that he is an officer and acting in the discharge of his duty, but interfering with the intention of quelling a fight, if they use more force than is necessary for that purpose, are liable to an indictment for an assault. a On the other hand, a defendant who aggressively assaults an officer in ignorance of the latter's official rank is said to be liable, from the fact that he voluntarily perpetrates an unlawful act, to conviction for the aggravated offence. But this exception is to be jealously limited to the strict text. It is against the policy of the state to clothe its servants with official immunities, except when engaged in official acts. The immunity belongs not to the individual but to the office; and if the immunity is to be vindicated, the office must be proclaimed. To punish resistance to a secret officer as a crime, turns first the officer into a spy, and then the spy into a despot. § 1292. Other defences. It is no defence to an indictment for forcibly obstructing an officer of the customs in the discharge of his duties, that the object of the defendant was personal chastisement, and not to obstruct or impede the officer in the discharge of his duties, if he knew the officer to be so engaged.c Even though an officer attempting to execute process be unauthorized, and therefore a trespasser, yet he is not bound to submit to unreasonable and unnecessary violence, and may defend himself against the same without being guilty of an assault. d On the trial of several persons for an assault upon an officer while serving a criminal process on one of them, an instruction to the jury that any act of that defendant, after he was arrested, which amounted to a resistance or obstruction of the officer, would render him liable, and that any person present, aiding, abetting, or approving that resistance, by words, acts, or signs, would be equally liable, affords no ground of exception, if that defendant only is found guilty of an assault on an officer in the discharge of his duty, and the others of a simple assault. e § 1293. Indictment. — In an indictment for resisting an officer a Com. v. Cooley, 6 Gray, 350. 531; 531; U. S. v. Ortega, 4 Wash. C. C. U. S. v. Benner, Baldwin, 234; ante, § 83. c U. S. v. Keen, 5 Mason's U. S. R. 453. d People v. Gulick, Hill & Denio (N. Y.), 229. e Com. v. Cooley, 6 Gray, Mass. 350. while attempting to serve a lawful process, it is not necessary to describe particularly the nature of the process, or the mode of the resistance.f But the indictment must set forth that such process was legal, or so describe it as to show it to be so; and if issued from a court of limited jurisdiction, it must appear that the court, in issuing it, acted within the sphere of their authority.g § 1294. An indictment for assaulting and obstructing an officer in the discharge of his duties as such, averred that the defendant made an assault upon the officer, and, while the latter was in the due and lawful execution of his office, did " unlawfully, knowingly, and designedly hinder and oppose him," &c.; this was held to be a sufficient allegation that the defendant knew that the person assaulted was an officer. h § 1295. Municipal and police officers. — Municipal and police are, equally with state officers, under the protection of this branch of the law. i f M'Quoid v. People, 3 Gilman, 76. g Cantrill v. People, 3 Gilman, 356; Slicker v. State, 8 Eng. (13 Ark.) 397. See State v. Henderson, 15 Mo. 486; 238 State v. Burt, 25 Vt. (2 Deane) 373. h Com. v. Kirby, 2 Cushing, 577-8. Johnson v. State, 30 Ga. 426. BOOK V. OFFENCES AGAINST PROPERTY. CHAPTER I. FORGERY. [For purposes of condensation the statutes on forgery, given in the sixth edition of this work, are here omitted. They will be found between § 1296 and § 1418 of that edition; and so far as material changes have been made, which have been judicially noticed, will he specifically referred to in the following pages.] I. FORGERY. 1. DEFINITION, § 1418. 2. MISDEMEANOR AT COMMON LAW, § 1419. 3. PRINCIPALS AND ACCESSARIES, § 1420. 4. PARTNERS AS AGAINST EACH OTHER, § 1421. 5. PERSONS FORGING THEIR OWN NAMES OR BOOKS, § 1422. Employing a man of straw as acceptor to charge another of same name, § 1433. 7. FALSE FILLING OF BLANK, § 1434. 8. FRAUDULENTLY INDUCING ANOTHER TO SIGN HIS NAME, § 1435. 9. MECHANICAL AGENCY OF FORGING, S 1436. 10. ERASURES AND MUTILATIONS, § 1437. 11. ALTERATIONS IN GENERAL, § 1438. When a person writes his own name, § 12. ALTERATIONS HOW PLEADED, § 1439. 1423. Two persons of one name, § 1423. Names slightly variant, § 1423. Assumed names, § 1424. Altering one's own signature, § 1425. Varying or altering one's own deed, § 1426. Introducing contemporaneously a false averment in one's own deed, § 1427. Falsifying one's own pass-book, § 1428. Falsifying settlements of accounts, § 1429. Falsifying books of original entries, § 1430. Clerk making false entries in employer's book, § 1431. 6. EXECUTING WRITINGS FOR ANOTHER WITHOUT AUTHORITY, § 1432. 13. FALSE PERSONATION OF ANOTHER, § 1440. 