was not sufficient to justify the breaking open the doors of the house'.... (3) That this breaking of the door maketh them trespassers but can never be interpreted to make them guilty of felony; for their design [then] was not to commit felony....(4) If, after a door broken with intent to apprehend a person any of the company take away any of the goods from the house, this is felony in the person that did it, but in none of the rest; unless...any of the rest were assenting to the taking of the goods, and then it is felony in as many as consented. SECTION VIII. HOUSEBREAKING. [The cases given above under BURGLARY, Chaps. II., III., IV. (to explain what constitutes a sufficient Breaking, Entry, or Intent), are equally applicable to HOUSEBREAKING.] SECTION IX. FORGERY. CHAPTER I. THE INSTRUMENT. [It is a misdemeanor at common law to forge any kind of written document.] REGINA v. RILEY. CROWN CASE RESERVED. L.R. [1896], 1 Q.B. 309. Case reserved for the consideration of the Court by Kennedy, J. The prisoner was indicted under s. 38 of 24 and 25 Vict. c. 98, for that he "feloniously did cause and procure to be delivered and paid to one Henry Dorber certain money, to wit, the sum of nine pounds, the property and moneys of George Crompton and Samuel Radcliffe, under, 1 See Foster's Crown Law, 135, 320. 2 Hawkins P.C., chap. 14. upon, and by virtue of a certain forged instrument, to wit, a forged telegram, that is to say, a forged message and communication purporting to have been delivered at a certain post office, to wit, at Royal Exchange, Manchester, for transmission by telegraph, and to have been transmitted by telegraph to a certain other post office, to wit, the head post office at Manchester, with intent thereby then to defraud, he the said Henry Riley then well knowing the same forged instrument to be forged against the form, &c." It appeared that the prisoner was a clerk in the telegraph department of the head post office at Manchester. He had obtained from Dorber permission to make bets in his name with Messrs Crompton and Radcliffe, who were bookmakers, and with whom Dorber was in the habit of doing business. On June 27, 1895, the race known as the Newcastle Handicap was to be run at 2.45 p.m., and on that day the prisoner sent to Crompton and Radcliffe, in the name of Dorber, a telegram in these words "Three pounds, Lord of Dale." The telegram purported to have been handed in at the Royal Exchange office at Manchester at 2.40 p.m., and to have been received at the head office at 2.51 p.m., from which office it was transmitted to Crompton and Radcliffe. In reality the telegram was not handed in at the Royal Exchange office at all, but it was despatched by the prisoner from the head office after the news had arrived there that the race had been won by Lord of Dale. Messrs Crompton and Radcliffe, acting on their usual practice, and believing that the bet was offered before the race was run, accepted it at the current odds of 3 to 1 against Lord of Dale, and in the result credited Dorber with £9, which in due course would be received by the prisoner. No suggestion of fraud was made against Dorber. The prisoner pleaded guilty. The questions on which the opinion of the Court was asked by the learned Judge were (1). Whether the telegram was a forged instrument within the meaning of s. 38, and whether the prisoner could be convicted on the indictment.... HAWKINS, J....By the 24 and 25 Vict. c. 98, s. 38, "Whosoever with intent to defraud shall demand, receive, or obtain, or cause or procure to be delivered or paid to any person, or endeavour to receive or obtain, or to cause or procure to be delivered or paid to any person, any chattel, money, security for money, or other property whatsoever under, upon, or by virtue of any forged or altered instrument whatsoever, knowing the same to be forged or altered," shall be guilty of felony.... I proceed to discuss the question reserved for our consideration: whether the telegram described in the case constitutes a forged "instrument" in law; and whether it is such an instrument as is contemplated by s. 38. My answer to both these questions is in the affirmative. In 4 Blackstone's Commentaries, 247, forgery at common law is defined as "the fraudulent making or alteration of a writing to the prejudice of another man's right." I seek for no other definition for the purposes of the present discussion. That a postal telegram is a writing is to my mind clear. It originates in a written message addressed and signed by the sender, and delivered by him into the post office of despatch for the express purpose that it shall, in the very words in which it is penned, be transmitted by means of an electric wire to another post office, which I will call the arrival office, and that it shall there again on its arrival be committed to writing verbatim et literatim, and that such last-mentioned writing shall be handed to the person to whom it is addressed. The writing delivered in at the office of despatch is the authority of the postmaster to transmit the message, and of the postmaster at the arrival office to commit it to writing and to deliver it to the addressee as the sender's written message to him. This message sent out from the arrival office is, in ny opinion, as binding upon the sender as though he had written it with his own hand. If I am right in this, it follows that an offer by telegram accepted by telegram might well create a contract sufficient to satisfy the Statute of Frauds between the sender and the addressee, and a verbal offer accepted by telegram might create an ordinary contract. For this there is the authority of the Court of Common Pleas so long ago as 1870: see Godwin v. Francis'. Assuming the telegram to be such a writing as I have stated, a bare reading of the contents of it, coupled with the admission of its falsity and of the purpose for which it was made, are overwhelming to establish that it was fraudulently made to the prejudice of another man's right, and thus a forgery at common law. For this I need only cite the judgment of Blackburn, J., in Reg. v. Ritson: "When an instrument professes to be executed at a date different from that at which it really was executed, and the false date is material to the operation of the deed, if the false date is inserted knowingly and with a fraudulent intent, it is a forgery at common law." In this case, unless the telegram was dated and despatched before the race was run, it would have been inoperative. The time of 1 L. R. 5 C. P. 295. 