Craft v. State, 3 Kan. 450; Payne v. Com. 1 Met. (Ky.) 370; Com. v. Robinson, 146 Mass. 571; State v. George, 62 Iowa, 682; State v. Johnson, 37 Minn. 493; McKenna v. State, 61 Miss. 589; Swigar v. People, 109 Ill. 272; State v. Walker, 98 Mo. 93; State v. Anderson, 86 Mo. 309; Territory v. Clayton, 8 Mont. 1; Casey v. State, 20 Neb. 138; State v. McCluer, 5 Nev. 132; People v. Reich, 110 N. Y. 660; People v. Willson, 109 N. Y. 345; Stephens v. People, 4 Park. Crim. Rep. 396; State v. Brewer, 98 N. C. 607; State v. Harrison, 50 N. C. 115; State v. Anderson, 10 Or. 448; Tiffany v. Com. 121 Pa. 165; McLain v. Com. 99 Pa. 86; Henry v. State, 11 Humph. 224; Poe v. State, 10 Lea, 673; Alexander v. State, 25 Tex. App. 260; Heard v. State, 24 Tex. App. 103; Williams v. State, 15 Tex. App. 401; Kemp v. State, 11 Tex. App. 174; Russell v. Com. 78 Va. 400; Dean v. Com. 32 Gratt. 912; Timmerman v. Territory, 3 Wash. Terr. 445; Territory v. Manton, 8 Mont. 95; Gomez v. State, 15 Tex. App. 327; Scott v. State, 23 Tex. App. 452; Massengale v. State, 24 Tex. App. 181; Meyers v. Com. 83 Pa. 131; People v. Lyons, 110 N. Y. 618; Kendrick v. State, 55 Miss. 436; State v. Clouser, 69 Iowa, 313; Davis v. State, 74 Ga. 869; Overman v. State, 49 Ark. 364; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20; State v. Porter, 34 Iowa, 131; Ortwein v. Com. 76 Pa. 414, 18 Am. Rep. 420; Com. v. Drum, 58 Pa. 9; Warren v. Com. 37 Pa. 45; Kilpatrick v. Com. 31 Pa. 198; State v. Jones, 97 N. C. 469; People v. Cignarale, 110 N. Y. 23. § 486. Note on Expert Medical Evidence.-Apropos of this discussion I will refer to an article published in Vol. 6, p. 126, of the Columbia Law Times, the intent of which is to emphasize the uncertainty and distrust that so frequently attends the testimony of experts especially in capital cases. The article refers particularly to the comments of Lord Campbell in The Tracey Peerage, 10 Clark & F. 154, to the equally incisive criticisms of Justices Earl and Grey of the New York court of appeals in Ferguson v. Hubbell, 97 N. Y. 507, and People v. Kemler, 119 N. Y. 580, respectively, and in the concluding paragraphs quotes Dr. Wharton's familiar phillipic against the whole fraternity of Medical Experts. Whart. Crim. Ev. § 420. In many ways it will be found instructive as indicating the extreme caution that should accompany the consideration of such evidence. CHAPTER LV. FORGERY. § 487. Forgery Defined. 488. What Constitutes an Intent to Defraud. 489. What is Making a False Document. 490. What Constitutes Uttering. 491. What Evidence is Pertinent. 492. Declarations must be Considered in their Entirety. 494. Other Forgeries may be Shown. 495. What State must Show in Case of Bill, Note, Check, etc. 496. Evidence of Handwriting. 497. Direct Evidence Seldom Required. 498. New York Code Provisions. § 487. Forgery Defined.-Forgery is defined to be the signing by one without authority, and falsely, and with intent to defraud, the name of another to an instrument, which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. State v. Thompson, 19 Iowa, 299; Waterman v. State, 67 Ill. 91. In Com. v. Costello, 120 Mass. 367, where the defendant was charged with forging a bond to be used for the purpose of dissolving an attachment, the court held that an instrument falsely made with intent to defraud is a forgery, although if it had been genuine, other steps must have been taken before the instrument would have been perfected, and those steps were not taken. It was contended that the bond was worthless upon its face, as it was not approved, and until approved, could not serve to dissolve the attachment. The court said: "It is true that the false making of an instrument merely frivolous, or one which upon its face is clearly void, is not forgery, because from its character it could not have operated to defraud, or been intended for that purpose; but if the instrument is one made with intent to defraud although before it can have effect other steps must be taken, or other proceedings had upon the basis of it, then the false making is a forgery, notwithstanding such steps may never have been taken or proceedings had." In Ex parte Finley, 66 Cal. 264, the defendant was convicted of forging a decree of divorce, and it was held that the information was sufficient, without averring a marriage of the parties to the forged decree, as "on its face the writing shows that it may have been used to consummate a fraud.” An instrument in writing of which forgery can be predicated is one which, if genuine, would operate as the foundation of another person's liability (Com. v. Ray, 69 Mass. 446; 3 Greenl. Ev. § 103; Reg. v. Boult, 2 Car. & K. 604; Reed v. State, 28 Ind. 396; Garmire v. State, 2 West. Rep. 284, 104 Ind. 444; 2 Bishop, Crim. L. § 536; State v. Cook, 52 Ind. 574; Abbott v. State, 59 Ind. 70) though the contract need not be perfectly set out, but it must be in the instrument and arise from and be imported by the terms used. Garmire v. State, and Com. v. Ray, supra. The phrase "instrument in writing" or "instrument of writing," means a legal writing or written agreement embodying a promise, a contract, or obligation. 