been held necessary to allege the name of the person intended thereby to be defrauded.' But statutes relieving the prosecution from the necessity of proving the name of the person intended to be defrauded are so general that it may now be laid down as the rule that it is unnecessary to allege or prove that fact, a general intent to defraud being sufficient.2 § 772. Existence of corporation.- Under the doctrine that it is necessary to allege and prove the name of the person to be defrauded, it has been held with some strictness that where the instrument purports to be the note or obligation of a bank or other corporation the corporate existence must be alleged and proved. Under some statutes it is enough to allege that the instrument purported on its face to be the note of a bank, without alleging or proving the name of such bank. But to sustain the charge of intent to defraud a person named it is not necessary to prove that defendant had such person in mind. It is sufficient that the act would have defrauded him: U. S. v. Long, 30 Fed. R. 678. The charge of intent to defraud two or more persons is sustained by proof of intent to defraud one of them: Gates v. S., 71 Miss. 874; McDonnell v. S., 58 Ark. 242. 1 McClellan v. S., 32 Ark. 609; S. v. Murphy, 17 R. I. 698. Contra, S. v. Hart, 67 Ia. 142. An averment of passing to A. will not be supported by proof of passing to B. through A., an innocent agent: Rouse v. S., 4 Ga. 136. 2 McClure v. C., 86 Pa. St. 353; S. v. Kimball, 50 Me. 409; S. v. Keneston, 59 N. H. 36; S. v. Lurch, 12 Oreg. 104; Roush v. S., 34 Neb. 325; S. v. Hart, 67 Ia. 142; S. v. Maxwell, 47 Ia. 454; P. v. Van Alstine, 57 Mich. 69; S. v. Fisher, 65 Mo. 437; S. v. Warren, 109 Mo. 430; S. v. Gullette, 121 Mo. 447; P. v. Stearns, 23 Wend. 634; Noakes v. P., 25 N. Y. 380; P. v. D'Argencour, 95 N. Y. 624; Phillips v. S., 17 Ga. 459; Dukes v. S., 94 Ga. 393; U. S. v. Moses, 4 Wash. C. C. 726; U. S. v. Jolly, 37 Fed. R. 108; Reg. v. Marcus, 2 C. & K. Even 356. So held, also, in cases of uttering: S. v. Barrett, 8 Ia. 536; S. v. Hart, 67 Ia. 142; so also in passing counterfeit money: S. v. Morton, 8 Wis. 352. The law presumes the intent to be to defraud any one who may suffer a loss by receiving the false paper as genuine: U. S. v. Shellmire, 1 Baldw. 370. 3 S. v. Givens, 5 Ala. 747; Kennedy v. C., 2 Met. (Ky.) 36; S. v. Murphy, 17 R. I. 698; S. v. Morton, 8 Wis. 352; De Bow v. P., 1 Denio, 9. But held not necessary that the bank shall have actually commenced business, if it was in such condition that it might be prejudiced by the forged notes purporting to be issued by it: P. v. Peabody, 25 Wend. 472. Where the bank named was not within the state, held, that the indictment should aver its existence: S. v. Twitty, 2 Hawks, 248. 4 P. v. Peabody, 25 Wend. 472; Johnson v. S., 35 Ala. 370; U. S. v. Foye, 1 Curtis, 364. Under a statute punishing the forgery of any note, etc., it is sufficient to prove the forgery of the note of an unchar. tered bank: Murry v. C., 5 Leigh, 720. where the existence of the bank must be alleged, evidence that notes of such bank are in general circulation has been held sufficient proof of such existence.1 Under more recent statutory provisions, allegation or evidence of the incorporation or existence of the bank is unnecessary.2 § 773. Perpetration of fraud.-It is not necessary that the fraud be effected in order to constitute the offense, if fraud was intended. It is immaterial whether the expected advantage was to accrue to the forger himself or to another, or whether the purpose was successfully attained or not. In case of uttering, it is necessary, aside from statute, to show the perpetration of the fraud." II. COUNTERFEITING. 8774. What deemed counterfeit; similitude.