2 L. R. 1 C. C. 200, at p. 204. despatch was therefore material: falsely to write the telegram so as to make it appear that it was sent in for despatch before the race was run, when it was not sent in till afterwards, was to make it appear on the face of it to be that which it was not. The more vexed questions, however, are whether the writing can be treated as an instrument, and, if so, whether it is such an instrument as is contemplated by the 38th section, the contention for the prisoner being that it cannot properly be treated as an instrument at all, and that, even if it can, that the 38th section has reference only to such forged legal or commercial instruments as are mentioned (and the forgery of which is made felony) in the earlier sections of the statute. After much consideration, I have formed an opinion adverse to the prisoner on both these points. Now, can this telegram properly be called an instrument? I am not aware of any authority for saying that in law the term "instrument" has ever been confined to any definite class of legal documents. In the absence of such authority, I cannot but think the term ought to be interpreted according to its generally understood and ordinary meaning. When applied to a writing, Dr Johnson defines it as "a writing a writing containing any contract or order." Webster's definition is "a writing expressive of some act, contract, process, or proceeding." These definitions cover an infinite variety of writings, whether penned for the purpose of creating binding obligations or as records of business or other transactions. Every one of the documents mentioned in the statute is unquestionably an instrument, and intended to be so treated. Throughout the statute it is evident the legislature attached no rigid definite meaning to the word, for it is used in a variety of senses, all falling within one or other of the definitions of Dr Johnson and Webster to which I have referred.... It will not, of course, be denied that there are very many instruments of an important character, commercial and otherwise, the forgery of which constitutes only offences at common law. I do not, for instance, find that the forgery of an ordinary written contract (not under seal or specially named in the statute) is a felony. So also a certificate of ordination, though the forgery of it is a mere common law offence, was nevertheless spoken of as an instrument by Blackburn, J., in Reg. v. Morton'.... In my view of the case, the telegram in question is an instrument of contract; it is the instrument which completed the wager offered by Crompton and Radcliffe to those who were able and disposed to accept 1 L. R. 2 C. C. 22. it (see Carlill v. Carbolic Smoke Ball Co., Limited', and the cases there cited), and thenceforth an obligation was imposed upon each party in honour to fulfil it according to the result of the race. I say in honour, because, though it was clearly not an illegal contract, it could not be enforced by any legal process. In virtue of it, and upon the assumption that the telegram was what it purported to be, Messrs Crompton and Radcliffe paid the £9. Assuming the document to be an "instrument," I come to the only remaining question, whether it is such within the meaning of s. 38 of the statute. Why should it not be so? It is contended that the section has reference only to such instruments as are mentioned in the earlier sections of the statute, and that s. 38 applies only to those forged instruments which are punishable as felonies. Such a construction is, I think, erroneous. There is no definition of the word "instrument" in the statute to fetter us in giving to it the ordinary and general interpretation. It was clearly the intention of the legislature by s. 38 to create a new offence. If it had been the intention of the legislature to limit the operation of the section to felonious forgeries, how easy it would have been to use appropriate language for that purpose. So far from doing this, the legislature, having used the term "instrument" in a variety of senses all falling within one or another of the definitions I have above referred to, proceeds, in s. 38, to use language which read in its ordinary sense comprises every description of written instrument.... WILLS, J....The essence of this section appears to be, that where property has been obtained not merely by false pretences, but by false pretences into which forgery or its equivalent enters, the offence shall be constituted a felony, and may involve much severer punishment than either the mere obtaining of money by false pretences or a mere forgery at common law. I cannot see anything in the nature of such a section which should make it necessary or desirable to restrict the application of the word "instrument" to writings of a formal character, and I think it is meant to include writings of every description if false and known to be false by the person who makes use of them for the purpose indicated....... No violence is done by this construction to the use of the word "instrument." In Coogan's Case Buller, J., defined forgery at common law as the "making of a false instrument with intent to deceive." Blackstone, J., defines forgery as the "fraudulent making or alteration of a writing to the prejudice of another man's right": 4 Comm. 247. 1 [1892] 2 Q. B. 484; [1893] 1 Q. B. 256. |