testimony of officers, postmen, or by persons who have resided in the locality," that such person is not known to them. V. AS TO DEFENSES. 1. Intoxication as a Defense. The accused may show that he was incapable from intoxication of forming the intent necessary to constitute the crime.45 2. Intent to Repay. The accused cannot show that he expected to, or did, repay the party as a matter of defense.46 3. Ratification. An instrument forged is absolutely void, and a subsequent ratification of the instrument constitutes no bar to a prosecution for the act of forging.*7 show that they did not sign the check or authorize it to be signed. 43. State v. Hahn, 38 La. Ann. 169; People v. Sharp, 53 Mich. 523, 19 N. W. 168. 44. In Com. V. Meserve, 154 Mass. 64, 27 N. E. 997, the accused was indicted for endeavoring to obtain goods of another by means of a forged contract and by representing that he was a wealthy resident of Exeter and engaged in erecting large buildings where such material was required. C. Allen, J., in his opinion stated: "One principal element in the alleged conspiracy being that Kennedy should assume to be Geo. Brown, a man of wealth, residing in Exeter, and then or recently an owner of real estate there, it was competent to show by the witnesses that they knew of no such man. The witnesses testified to a general acquaintance with the inhabitants and owners of real estate in that town. It is not necessary that each witness should be able to state absolutely that he knew every resident." 45. People v. Blake, 65 Cal. 275, 4 Pac. 1; Williams v. State, 126 Ala. 50, 28 So. 632; People v. Ellenwood, 119 Cal. 166, 51 Pac. 553; State v. Hahn, 38 La. Ann. 169. 46. Reg. v. Beard, 8 Car. & P. (Eng.) 143; Reg. v. Hill, 8 Car. & P. (Eng.) 274; Reg. v. Grach, 9 Car. & P. (Eng.) 499; Green v. State, 36 Tex. Crim. 109, 35 S. W. 971. In Com. v. Henry, 118 Mass. 460, the defendant was indicted for forging a note. At the trial the defendant requested the judge to rule that if the jury were satisfied, upon the whole evidence, that the defendant did not intend to defraud anyone at the time when he made and uttered the note, but that he intended and had the means to pay said note when it became due, and would have done so but for the previous .settlement of the same, he could not be convicted upon either count. The judge declined to give the instructions and the defendant alleged exceptions. Held, "The subject to which the request of the defendant was apparently intended to call the attention of the presiding judge was the effect of his possession of the means and of his intention to take up the note when due, and in relation to this the statement of the law was correct. The intention of one who utters a forged note to take it up at maturity, and the possession of the means to do so, do not rebut the inference of intent to defraud, which is necessarily drawn from knowingly uttering it for value to one who believes it to be genuine, nor deprive the transaction of its criminal character." V. 47. Howell v. McCrie, 36 Kan. 636, 14 Pac. 257; Kelchner v. Morris, 75 Mo. App. 588; Workman Wright, 33 Ohio St. 405, 31 Am. Rep. 546; McHugh v. Schuylkill Co., 67 Pa. St. 391, 5 Am. Rep. 445; Countee v. State (Tex. Crim.), 33 S. W. 127. In Henry Christian Bldg. & Loan Ass'n v. Walton, 181 Pa. St. 201, 37 Atl. 261, Fell, J., citing various authorities, stated in his opinion as follows: "The distinction between the power to ratify acts void because of a fraud affecting individual in 4. Similarity of Name. The accused cannot excuse himself by showing that the name forged is identical with his own if the instrument was signed with intent to defraud.48 5. Lack of Vigilance by Party Defrauded. Showing that the party defrauded was not careful or vigilant, and that if he had been so the crime could not have been perpetrated, will not excuse the defendant.49 terests only and the power to ratify acts which involve a public wrong has been carefully defined and preserved in our decisions. Where the transaction is contrary to good faith, and the fraud affects individual interests