14. WHAT CAN BE FORGED, § 1441. (a.) Must be an instrument which may be ⚫ used in process against another, § 1441. (b.) Need not be in writing or words, § 1442. (c.) Bonds, deeds, commercial paper, receipts, &c., § 1443. (d.) Names of fictitious, or dead persons, or non-existing corporations, § 1444. (e.) Records and judicial writs, § 1444 a. (f.) Book entries, § 1444 b. (g.) Railway or other articles, § 1444 c. (h.) Opinions as to character of persons, or things, § 1444 d. (i.) Trade-marks, labels, &c., § 1444 e. 15. INSTRUMENTS TO BE FORGABLE MUST BE CAPABLE OF BEING USED AS PROOF IN SUITS, § 1444 f. (a.) Party injured not necessarily to be defendant, § 1444 g. (b.) Nor need he be of local legal exist ence, § 1444 h. (c.) Nor need he be capable of being im mediately defrauded, § 1444 i. (d.) Nor need the instrument be more than prima facie proof, § 1444 j. (e.) But void instrument is not subject of forgery, § 1444 k. (f.) Defects as to legal formalities (e. g. stamps, seals), § 1444 l. (g.) Prohibited or void bank notes, § 1444 m. (h.) Similitude to original, § 1444 n. 16. FRAUD AGAINST PUBLIC IN GENERAL, § 1444 0. 17. ASSENT OF PARTY INJURED, § 1444p. 18. UTTERINGS, § 1445. (a.) Uttering forged bank notes, § 1446. (b.) Uttering common law forgeries, § 1447. (c.) Evidence of uttering, § 1448. (d.) Principals and accessaries, § 1449. (e.) Having counterfeit money in possession with intent to pass, § 1450. (f.) Venue and jurisdiction, § 1451. (g.) Drunkenness as a defence, § 1451 a. 19. GUILTY KNOWLEDGE AND INTENT, § 1452. (a.) When presumed, § 1453. (b.) Proof of other forgeries or utterings, § 1457. (c.) Other circumstantial evidence of intent, § 1457 a. (d.) When charter of bank must be proved, § 1458. (e.) Intent to defraud individual sustained by fraud on firm, § 1460. (f.) Intention to pay no defence, § 1461. 20. HANDWRITING, § 1462. (a.) General proof of, § 1462. (b.) Experts, § 1465. (c.) Jury the judges, § 1465. (d.) When paper is lost or destroyed, § 1465. (e.) Collateral mechanical evidence of forgery, § 1465. (f.) Presumption of forgery from uttering, § 1465 a. 21. INDICTMENT. (a.) Coupling different stages of offence in one count, § 1466. (b.) How instrument is to be generally designated, § 1467. (c.) How the instrument should be set forth, § 1468. Foreign language, § 1468 (ante, § 313). What omissions are fatal, § 1469 (ante, § 312). Indorsements and independent obligations, § 1470. Date, &c., § 1471. Forged insertions, § 1472. Sewing forged instrument to paper, § 1473. (d.) "Tenor," § 1474. (e.) "Purport" and "Tenor," § 1475. (f.) Alterations, how to be pleaded, § 1480. (g.) How it must appear that the instrument is the subject of indictment, § 1482. (h.) Pleading when instrument is incomplete on its face, § 1486. (i.) Pleading of charters and acts of incorporation, § 1488. (j.) Averment of intent to defraud, § 1492. Possibility of fraud, § 1493. Party defrauded, § 1495. When bank is fictitious or extinct, § 1496. (k.) Averment of damage or injury, § 1498. (7.) Averment of person on whom instrument was passed, § 1499. II. COINING. 1. JURISDICTION, § 1500. 2. EVIDENCE, § 1501. 3. DESCRIPTION IN INDICTMENT, § 1504. 4. UTTERING, &c., § 1508. 5. PRESUMPTIONS, § 1510. 6. GENUINE ORIGINAL NEED NOT BE PROVED, § 1510. III. WITNESSES, ante, § 781. I. FORGERY. 1. Definition. § 1418. FORGERY at common law is defined by Sir Wm. Blackstone as the fraudulent making or alteration of a writing to the prejudice of another's rights, b and by Mr. East as the false making or altering, malo animo, of any written instrument for the purposes of fraud and deceit. c The offence is consummated by the false making of the instrument, with intent to defraud, without any uttering. d soon In 1865, in a remarkable case which will be hereafter criticised, e Cockburn, C. J., declared that forgery, "by universal acceptation, is understood to mean "“the making or altering a writing so as to make the alteration purport to be the act of some other person, which it is not." But this definition was found too scant, and afterwards, in 1869, we hear it announced on a crown case reserved, by Kelly, C. B., with the concurrence of all his associates, that the offence consists in the fraudulent making of an instrument, in words purporting to be what they are not, to the prejudice of another's rights. f By Blackburn, J., in the same case, the following definition from Comyn is adopted: "Forgery is where a man fraudulently writes or publishes a false deed or writing to the prejudice of another." This definition comes nearer than the two previous towards satisfying the cases which will appear hereafter. As, however, it is too limited in its description of the instrument of forgery ("deed" or "writing "), and too ambiguous in its designation of the grade of injury (" to the prejudice of another"), the following definition is now proposed : FORGERY IS THE FRAUDULENT FALSIFYING OF ANY MECHANICAL INSTRUMENT OF PROOF WHICH MAY BE USED AGAINST ANOTHER IN LEGAL PROCESS. 2. Misdemeanor at Common Law. § 1419. By the common law, forgery is a misdemeanor. By statutes passed in England and the United States, various kinds of forgery are made felonies. Whether in particular cases b 4 Blac. Com. 247. e See 2 Russ. on Cr. 6th Am. ed. 317, &c., for a full examination of the English cases; and see also Penn. v. M'Kee, Addison, 33; 2 East P. C. 852; Van Horne v. State, 5 Pike's Ark. R. 349; Com. v. Chandler, Thacher's C. C. 187; State v. Kimball, 50 Maine, 411. VOL. II.-16 d Com. v. Ladd, 15 Mass. 526; Com. v. Chandler, Thacher's Crim. C. 187. e Windsor, in re, 6 B. & S. 522; 10 Cox C. C. 118; and see post, § 1431, the latter report being the fullest. f R. v. Ritson, Law Rep. 1 C. C. 200. Post, § 1427. 241 |