of the manor of Dale appear to be a lease of the manor of Sale, by changing the letter D into an S ; or, by making a bond for five hundred pounds, expressed in figures, seem to have been made for five thousand, adding a new cypher. But in 3 Inst. 169, Lord Coke seems to think, that a deed, so altered, is more properly to be called a false than a forged deed; but, by Serjeant Hawkins, this is forgery; for 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 stranger's. But as the fraud and intention to deceive, by imposing Cun. Dict. Tit. Forg. upon the world that as the act of another, which he never 1 Hawk. P. C. 183. consented to, are the chief ingredients which constitute the offence; so it hath been held, that he who writes a deed in another's name, and seals it in his presence, and by his command, is not guilty of forgery; because the law looks upon this as the other's own sealing, as done by his approbation and command. Cun. Diet. Tit. Forg. cites Moor, 760. It seems, that by a bare non-feasance, a man cannot be said to be guilty of forgery; as if a man, in drawing a will omits a legacy which he is directed to insert; yet it Noy, 101. hath been holden, that if the omission of a bequest to one, cause a material alteration in the limitation of a bequest to another; as where the omission of a devise of an estate for life to one man, causeth a devise of the same lands to another, to pass a present estate, which otherwise would have passed a remainder only; he who makes such an omission is guilty of forgery. But it seems to be no way material, whether a forged instrument be made in such a manner, that if it were in truth such as it is counterfeited for, it would be of validity or not; and upon this ground it has been adjudged, that the forgery of a protection in the name of A. B. as being a member of parliament, who, in truth, at that time, was not a member, is as much a crime as if he were. Cun. Diet. Tit. Forg. cites 1 Hawk. P. C. 184. 1 Sid. 142. Commonw.v. Mycall, To render a man liable for forgery, the indictment must contain a technical description of forgery, other-2 Mass. Rep. 136. wise it will be substantially insufficient. Commonw. v. Stow. 1 Mass. Rep. 54. Commonw. v. Bailey, 1 Mass. Rep. 62. Commonw. v. Snell, 3 Mass. Rep. 82. Ibid. In an indictment for forgery, alleging an instrument to be "in the words and figures following," a strict recital is necessary. But the number of a bank bill, and the figures in its margin marking its amount, are not parts of the bill, and need not be set out in the indictment. In England, the party whose name is said to be forged, cannot be a witness; for he is considered as interested because, if the instrument is found by the verdict to be a forgery, it is impounded by the court, so that it cannot again be used as evidence in an action against him. But in this state, the law is, in this respect, different, and the party whose name is said to be forged may be a witness; for, although an instrument, found by verdict to be forged, is retained on the files of the court, yet any person interested may have a copy, by which to form his writ, and a duces tecum to the clerk to bring the original into court on the trial; and, therefore, the objection to such wit ness goes only to his credibility. So, on the trial of indictments for forging an instrument, or for knowingly passing it as genuine, no rule of law requires, as indispensable, the production to the jury of the forged instrument. The instrument alleged to be forged, must be so far described in the indictment, that it may appear that forging it is an offence; and this description, as well as the forgery, must be proved by the best evidence the nature of the case will admit. Reading the instrument is better proof of its contents than any parol evidence; and verbal testimony to the signature of a written instrument produced in court, will be more satisfactory than testimony to the signature of an instrument only referred to by the witness. The production, therefore, of the instrument in evidence must not be dispensed with, where it is practicable. But if the instrument cannot be produced, the prosecutor being in no fault, and more especially if it be secreted to protect the offender, the next best evidence will be admissible; and if it satisfy the jury of the defendant's guilt, it is a legal foundation for a verdict against him. But it may often happen, that when the instrument is not produced, there may be no other evidence, which will satisfactorily prove the description, or the forgery of it; in which case, the defendant must be acquitted. Having thus briefly noticed this offence, as it stands at common law, we now proceed to consider forgery, by statute, under the following heads. 1. Penalty for forging any paper, (other than a certificate of a public debt, or bank bills;) or for assisting therein; or for uttering or publishing the same, knowing it to be counterfeit. 2. Penalty for forging any certificate of a public debt, or bank bill; or assisting therein; or for possessing, at any one time, any number of the same, not less than ten, knowing them to be forged. 