only, ratifying is allowed; but where the fraud is of such a character as to involve a crime the adjustment of which is forbidden by public policy, the ratification of the act from which it springs is not permitted. Forgery does not admit of ratification. A forger does not act on behalf of, nor profess to represent, the person whose handwriting he counterfeits; and the subsequent adoption of the instrument cannot supply the authority which the forger did not profess to have." Effect of Condonation. - In State v. Tull, 119 Mo. 421, 24 S. W. 1010, a son was charged with forging his mother's name, and the court refused to allow evidence that the mother was willing to condone the offense and also to pay the obligation. Held, that "The condonation and willingness to pay the obligation did not render the act less a crime in the forger." 48. Mead v. Young, 4 T. R. 28; Barfield v. State, 29 Ga. 127, 74 Am. Dec. 49; Beattie v. Natl. Bank, 174 Ill. 571, 51 N. E. 602; People v. Peacock, 6 Cow. (N. Y.) 72. In People v. Rushing, 130 Cal. 449, 62 Pac. 742, Cooper, C., said: 66 Because the initial of Elmer Geddes' name is "E." he will not be allowed to forge the name of every other Geddes in the state whose initial might be "E." and in defense claim that he was only signing his own name. If the power of attorney was made and signed by Elmer Geddes for the fraudulent purpose of getting the money of Edwin Geddes, which was on deposit in the bank, and if defendant knew all these facts, and uttered the power of attorney for the purpose of making the sale to Levy, knowing that Levy believed it to be the power of attorney of Edwin Geddes, he committed the crime of forgery." Procuring Signature of Name Similar. In Com. v. Foster, 114 Mass. 311, 19 Am. Rep. 353, Wells, J., stated in his opinion that "When that intent exists, and the instrument is the fruit of it, the author of the fraud cannot escape the charge of forgery by procuring one who happens to bear a name that suits his purpose to supply him with a pretended genuine signature. There is double falsity in such a mock performance." 49. United States v. Turner, 7 Pet. (U. S.) 132; Garmire v. State, 104 Ind. 444, 4 N. E. 54; Cochran v. Atchison, 27 Kan. 728; Com. v. Stephenson, II Cush. (Mass.) 481; Com. v. Foster, 114 Mass. 311, 19 Am. Rep. 353. In Lawless v. State, 114 Wis. 189, 89 N. W. 891, Barden, J., said: The change made in the check gave it the capacity to mislead and deceive the unwary. Its vicious capacity to defraud was certainly known to the accused. He represented that it called for a much larger sum than he knew he was entitled to. It comes with very poor grace from him now to say that the person who cashed the check for him ought not to have been deceived. The fact remains that he was deceived, and the accused profited by such deception. We think the alteration was material, and of such a character as was calculated to deceive non-experts." In Rohr v. State, 60 N. J. L. 576, 38 Atl. 673, Hendrickson, J., said: "The suggestion that there was no attempt to conceal the erasure - that VI. JURISDICTION. 1. Caption. The instrument must be shown to have been forged within the jurisdiction of the court,50 but if it is shown. that it bears date at a certain place within the jurisdiction and it is proved that the accused was at the place at the time, this is sufficient evidence that it was forged at that place.51 2. Inference Raised by Uttering. Uttering the false instrument in the county where the indictment is found is cogent evidence that the forgery was committed by the defendant in the same county.52 VII. WITNESSES. 1. Interested Witnesses. The testimony of the parties whose names are signed to the instrument is competent evidence in establishing the fact of forgery,53 but such evidence is not indispensable.54 it was plain to any one-is no defense in this case. The alteration was, at least, successful in its object; and the rule of law in that particular is that it is sufficient to constitute the crime if a signed writing which is forged be intended to be taken as true and might be so taken by ordinary persons." Citing Justice Ford in State v. Robinson, 16 N. J. L. 507, which states: "Nice observers might detect the falsification by holding it to the light, but that does not justify the forgery. The law is to protect the mass of society, and it matters not if a few knowing men are safe." 50. State v. Thompson, 19 Iowa 299. 