WRIGHT'S CASE.

(Lancaster Assizes, 1828. 1 Lew. 135.)

Prisoners were indicted for uttering a forged banker's check. It appeared that a person named Townsend was in the habit of signing blank checks and leaving them with his clerk when business. called him away from home. One of these checks fell into the hands of the prisoners, who filled up the blank with the words "one hundred pounds," and dated it.

Coltman, for the prisoner, objected that, the signature being genuine, it could not be said that the prisoner had uttered a forged instrument.

BAYLEY, J. By filling in the body, and dating it, he made it a perfect instrument, which it previously was not.1

COMMONWEALTH v. SANKEY.

(Supreme Court of Pennsylvania, 1853. 22 Pa. 390, 60 Am. Dec. 91.)

BLACK, C. J.2 The defendant wrote a note payable to himself, for $141, and got an illiterate man to sign it, by falsely and fraudulently pretending that it was for $11 only. On a special verdict finding these facts, the court gave judgment in favor of the accused.

The act was a forgery according to all the text-writers on criminal law, from Coke to Wharton. But their doctrine is not sustained by the ancient English cases, and is opposed by the modern ones. Only three American decisions were cited on the argument; and we take it for granted that there are no others on the point. Two of these, Putnam v. Sullivan, 4 Mass. 45, 3 Am. Dec. 206, Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441, are wholly with the defendant, and the other, State v. Shurtliff, 18 Me. 371, supports the argument of the commonwealth's counsel. The weight. of the judicial authorities is in favor of the opinion that this is no forgery. We think that the arguments drawn from principle, and the reason of the thing, preponderate on the same side. It must be admitted that, in morals, such an imposture as this stands no better than the making of a false paper. But even a knave must not be punished for one offense because he has been guilty of another. Forgery is the fraudulent making or altering of a writing to the prejudice of another's right. The defendant was guilty of the fraud, but not of the making. The paper was made by the other person himself, in prejudice of his own right. To complete the offense, according to the definition it requires a fraudulent intent and a mak

1 Part of the case, dealing with another question, is omitted.

2 The opinion only is printed.

ing both. The latter is innocent without the former, and the former, if carried into effect without the latter, is merely a cheat. If every trick, or false pretense, or fraudulent act by which a person is induced to put his name to a paper which he would not otherwise have signed, is to be called a forgery, where shall we stop, and what shall be the rule? Is it forgery to take a note for a debt known not to be due; or to procure a deed for valuable land by fraudulently representing to the ignorant owner that it is worthless; or to get a legacy inserted in a will by imposing on a weak man in his illness? All these would be frauds-frauds perpetrated for the purpose of getting papers signed-as much as that which was committed in this case. But no one thinks they are forgeries.

For these reasons, and the reasons given in the court below, which we fully adopt, the judgment is to be affirmed."

SECTION 3.-THE INTENT.

REX v. SHEPPARD.

(Court for Crown Cases Reserved, 1810. Russ. & R. 169.)

The prisoner was tried before Mr. Justice Heath, at the Old Bailey September Sessions, in the year 1809, on an indictment consisting of four counts.

The first count charged the prisoner with forging a receipt for £19. 16s. 6d., purporting to be signed by W. S. West, for certain stock therein mentioned, with intent to defraud the governors and company of the Bank of England. The second count was for uttering the same knowing it to be forged, with the like intent. The third and fourth counts varied from the first and second in charging the intent to have been to defraud Richard Mordey.

It appeared in evidence at the trial, that Richard Mordey gave £20 to his brother Thomas Mordey in the month of January, 1809, to buy stock in the 5 per cent. navy.

In February following Thomas Mordey gave the £20 to the prisoner for the purchase of the said stock, on the prisoner's delivering to him the receipt stated in the indictment.

The prisoner, being examined at the bank, confessed that the receipt was a forgery, that there was no such person as W. S. West, whose signature appeared subscribed to the receipt, and that he, be

2 Accord:

Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441 (1824); Reg. v. Chadwick, 2 Moo. & R. 545 (1844). Contra: State v. Shurtliff, 18 Me. 368 (1841).

ing pressed for money forged that name, but had no intention of defrauding Richard Mordey.

Richard Mordey and Thomas Mordey swore they believed that the prisoner had no such intent.

On examining the bank books, no transaction corresponding with this could be found.

The learned judge told the jury that the prisoner was entitled to an acquittal on the first and second counts, because the receipt in question could not operate in fraud of the governor and company of the bank.

That as to the third and fourth counts, although the Mordeys swore that they did not believe the forgery to have been committed with an intent to defraud Richard Mordey, yet as it was the necessary effect and consequence of the forgery, if the prisoner could not repay the money, it was sufficient evidence of the intent for them to convict the prisoner.