3. Penalty for uttering or publishing, as true, any forged certificate of a public debt, or bank bill; or for repeating such offence. 4. Penalty for bring into this state, or having in possession within this state, any forged bank bill, with intent to pass the same, and knowing the same to be forged. 5. Penalty for making or mending any tool, paper, &c. to be used in forging any bank bill, &c.; and for being possessed of the same with an illegal intent. 6. Penalty for counterfeiting any gold or silver coin, or for assisting therein; or for possessing, at any one time, any number of the same, not less than ten, knowing the same to be counterfeit, &c. 7. Penalty for bringing into this state any counterfeit coin, or for possessing the same; or for uttering or publishing the same; knowing the same to be counterfeit, &c. 8. Penalty for making or mending, or being possessed of any tool, &c. to be used in counterfeiting. 9. Of rewards to prosecutors of this offence. Stat. 1804, c. 120, s. 1. To assist. Scienter. Intent. Penalty. 1. Penalty for forging any paper, (other than a certificate of a public debt, or bank bills;) or for assisting therein; or for uttering or publishing the same, knowing it to be counterfeit. By statute it is enacted, that if any person shall falsely make, alter, forge or counterfeit, or shall procure to be falsely made, altered, forged or counterfeited, or shall willingly aid or assist in falsely making, altering, forging or counterfeiting any public record, any certificate or attestation of a justice of the peace, public register, notary public, clerk of any court, town clerk, or other public officer, in any matter wherein such their certificate or attestation is receivable and may be taken as a legal proof; any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance or bill of exchange; any promissory note, order, acquittance or discharge, for or upon the payment of money or delivery of goods; or any acceptance of a bill of exchange or any indorsement or assignment of a bill of exchange or promissory note, for the payment of money; any accountable receipt for money or goods; or for any note, bill or security for money or goods; or any lottery ticket in any lottery legally authorized and licensed within this commonwealth; or shall utter or publish as true, any such false, altered, forged or counterfeited record, certificate or attestation, charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of exchange, promissory note, acceptance, indorsement, assignment, order, acquittance, discharge, accountable receipt, or lottery ticket, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud any person, or any body politic or corporate; then every person so offending in either of the particulars aforesaid, who shall be thereof duly convicted in the supreme judicial court, shall be punished by solitary imprisonment, for a term not exceeding six months, and by confinement afterwards, to hard labour, for a term not less than two years, and not exceeding ten years. II. Penalty for forging any certificate of a public debt; or bank bill; or assisting therein; or for possessing, at any one time, any number of the same, not less than ten ; knowing them to be forged. Ibid. s. 2. By the same statute it is enacted, that if any person shall falsely make, alter, forge or counterfeit, or shall procure to be falsely made, altered, forged or counterfeited, or shall willingly aid or assist in falsely making, altering, forging or counterfeiting, any note, certificate, or other bill of credit, which hath been or may be issued by the treasurer or other commissioner or commisioners duly authorized, for any debt of this commonwealth; or any bank bill or promissory note payable to the bearer, signed in behalf of any company or corporation, by law licensed and authorized as a bank within this commonwealth, or payable and demandable therein, at the office of any banking company incorporated by any law of the United States; or if any person, having knowledge of such false making, altering, forging and counterfeiting, shall willingly aid or assist in altering or rendering current as true, any such false, altered, forged or counterfeit notes, certificates, bills of credit, bank bills, or notes, and for that purpose shall possess, at any one time, any number, not The possession of any less than ten, of such similar false, altered, forged or number not less than counterfeit notes, certificates, or bills of credit, bank bills or notes, knowing the same to be false, altered, forged or counterfeit, as aforefaid, with intent to utter or pass the same, and thereby to injure or defraud this commonwealth, any body politic or coporate, or any person or persons; then every person so offending in either of the particulars aforesaid, who shall be thereof duly convicted in the supreme judicial court, shall be punished by solitary imprisonment for a term not exceeding one Punishment. VOL. II. ten. Scienter. Intent. |