- Some degree of similitude is evidently essential to constitute counterfeiting as known at the common law, but in early English cases it was held that a stamping or impression was not required, and that to make a piece of metal resembling a common worn coin without any impression or stamping constituted counterfeiting. It was said that it was a question of fact whether the coin made was in resemblance to the real coin. It has also been held by the English court that to file off the edges of a genuine coin so as to remove the milling entirely, and then add a new milling, renders the coin false and counterfeit. Under a statute punishing the possession or passing of 1C. v. Carey, 2 Pick. 47; Sasser v. S., 13 Ohio, 453, 486; P. v. Ah Sam, 41 Cal. 645; Reed v. S., 15 Ohio, 217; C. v. Smith, 6 Serg. & R. 568; Cady v. C., 10 Grat. 776. Roush v. S., 34 Neb. 325; C. v. Smith, 6 Serg. & R. 568. 3 Rex v. Ward, 2 East, P. C. 861; Dunn v. P., 4 Colo. 126; S. v. Phillips, 78 Mo. 49; S. v. Washington, 1 Bay, 120; S. v. Lurch, 12 Oreg. 99; nor that fraud was possible: Reg. v. Nash, 2 Den. 448. Thus, in case of forged papers to be used in making entry of goods at the custom-house, the existence of such goods need not be alleged: U. S. v. Lawrence, 13 Blatch. 211. The fact that the 4 S. v. Cross, 101 N. C. 770. 7 Rex v. Welsh, 1 East, P. C. 87, 164. counterfeit gold dust for the purpose of defrauding, it was said that the crime was established by proving that the dust was debased, though to an inconsiderable extent. But to make a token which does not purport to be an imitation or in substitution for any known coin is not counterfeiting. The resemblance, however, need not be exact; it is enough if the false coin would be likely to deceive one not an expert, but using ordinary caution. Here the distinction between counterfeiting as a violation of the laws of the United States and the same act as a crime against state law becomes apparent. The offense, so far as the United States is concerned, consists in making something in imitation of the coin, bills, bonds, etc., of the United States, and unless such imitation exists the offense against federal law is not committed, so that a similitude seems necessary; and the making of an instrument like a United States bond and blank as to signature does not constitute an offense. But it is not essential that the instrument should purport to be an obligation of the United States or have such similitude thereto as to deceive experts, if it is calculated to deceive a person of ordinary observation and care. Under a 4 statute prohibiting the counterfeiting or executing of any impression in the likeness of any obligation of the United States, the prohibited act is held criminal although the similitude between the impression and the original is not such that the 1P. v. Page, 1 Ida. N. S. 189. 2 U. S. v. Bogart, 9 Ben. 314. U. S. v. Hopkins, 26 Fed. R. 443; U. S. v. Morrow, 4 Wash. C. C. 733; U. S. v. Burns, 5 McLean, 23; U. S. v. King, 5 McLean, 208; Clark v. S., 8 Ohio St. 630; Dement v. S., 2 Head, 505; S. v. Gutridge, 1 Bay, 285. Whether the imitation of minor coin shall be deemed counterfeiting under a particular statute will depend on the statutory language: U. S. v. Bicksler, 1 Mackey, 341. Under early English statutes, uttering or tendering counterfeit copper money was not indictable: Rex v. Cirwan, 1 East, P. C. 182. And the question of similitude is for 6 U. S. v. Williams, 14 Fed. R. 550; 7U. S. v. Sprague, 48 Fed. R. 828. 4 See infra, § 790. counterfeit is calculated to deceive the public.1 And where coins had been produced which were capable of being treated as genuine, it was held that the crime of counterfeiting was complete although defendant intended to coat them with silver before putting them into circulation. But under state statutes the offense is a species of fraud, and it is not necessary to allege that the counterfeit had any similitude to the current coin, or was of any value.3 And it is counterfeiting to imitate any bank-notes which have had a legal existence although the bank which issued them no longer exists. It is not necessary that the note purported to be of any actually existing bank, if the prosecution is for passing a false note. But on the