51. State v. Thompson, 19 Iowa 299; State v. Duffield, 49 W. Va. 274, 38 S. E. 577. 52. Illinois. - Bland V. People, 4 Ill. 364. Iowa. State V. Blanchard, 74 Iowa 628, 38 N. W. 519. Kansas. — In re Carr, 28 Kan. I. Missouri. State Yerger, 86 Mo. 33; State v. Burd, 115 Mo. 405, 22 S. W. 377; State v. Haws, 98 Mo. 188, 11 S. W. 574. ข. North Carolina. - State v. Morgan, 19 N. C. 348. Tennessee. Toute v. State, Lea 712. 15 Texas. - Ex parte Rogers, ΙΟ Tex. App. 655; Henderson v. State, 14 Tex. App. 503; Hocker v. State, 34 Tex. App. 359, 30 S. W. 783, 53 Am. St. Rep. 716. In United States v. Britton, 2 Mason 464, 24 Fed. Cas. No. 14,650, Story, J., stated in his opinion that "It is rare that the government can offer any evidence of the place of the forgery, except that which arises from the fact of the utterance of the forged instrument. And I take the rule to be that the place where the instrument is found or offered in a forged state affords prima facie evidence, or a presumption, that the instrument was forged there, unless that presumption be repelled by some other fact in the case." In Johnson v. State, 35 Ala. 370, it was held: 'The place of the forging is peculiarly, and in most cases exclusively, within the defendant's knowledge; and it is in his power to shield himself from a conviction in a wrong place by proof of the true venue. It is, therefore, a matter of manifest justice and propriety to infer the forgery to have been committed at the place where the paper appears to have been first in the defendant's possession. The inference is by no means conclusive, and will give way to sufficient countervailing evidence." 53. State v. Morgan, 25 La. Ann. 293; People v. Swetland, 77 Mich. 53, 43 N. W. 779. 54. Anson v. People, 148 Ill. 494, 2. Subscribing Witnesses. The rule of evidence that the subscribing witnesses must be first called or their absence accounted for, to prove the authenticity of the instrument has no application in the prosecution for forgery.55 Their testimony is competent, however, and may show that the signatures upon the instrument were not in fact made by them.56 VIII. UTTERING FORGED INSTRUMENT. 1. The Act of Uttering. The forgery of the instrument uttered constitutes no part of the proof necessary for conviction for uttering, other than the fact that it is a forged instrument,57 and the act of uttering may be shown by evidence that the accused exhibited it in any manner which would induce another to credit it.58 Evidence of declarations either by words or acts which show an attempt to utter the alleged false writing as true is admissible to show the guilt of accused.59 Attempts to pass the same instrument upon others are admissible to identify the accused with the forged instrument.60 It is not necessary to prove that the party 35 N. E. 145; Hess v. State, 5 Ohio 7; Foulkes v. Com., 2 Rob. (Va.) 836. 55. Garrett v. Hanshue, 53 Ohio 482, 42 N. E. 256. the In Simmons v. State, 7 Ohio 116, the reasons were discussed as to the rule requiring the subscribing witness to testify, and it was there held that subscribing witnesses to deeds and like instruments "are presumed to be better acquainted with circumstances that transpired at the time, and not only so, but by so selecting the parties mutually agreed to resort to them for the proof. The person whose name is forged cannot be supposed to have selected a subscribing witness to prove that he executed an instrument, and the circumstances attending the execution; because the very fact of forgery proves that he had no knowledge of the making of it. When the obligor is competent he must be the best witness of which the case will admit; and the subscribing witness need not, in such case, be called for ratione cessante, cessat ipsa lex." 56. People v. Sharp, 53 Mich. 523, 19 N. W. 168. 