The jury acquitted the prisoner on the first and second counts, and found him guilty on the third and fourth counts; and the learned judge reserved this case for the opinion of the judges, to determine whether this direction to the jury was right and proper.

In Easter Term, 31st of May, 1810, all the judges were present, and they were all of opinion that the conviction was right; that the immediate effect of the act was the defrauding of Richard Mordey of his money.

REGINA v. HODGSON.

(Court for Crown Cases Reserved, 1856. 36 Eng. Law & Eq. 626.) The following case was reserved and stated for the consideration and decision of the Court of Criminal Appeal by Bramwell, B., at the Staffordshire Spring Assizes, 1856:

Henry Hodgson was indicted at common law for forging and uttering a diploma of the College of Surgeons. The indictment was in the common form.

The College of Surgeons has no power of conferring any degree or qualification, but before admitting persons to its membership, it examines them as to their surgical knowledge, and if satisfied therewith admits them, and issues a document, called a diploma, which states the membership. The prisoner had forged one of these diplomas. He procured one actually issued by the College of Surgeons, erased the name of the person mentioned in it, and substituted his own, changed the date, and made other alterations to make it appear to be a document issued by the college to him. He hung it up in his sitting room, and, on being asked by two other medical practitioners whether he was qualified, he said he was, and produced this document to prove his assertion.

When a candidate for an appointment as vaccinating officer, he stated he had his qualification, and would show it if the person inquiring (the clerk of the guardians, who were to appoint to the office) would go to his (the prisoner's) gig. He did not, however, then produce or show it.

The prisoner was found guilty, the facts to be taken to be that he forged the document in question, with the general intent to induce a belief that the document was genuine, and that he was a member of the College of Surgeons, and that he showed it to two persons, with the particular intent to induce such belief in those persons, but that he had no intent in forging, or in the uttering and publishing (assuming there was one), to commit any particular fraud or specific wrong to any individual.1

JERVIS, C. J. I am of opinion that this conviction is wrong. The recent statute for further improving the administration of criminal justice (St. 14 & 15 Vict. c. 100) alters and affects the forms. of pleadings only, and does not alter the character of the offense charged. The law as to that is the same as if the statute had not been passed. This is an indictment for forgery at common law. I will not stop to consider whether this is a document of a public nature or not, though I am disposed to think that it is not a public document; but, whether it is or not, in order to make out the offense there must have been, at the time of the instrument being forged, an intention to defraud some person. Here there was no such intent at that time, and there was no uttering at the time when it is said there was an intention to defraud.2

Conviction quashed.

1 Part of this case is omitted.

2 Wightman, J., and Bramwell, B., delivered concurring opinions, and Cresswell and Erle, JJ., concurred.

* Compare Reg. v. Toshack, 1 Den. C. C. 492 (1849).

CHAPTER XX.

LIBEL.

THE CASE DE LIBELLIS FAMOSIS.

(Star Chamber, 1605. 5 Rep. 125.)

In the case of L. P. in the Star Chamber this term against whom the Attorney General proceeded ore tenus on his own confession, for composing and publishing an infamous libel in verse, by which John, Archbishop of Canterbury (who was a prelate of singular piety, gravity and learning, now dead), by descriptions and circumlocutions, and not in express terms, and Richard, Bishop of Canterbury, who now is, were traduced and scandalized, in which these points were resolved.

1. Every libel (which is called famosus libellus, seu infamatoria scriptura) is made either against a private man, or against a magistrate or public person. If it be against a private man it deserves a severe punishment, for although the libel be made against one, yet it incites all those of the same family, kindred, or society to revenge, and so tends per consequens to quarrels and breaches of the peace, and may be the cause of shedding of blood, and of great inconvenience. If it be against a magistrate or other public person, it is a greater offense; for it concerns not only the breach of peace, but also the scandal of government.1

2. Although the private man or magistrate be dead at the time of the making of the libel, yet it is punishable; for in the one case it stirs up others of the same family, blood or society to revenge, and to break the peace, and in the other the libeler traduces and slanders the state and government, which dies not.

It it not material whether the libel be true, or whether, the party against whom it is made be of good or ill fame. Every infamous libel, aut est in scriptis, aut sine scriptis. A scandalous libel in scriptis is, when an epigram, rhime or other writing is composed or published to the scandal or contumely of another, by which his fame and dignity may be prejudiced. And such libel may be published: 1. Verbis aut cantilenis, as where it is maliciously repeat

1 Part of this case is omitted.

2 St. 6 & 7 Vict. c. 96, § 6, allows the truth of the alleged libel to be given in evidence as a complete defense, if it appear that the publication was made with proper motives and for justifiable ends. Similar statutes exist in our states. See Commonwealth v. Snelling, 15 Pick. (Mass.) 337 (1834); State v. White, 29 N. C. 180 (1847).