be a false instrument, and if it is understood to be the instrument of the one who signs it, his use of a fictitious name will not make it a forgery, the credit having been given to him without regard to the name. On similar principles it is forgery to sign a dead man's name to an instrument with intent to defraud. One who made a false power of attorney authorizing him to receive a seaman's wages, executing it in the name of a supposed child of the deceased seaman as administratrix, there being in fact no such child, was held guilty of forgery.' § 765. Alteration.— A fraudulent alteration equally with a false making or false signature will constitute forgery,' and this is so even though, by statute, alteration is expressly made criminal. The instrument thus altered may be charged as forged. So it is forgery to detach a condition from an instrument by which it is converted into an instrument of a different effect, or to change or erase an indorsement. Raising the amount mentioned in an instrument is a well-recognized form S. v. Minton, 116 Mo. 605; S. v. Hahn, 38 La. An. 169; Rex v. Bolland, 2 East, P. C. 958; Rex v. Lewis, 2 East, P. C. 957; Rex v. Wilks, 2 East, P. C. 957; Rex v. Taylor, 2 East, P. C. 960; Rex v. Taft, 2 East, P. C. 959; Rex v. Marshall, Russ. & Ry. 75; Rex v. Parkes, 2 East, P. C. 963; Rex v. Whiley, Russ. & Ry. 90; Rex v. Peacock, Russ. & Ry. 278; Reg. v. Rogers, 8 C. & P. 629. And see article in 30 Am. L. Rev. 500. Evidence that no person of the character and address represented on the instrument is to be found is prima facie evidence of the non-existence of such person: P. v. Eppinger, 105 Cal. 36; Rex v. Backler, 5 C. & P. 118; Rex v. King, 5 C. & P. 123; Reg. v. Ashby, 2 F. & F. 560; Reg. v. White, 2 F. & F. 554. But the fact that a person uses another name than that by which he is generally known will not constitute forgery, unless it appears that such assumption was with the original purpose of committing the fraud involved in the use of the duplicate name: Reg. v. White, 5 Cox, 290; Rex v. Francis, Russ. & Ry. 209; Rex v. Bontien, Russ. & Ry. 260; Rex v. Aickles, 2 East, P. C. 968. 1 Rex v. Dunn, 2 East, P. C. 961; Reg. v. Martin, 5 Q. B. D. 34. 2 Henderson v. S., 14 Tex. 503; Brewer v. S., 32 Tex. Ap. 74; Billings v. S., 107 Ind. 54. 3 Rex v. Lewis, 2 East, P. C. 957. 4 S. v. Wooderd, 20 Ia. 541; Caulkins v. Whisler, 29 Ia. 495; U. S. v. Wood, 2 Cranch, C. C. 164; S. v. Waters, 1 Treadw. Const. 669; S. v. Floyd, 5 Strobh. 58; S. v. Kattle. mann, 35 Mo. 105. 5 Rex v. Teague, 2 East, P. C. 979. 6 C. v. Woods, 10 Gray, 477; C. v. Boutwell, 129 Mass. 124; Stoughton v. S., 2 Ohio St. 563; S. v. Weaver, 13 Ired. 491; Rex v. Dawson, 2 East, P. C. 973. And see infra, § 801. 7S. v. Stratton, 27 Ia. 420. 8 Garner v. S., 5 Lea, 213; S. v. McLeron, 1 Aik. 311; Rex v. Birkett, Russ. & Ry. 251; or to obliterate a release indorsed on the instrument: S. v. Thornburg, 6 Ired. 79. 6 of forgery. Where one fills a blank in an instrument without authority to do so, he commits forgery;2 equally so if, having authority to fill in a certain amount, he inserts a larger amount.3 The alteration of a note by inserting, without authority, a rate of interest where a blank for the rate of interest has been left, or a material change in the date of the instrument, will constitute forgery. But the alteration, to constitute forgery, must be material; and a harmless alteration,' or one which does not affect legal rights, will not constitute a forgery. It is not necessary, however, that the alteration be such as that the instrument would, if genuine, be effective, but only that the instrument be given the general appearance of one which would be effectual if genuine. Where the indictment charges the alteration as the means of committing forgery, the nature of the alteration must be stated so as to make it appear that it was material.10 And it must also appear that the instrument altered was genuine." § 766. Intent to defraud.― The intent to defraud is essential to constitute the crime of forgery.12 And this intent must be alleged; 13 and the court should include that question in its C. v. Hide, 94 Ky. 517; Rex v. Dawson, 2 East, P. C. 978; Rex v. Elsworth, 2 East, P. C. 986; Reg. v. Vaughan, 8 C. & P. 276; Rex v. Post, Russ. & Ry. 101. And see Haynes v. S., 15 Ohio St. 455. But where pieces were cut from a bank-bill with the intention of inserting other pieces, thus raising the amount, held, that the crime of forgery had not yet been accomplished: C. v. Hayward, 10 Mass. 34. 