57. State v. Bigelow, 101 Iowa 430, 70 N. W. 600; State v. Hahn, 38 La. Ann. 169. 55 58. Rex v. Arscott, 6 Car. & P. (Eng.) 408; Stockslager v. United States, 116 Fed. 590; Anderson v. State, 65 Ala. 553; Com. v. Baldwin, II Gray (Mass.) 197; People v. Brigham, 2 Mich. 550; People v. Caton, 25 Mich. 388; Folden v. State, 13 Neb. 328, 14 N. W. 412; Harris v. People, 9 Barb. (N. Y.) 664. In Chahoon v. State, 20 Gratt (Va.) 733, the evidence showed an attempt as counsel, by action at law and suit in equity, to enforce payment of the money mentioned in the writing, and to employ said instrument as true, which, if done with knowledge that the writing was a forgery, constitutes guilt within the meaning of the law. In Espalla v. State, 108 Ala. 38, 19 So. 82, the court instructed the jury: The court will charge you that as a matter of law the presenting of a deed at the probate court for record is an uttering and publishing. And if you believe from the evidence beyond a reasonable doubt that the defendant presented the deed with intent to defraud, this would be sufficient proof of uttering." 59. Gardner v. State, 96 Ala. 12, II So. 402; Chahoon v. State, 20 Gratt. (Va.) 733. 60. Leslie v. State (Tex. Crim.), 47 S. W. 367; Wolf v. State (Tex. Crim.), 53 S. W. 108. upon whom the attempt to defraud is made should receive the writing as genuine, or in fact ever receive it into his actual possession. Proof of offer is sufficient though refused.62 61 2. Damage. No actual damage is necessary to be shown; it is enough that the accused designed and intended that the instrument was to be used as genuine,63 and there existed a possibility In Preston v. State, 40 Tex. Crim. 72, 48 S. W. 581, the accused was indicted for uttering certain forged deeds. Evidence was admitted as to the manner in which the accused had employed the deeds in a civil suit. Henderson, J., held: "We believe, on objection, the court should have required a certified copy of so much of the proceedings in the district court of Atascosa county as the state desired to use. With said certified copy of the records before the court, we believe it would have been entirely competent for the witnesses to state that said deeds were used in said suit by appellant as evidence on his behalf. Although this was not the transaction charged against appellant, and might be considered another uttering of said deeds, yet it was competent testimony, as showing a use by appellant of said deeds, and illustrating his intent and purpose in having said deeds recorded." 61. People v. Compton, 123 Cal. 403, 56 Pac. 44; State v. Sherwood, 90 Iowa 550, 58 N. W. 911; State v. Taylor, 46 La. Ann. 1332, 16 So. 190; People v. Brigham, 2 Mich. 550; People v. Caton, 25 Mich. 388; State v. Harner, 48 Mo. 520; Smith v. State, 20 Neb. 284, 29 N. W. 923, 57 Am. Rep. 832. 62. People v. Compton, 123 Cal. 403, 56 Pac. 44; State v. Eaton, 166 Mo. 575, 66 S. W. 539; People v. Rathbun, 21 Wend. (N. Y.) 509; Keeler v. State, 15 Tex. App. 111; Santolini v. State, 6 Wyo. 110, 42 Pac. 746. In Brazil v. State, 117 Ga. 32, 43 S. E. 460, the court, citing Bish. New Crim. Law, stated: Since the offense of uttering is an attempt' to cheat by means of such an instrument, it is complete when the forged instrument is offered, and acceptance of it is unnecessary, while yet it does not take away or dimin ish the crime.' That is to say, the guilty intent which accompanies such an attempt to defraud is the gravamen of the offense, and is punishable whether the attempt proves successful or not. Hence, one fraudulently uttering a forged instrument capable of working legal injury cannot escape punishment for his felonious intent merely because, through ignorance or stupidity, he undertook to make a use of such instrument not calculated to deceive a person familiar with the law, but which, as matter of fact, accomplished his purpose. The use made of the writing is, of course, to be taken into consideration, but only with a view of determining the intent of the person, as evidenced by his conduct." |