ground of fraud there can be no conviction for uttering and passing a bill which purports to be of a kind forbidden by statute, as everyone would be supposed to know that such a bill could not be lawfully received. However, the question whether the offense consists in the imitation of a valid note or coin will depend on the form of the statute, and if its language relates to an instrument made in the similitude of a bill issued by a bank established by law, it will not cover a note which is not like any bank-note of a known bank, but a purely fictitious note. Even under such statutory language it is not necessary that the bill bear similitude to any bill actually issued by the bank, if there be such bank having authority to issue bills.o 1 Ex parte Holcomb, 2 Dill. 392. Fraudulently putting off a Confederate note for valid money does not constitute the offense of passing a note in imitation of a national bank note: U. S. v. Wilson, 44 Fed. R. 751. The penalty for violating the federal statute forbidding issuance of business cards in likeness of United States bonds or national bank notes is to be recovered in a qui tam action and not by indictment: U. S. v. Laescki, 29 Fed. R. 699. 2 U. S. v. Abrams, 18 Fed. R. 823. 3 S. v. Williams, 8 Ia. 533. If the statute probibits the making of a counterfeit of current coin it must appear that the coin counterfeited is current: Nicholson v. S., 18 Ala. 4 White v. C., 4 Binn. 418. 7 C. v. Morse, 2 Mass. 138; S. v. Mc- 8 C. v. Smith, 7 Pick. 137; Trice v. S., 2 Head, 591. So held, also, under federal statute as to counterfeiting treasury notes: U. S. v. Owens, 37 Fed. R. 112. In forgery similitude is not necessary: See supra, § 761. By an early English statute the coloring or gilding base coin to resemble coin of a higher value was criminal.1 One who gilds false coin already made is guilty with those who make the coin.2 § 775. Foreign coin or notes.-The states punish counterfeiting of the notes of foreign banks or the coin of a foreign country circulating as currency. But a statute with reference to the counterfeiting of currency which is recognized by usage does not cover the case of coin issued in contravention of the laws of the United States, and therefore illegal. Congress in the exercise of its power to define and punish offenses against the law of the United States may make the counterfeiting of the notes or coin of a foreign government criminal. The court and jury will take notice without proof as to what coins are made current by act of congress, so that the counterfeiting of them is punishable by federal law; and it is sufficient in an indictment to charge defendant with having passed counterfeit "dollars." 7 § 776. Intent. If the statute forbids the making of counterfeit coin, the intent is immaterial. The doctrine of intent in general in such cases will be found discussed elsewhere in this chapter.9 III. POSSESSION OF COUNTERFEITING TOOLS. § 777. What criminal. At common law it is a misdemeanor to have tools for counterfeiting with intent to use them; 10 and at common law, or under statutes similar in effect, 1 Rex v. Lavey, 1 East, P. C. 166; Rex v. Case, 1 East, P. C. 165; Reg. v. Turner, 2 Moody, 42. 2 Rasnick v. C., 2 Va. Cas. 356. 3 C. v. Delany, 1 Grant, 224; C. v. Stearns, 10 Met. 256. And see Reg. v. Roberts, Dears. 539. So a statute providing for the punishment of counterfeiting private trade-marks may cover trade-marks of a foreign merchant: S. v. Gibbs, 56 Mo. 133. 4 C. v. Bond, 1 Gray, 564. 5 U. S. v. White, 25 Fed. R. 716; U. S. v. White, 27 Fed. R. 200. But held that the Spanish head pistareen was not a coin made current by law in the United States, and was therefore not subject of counterfeiting: U. S. v. Gardner, 10 Pet. 618. 6 U. S. v. Burns, 5 McLean, 23; U. S. v. King, 5 McLean, 208. 7 Peek v. S., 2 Humph. 78. 8 U. S. v. Russell, 22 Fed. R. 390. It is not necessary to charge the act as done with intent to defraud: U. S. v. Otey, 31 Fed. R. 68. 9 Supra, § 766, and infra, § 788. |