2 Flower v. Shaw, 2 C. & K. 703. 3 Rex v. Hart, 7 C. & P. 652; Reg. v. Wilson, 2 C. & K. 527. 4 Conger v. Crabtree, 88 Ia. 536. 5 Allen v. S., 79 Ala. 34; S. v. Maxwell, 47 Ia. 454; Rex v. Atkinson, 7 C. & P. 669; Reg. v. Milton, 10 Cox, 364. 6 S. v. Riebe, 27 Minn. 315; S. v. Bryant, 17 N. H. 323. But falsely putting a witness' name to a bond was held forgery, although it would be valid without being witnessed: S. v. Gherkin, 7 Ired. 206. 7 Jackson v. S., 72 Ga. 28. 8 S. v. Dorrance, 86 Ia. 428. 9 Haynes v. S., 15 Ohio St. 455. 10 Bittings v. S., 56 Ind. 101; Kahn v. S., 58 Ind. 168; S. v. Fisher, 58 Mo. 256; Mount v. C., 1 Duv. 90; S. v. Weaver, 13 Ired. 491. But the indictment may follow the statute in charging that defendant did falsely make, forge, alter and counterfeit, etc., without setting out the particular alteration relied upon: S. v. Flye, 26 Me. 312. 11 Moore v. S., 33 Ga. 225. Thus, it must appear that the instrument had become effectual by being put into circulation: S. v. Greenlee, 1 Dev. 523. Contra, Rex v. Kinder, 2 East, P. C. 855. 12 Pa. v. Misner, Addison, 44. 13 S. v. Garrigan, 36 Kan. 322; S. v. Seran, 28 N. J. 519; Hooper v. S., instructions to the jury. If the act is done under the mistaken belief of authority the crime is not committed. The criminal intent must exist at the time the act is done; if the instrument is signed in good faith and afterwards used as that of another, the act is not forgery. In prosecutions for uttering or passing forged instruments the knowledge of the character of the instrument is essential to the crime; but the allegation of knowledge is not essential where the charge is that of forgery." However, in cases of uttering, the intent to defraud as well as the knowledge of the falsity of the instrument is essential. Knowledge that a deed of land is a forgery cannot be imputed to one by reason of constructive notice by a public record of the existence of a previous grant inconsistent with the one in question.' § 767. Intent inferred. The intent to defraud may be inferred from the circumstances or the character of the act, if the perpetration of the fraud would be the natural result of the act done. It is the making, etc., with a fraudulent intent, whereby another may be prejudiced, that constitutes forgery; and therefore the fact that defendant intended to secure a just claim, or that he intended to take up the instrument at maturity and had the means to do so, and thus prevent injury,10 or that he intended to devote the money procured by the forgery to such purpose as to prevent pecuniary injury to the per 8 Humph. 93; Williams v. S., 9 Humph. 79; S. v. Jackson, 89 Mo. 561. 1 S. v. Warren, 109 Mo. 430. 2 Kotter v. P., 150 Ill. 441; Claibourne v. S., 51 Ark. 88; Montgomery v. S., 12 Tex. Ap. 323. 3 C. v. Foster, 114 Mass. 311. 4 S. v. Williams, 66 Ia. 573; S. v. Nicholson, 14 La. An. 785. And see infra, § 789. 5 S. v. Cook, 52 Ind. 574; Reg. v. Bowen, 1 C. & K. 501. 6 Couch v. S., 28 Ga. 367. 7 Pearson v. S., 55 Ga. 659. 8 S. v. Kimball, 50 Me. 409; Fletcher v. S., 49 Ind. 124: U. S. v. Brooks, 3 MacArthur, 315; Smith v. S., 29 Fla. 408; Phillips v. S., 6 Tex. Ap. 364. For instance, the presentation of a forged order to the partner of the person on whom it is drawn, and the delivery of goods by him thereunder, will show fraudulent intent, and will not constitute a variance: S. v. Hall, 108 N. C. 776. If a forged acceptance is knowingly uttered with intent that the bill be taken as a bill with a genuine acceptance, the intent to defraud the person to whom the bill is passed and also the person whose name is used is to be presumed: Reg. v. Cooke, 8 C. & P. 582. 9 S. v. Wooderd, 20 Ia. 541; Bush v. S., 77 Ala. 83. 10 C. v. Henry, 118 Mass. 460; Reg. v. Geach, 9 C. & P. 499. son defrauded,' will not prevent the act being criminal. The false making, without the uttering, may be criminal, but the presumption of an intent to defraud does not arise from proof of that act alone. The possession of the forged instrument is evidence tending to prove a fraudulent intent, but is not conclusive. Intoxication and insanity are defenses to the same extent only as in other cases where criminal intent is charged.3 § 768. Execution of the intent.