1 Bouvier, Law Dict. 728; 1 Rapalje & L. Law Dict. 666; Rex v. Moore, 2 Car. & P. 236; Smith v. Adkins, L. R. 14 Eq. 402; State v. Fenly, 18 Mo. 445. When a note or instrument is spoken of as "forged," it is understood to be a counterfeit one, and this understanding is in conformity with the definitions given to the two words by our best lexicographers. Webster's Dictionary, Worcester's Dictionary, Imperial Dictionary, etc. Whenever, therefore, the expression "forged note," or "counterfeit note," is used, we understand the speaker to refer to an instrument by which some one has undertaken to utter and pass, as the genuine and personal act of another, something which he has himself prepared in the similitude and likeness of the other's act, and by such similitude and likeness, which he has endeavored to impress upon the spurious instrument, to deceive and defraud. In other words, forgery is the attempted imitation of another's personal act, and by the means of such imitation to cheat and defraud; and not the doing of something in the name of another, which does not profess to be the other's personal act, but that of the doer thereof, who claims. and insists by and in the act itself, that he is authorized to obligate the individual, whom he is assuming to obligate precisely as he undertakes to do. 2 Russell, Crimes (9th Am. ed.), 946, 947; Reg. v. White, 1 Den. C. C. 208, 2 Cox, C. C. 210, 2 Car. & K. 404; Rex v. Story, Russ. & R. 81; Rex v. Arscott, 6 Car. & P. 408; 2 Bishop, Crim. L. (7th ed.) § 582; 2 Whart. Crim. L. (7th ed.) § 1432; 2 Archb. Crim. Pr. & Pl. (7th ed.) 819; 2 Archb. Crim. Pr. & Pl. (Pomeroy's ed.) 1584; Conner's Case, 3 City Hall Rec. 59; Re Heilbonn, 1 Park. Crim. Rep. 429; Com. v. Baldwin, 11 Gray, 197, 71 Am. Dec. 703; State v. Young, 46 N. H. 266, 88 Am. Dec. 212. § 488. What Constitutes an Intent to Defraud.-"An intent to defraud is presumed to exist if it appears that at the time when the false document was made there was in existence a specific person, ascertained or unascertained, capable of being defrauded thereby, and this presumption is not rebutted by proof that the offender took or intended to take measures to prevent such person from being defrauded in fact; nor by the fact that he had, or thought he had, a right to the thing to be obtained by the false document. "The presumption may be rebutted by proof that at the time when the false document was made there was no person who could be reasonably supposed by the offender to be capable of being defrauded thereby; but it is not necessarily rebutted by proof that there was no person who could in fact be defrauded thereby. "It is uncertain whether, in the absence of any evidence as to the existence of any person who can be defrauded by a false document, an intent to defraud will or will not be presumed from the mere making of the document. "An intent to deceive the public or particular persons, but not to commit a particular fraud or specific wrong upon any particular person, is not an intent to defraud, within the meaning of this article." Stephen, Dig. Crim. L. art. 355. Proof of participation in the forgery of a promissory note, and in the use of it as genuine, is of itself proof of the guilty intent. Proof of like acts is allowed in some cases to show a criminal intent in the case of an act which might be an innocent one; but evidence of participation in forging a note, and using it as genuine, is of itself proof of guilty intent. Hence the reason of the rule fails in that case. People v. White, 62 Hun, 114. § 489. What is Making a False Document.-"To make a false document is "(a) to make a document purporting to be what in fact it is not; "(b) to alter a document, without authority, in such a manner that if the alteration had been authorized it would have altered the effect of the document; "(c) to introduce into a document, without authority, whilst it is being drawn up, matter which, if it had been authorized, would have altered the effect of the document; "(d) to sign a document; "(1.) in the name of any person without his authority, whether such name is or is not the same as that of the person signing; "(II.) in the name of any fictitious person alleged to exist, whether the fictitious person is or is not alleged to be of the same name as the person signing; "(III.) in a name represented as being the name of a different person from that of the person signing it, and intended to be mistaken for the name of that person; "(Iv.) in a name of a person personated by the person signing the document, provided that the effect of the instrument depends upon the identity between the person signing the document and the person whom he professes to be. "But it is not making a false document. "(a) to procure the execution of a document by fraud; "(b) to omit from a document being drawn up matter which would have altered its effect if introduced, and which might have been introduced, unless the matter omitted qualifies the matter inserted; "(c) to sign a document in the name of a person personated by the person who signs it, provided that the effect of the instrument does not depend upon his identity with that person. "(d) It is not essential to the making of a false document that the false document should be so framed that, if genuine, it would have been valid or binding, provided that, in cases in which the forgery of any particular instrument is made a specific offense by any statute, the false document must, in order that the offense may be completed, fall within the description given in the Act. "(e) The fact that a document is made to resemble that which it purports to be, and is not, is evidence, for the consideration of the jury, of an intent to defraud, but is not essential to the making of a false document. "Provided that, in cases in which the forgery of any particular instrument is made a specific offense by any statute, the false document must have such a resemblance to the document which |