mortgagor, it must be averred that there are in fact such lands as are described in the instrument, and that the mortgagor had an interest or right in them.(ƒ)

It has been decided that it is forgery to fabricate a will by counterfeiting the name of a pretended testator who is still living.(g) And signing a wrong christian name of the person whose will a false instrument purports to be, is a forgery. (h) But if it appear that the will purports to be a will of land, and is attested by two witnesses only, three being necessary to the validity of a will of real estate, it is not a forgery.(i)

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Forgery in the first degree is punishable by imprisonment in a state prison for not less than ten years.(k)

Forgery in the second degree is, 1. The forging or counterfeiting of the great or privy seal, or the seal of any public office authorized by law, or any court of record, or of any company incorporated by this state, or the impression of any such seal; 2. The altering, destroying, corrupting or falsifying any record of any will, conveyance, or other instrument, the record of which shall by law be evidence; or any record of any judgment in a court of record, or the enrolment of a decree in equity, or the return of any officer, court or tribunal, to any process of any court; 3. The falsely making, forging or altering any entry in any book of records, or any instrument purporting to be any record or return above specified; 4. Wilfully and falsely certifying by an officer authorized to take the proof or acknowledgment of any instrument that may be recorded, that the same has been acknowledged or proved; 5. Counterfeiting any gold or silver coins current by custom or usage within this state; 6. Making or engraving or causing to be made or engraved any plate in the form or similitude of any evidence of debt, &c. issued by any bank incorporated by any state of this or any other country, without the authority of such bank; 7. Having or keeping any such plate, or an impression from it, without the authority of such bank, with the intent of having any impression made and passed, sold or uttered, or of having the impression filled up to be passed, sold or uttered; 8. Making, or causing to be made, or having, any plate upon which are engraved any figures or words which may be used to falsely alter any evidence of debt issued by any such bank, with intent to use the same; 9. Selling, exchanging, delivering, offering, or receiving, for any consideration, any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, knowing the same to be forged or counterfeited, and with intent to have the same passed or uttered; 10. Having any forged, altered or counterfeit evidence of debt of any such bank or corporation as above specified, knowingly, with intent to utter or cause to be uttered the same as true or false, and to defraud or injure.(1)

With respect to the 5th subdivision of the above definition of forgery in the second degree, viz: counterfeiting any of the gold or silver coins current by custom or usage within this state, it is proper to remark in the first place, that the state and federal courts have concurrent jurisdiction of offences against the coin. (m) And in order to prove that the prisoner

(k) 2 R. S. 675, § 42.

(m) See 2 Wheel. Cr. C. 508. 1 Blackf. (1) 2 R. S. 671, §§ 24 to 28; 30, 32, 36. 198. 2 Bailey, 44.

was guilty of counterfeiting, it is not necessary to show that he was detected in the act; but presumptive evidence, as in other cases, will be sufficient, viz: that false coin was found in his possession, and that there were coining tools discovered in his house, &c. But the evidence must be such as to lead to a plain implication of guilt. (n) It must be proved both that the coin is counterfeit, and that it resembles or is apparently intended to resemble the legal coin. The fact that the coin counterfeited or resembled is such as is current by custom or usage within this state, may be proved by evidence of common usage or reputation. (6)

In proving the coin to be counterfeit two questions may arise; first, whether it is in such a state of completeness, as to be properly described as false and counterfeit coin; and secondly, whether it does resemble or is apparently intended to resemble the current coin. With regard to the first question, it is said there must be a substantial making or counterfeiting proved, that it will not be sufficient merely to show that steps have been taken towards a counterfeiting.(p) Though the coin be unskilfully executed, still the offence is complete, if such coin be so far finished, and in such a state, that it is calculated to deceive; and whether it is so or not, is a question of fact for the jury.(q)

The sixth, seventh and eighth branches of the above definition of the offence in the second degree, are explained by a subsequent section of the statute declaring that every plate specified in such previous section, shall be deemed to be in the form and similitude of the genuine instru ment imitated, when the engraving on such plate resembles and conforms to such parts of the genuine instrument as are engraved; or when such plate shall be partly finished, and the part so finished resembles and conforms to similar parts of the genuine instrument. (r) Of the eighth branch, the revisers remark, that the provision was intended to reach a case which not unfrequently occurs, that of having plates with figures or words to fill up the sums in a bill, after the original sums have been extracted.(s)

The ninth branch relates to the selling, exchanging, or offering, for any consideration, any forged or counterfeited notes, bills, &c., knowingly, with intention to have the same uttered or passed; or receiving them with such knowledge and intention, for any consideration. This provision is similar to the English statute 45 Geo. 3, ch. 8, 9, § 2, 6; under which it has been decided, that giving a forged note to another person,

(n) Roscoe's Cr. Ev. 296.
(0) Id. ib. 1 Hale, 213.
(p) Roscoe's Cr. Ev. 297.

(q) 6 Roger's Cr. Rec. 63.
(r) 2 R. S. 672, § 31.
(8) See Rev. Notes.

whether an accomplice or not, in order that he may pass it, is within the statute.(t) It is to be observed, however, that the English statute does not contain the words "for any consideration." These words in our statute seem to restrict its application to cases of purchase or exchange of forged or counterfeited notes, &c., and to prevent its provisions from extending to cases of mere gift.

The tenth and last branch of the definition of forgery in the second degree, refers to the having in one's possession any forged, altered, or counterfeit negotiable note, bill, draft, &c. of any corporation or company the forgery of which is before declared to be punishable; knowing the same to be forged, altered, or counterfeited, with intent to utter or cause the same to be uttered as true or false, with intention to injure or defraud. Upon this section the revisers remark that the laws in force previous to the revised statutes, against having in possession counterfeit bank notes, (which laws were substantially the same as the present section,) have been found most effectual in reaching the principals, who generally act by subordinate agents. In a case under the 6th section of the stat. 45, Geo. 3, ch. 89, (which section, as before remarked, is very much like the section of the revised statutes now under consideration, in which case the circumstances necessary to constitute "the having in possession" of forged notes came before the judges, they held that every uttering included having in possession and custody within the statute. And some of them thought that without actual possession, if the notes had been put in any place within the prisoner's control, and by his direction, the result would have been the same. (u) It has been decided in Connecticut, under their statute, which is also similar to ours, that the having in one's possession several forged bank notes of different banks, at one time, with intent to pass them, &c., constitutes but one offence. (v) Forgery in the second degree is punishable by imprisonment in a state prison for not less than five nor more than ten years.(w)

Forgery in the third degree is, 1. Counterfeiting the gold or silver coin of a foreign government or country, with intent to export it and defraud the foreign government or its subjects; 2. Falsely making, altering, forging or counterfeiting, with intent to injure or defraud: any instrument purporting to be any process, or any certificate, order, or allowance, of any competent court or officer; or to be any pleading or proceeding filed or entered in any court; or to be any license or authority

(t) Ry. & Moo. C. C. 166. See also 11 Mass. Rep. 136.

(u) Russ. & Ry. C. C. 110.

(v) 7 Conn. Rep. 414.

(w) 2 R. S. 675, § 42.

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