-At common law it was necessary to charge the intent to defraud some person or persons. The act must be to the prejudice of somebody's rights or it will not constitute forgery; and even though, as is stated in a following section, it is no longer necessary to charge the intent to defraud a particular person, nevertheless there must be proof of the intent to defraud some one. It is not necessary that the injury intended be pecuniary; it is sufficient that the intention be to deprive the other of a legal right. § 769. Fraudulent tendency of the act.-It must appear either from the face of the instrument or from averments in the indictment that the act charged had a tendency to or was calculated to defraud. But it is not necessary to show in what manner the act charged is to result in fraud; that is a matter of evidence.10 § 770. Person to be defrauded.-In cases of forgery there are usually two persons who legally may be defrauded, the one 1 Claiborne v. S., 51 Ark. 88. 2 Fox v. P., 95 Ill. 71; Rex v. Crocker, Russ. & Ry. 97. 3 P. v. Blake, 65 Cal. 275; U. S. v. Roudenbush, 1 Bald. 514. 4 Drake v. S., 19 Ohio St. 211. 5 Pauli v. C., 89 Pa. St. 432; Reg. v. Tylney, 1 Den. 319. 6 See infra, § 771. 7 Reg. v. Hodgson, Dears. & B. 3. 8 So held under a charge of forging a deposition to prevent a decree of divorce being rendered: S. v. Kimball, 50 Me. 409. To make a forged order for a diploma may be criminal: Alexander v. S., 28 Tex. Ap. 186. A false entry in books made with intent to cover up a previous defalcation is sufficient as to the injury intended: Phelps v. P., 72 N. Y. 365. But the thing intended must be calculated to put the injured party in a worse condition than before: Colvin v. S., 11 Ind. 361. 9 C. v. Hinds, 101 Mass. 209; C. v. Costello, 120 Mass. 358; C. v. Dunleay, 157 Mass. 386; P. v. Cady, 6 Hill, 490; Clark v. S., 8 Ohio St. 630; Yount v. S., 64 Ind. 443. And while it is not necessary to allege and prove intent to defraud a particular person, yet the intent and means of defrauding must be shown: Reg. v. Hodgson, Dears. & B. 3; Reg. v. Trenfield, 1 F. & F. 43. 10 Mead v. S., 53 N. J. 601; S. v. Kimball, 50 Me. 409; S. v. Maxwell, 47 Ia. 454; Travis v. S., 83 Ga. 372; Rex v. Powell, 2 East, P. C. 976. whose name is forged and the one to whom the forged instrument is to be passed. The intent alleged and proved may be as to the one or the other. If money is obtained from the payee upon the instrument forged, it will sufficiently show intent to defraud such payee rather than the apparent maker. The intent to defraud the apparent maker may be inferred even where there is such want of similitude that the maker would not be likely to pay the instrument. On the other hand, where a forged check on one bank was presented to another to be cashed, it was held that the intent to defraud the latter was proven.* But where under statute a person was prosecuted for passing counterfeit gold dust, it was held that the requisite intent was intent to defraud the receiver. Where the charge is of forging an auditor's warrant on the state treasurer, the intended fraud should be alleged as against the state." It is immaterial that the person charged as intended to be defrauded is a servant only, if that fact is unknown to the defendant. In an indictment for forging a transfer of shares of stock, the fraud may be alleged as upon the stockholder and the company. Where the intent to defraud is alleged as against an individual, proof that the fraud will affect the firm of which he is a member is sufficient." 8771. Name of person intended to be defrauded.-It seems that, aside from statute, it is necessary to allege the name of the person intended to be defrauded, or to state that his name is to the grand jurors unknown. 1S. v. Cleaveland, 6 Nev. 181. 2 Duffin v. P., 107 Ill. 113; Reg. v. Trenfield, 1 F. & F. 43. Rex v. 6 Cunningham v. S., 49 Miss. 685. So a forged warrant on the treasurer of a school township should be alleged to have been with intent to defraud the board: Gregory v. S., 11 Ohio St. 329. 'C. v. Starr, 4 Allen, 301. So in cases of uttering it has from to be the owner of the stock would be defrauded thereby: Reg. v. Nash, 2 Den. 493. 9 S. v. Hastings, 53 N. H. 452; Reg. v. Hanson, Car. & M. 334. And where the indictment charged the forgery of the name of the firm with intent to defraud two persons named, and it did not appear that they composed the firm, the evidence was held insufficient: S. v. Harrison, 69 N. C. 143. 10 Stone v. S., 20 N. J. 404; S. v. Weller, 20 N. J. 521. So held in case of counterfeiting: S. v. Odel, 3 Brev. 552; Cunningham v. S., 49 Miss. 685; Rex v. Rushworth, Russ. & Ry. 317. |