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forgery may still be maintained as a common-law indict

ment. 647

394. False Making of Instrument.

648

(a) In General.-To constitute forgery at common law, there must be a false making of an instrument. Mere fraud and false pretenses are not enough. The instrument must be false. It must be made to appear to be other than it really is." It is forgery to sign another man's name to a note, without authority, and with intent to defraud, and thus make the instrument appear to be the note of the person whose name is signed, but it is not forgery for a person to sign his own name to an instrument, and falsely and fraudulently represent that he has authority to bind another by doing so,649 or for a person to sign another's name "by" himself as attorney in fact,650 for in such a case the instrument is not falsely made, but is just what it purports to be, and the signer is guilty of false pretenses only. The same is true of a receipt. It is not forgery for a person to falsely and fraudulently represent that he has authority to receive money for another, and to sign, not the other's name, but his own, to the receipt for the money.651 On the same principle it has been held that a man does not commit forgery in signing the name of a pretended firm, and falsely representing that there is such a firm composed of himself and another. 652

647 See Com. v. Ray, 3 Gray (Mass.) 441; People v. Shall, 9 Cow. (N. Y.) 778.

648 Reg. v. White, 1 Den. C. C. 208, 2 Cox, C. C. 210, 2 Car. & K. 404; Rex v. Arscott, 6 Car. & P. 408; In re Tully, 20 Fed. 812; People v. Fitch, 1 Wend. (N. Y.) 198, 19 Am. Dec. 477; State v. Young, 46 N. H. 266, 88 Am. Dec. 212; Com. v. Baldwin, 11 Gray (Mass.) 197, 71 Am. Dec. 703; State v. Willson, 28 Minn. 52, 9 N. W. 28. 649 Reg. v. White, supra.

650 State v. Willson, supra; State v. Taylor, 46 La. Ann. 1332, 16 So. 190, 49 Am. St. Rep. 351, 25 L. R. A. 591.

651 Rex v. Arscott, supra.

652 Com. v. Baldwin, 11 Gray (Mass.) 197, 71 Am. Dec. 703, Mikell's Cas. 940. It would seem that this is forgery, on the ground that it is the use of a fictitious name. See post, p. 908.

(b) False Writing in One's Own Name.-A person, however, may be guilty of forgery in making a false instrument in his own name. Thus, in an English case, it was said that “every instrument which purports to be what it is not, whether executed by a person who is not the person purporting to execute it, or bearing a date which is not the true date, is a forgery," and it was held to be forgery for the grantor in a deed to antedate the same for the purpose of defrauding another.653

(c) Using One's Own Name as That of Another.-It is also a forgery for a person to sign his own name to an instrument with a fraudulent intent to have the instrument received as executed by another person having the same name.854 It was so held in an English case, where the accused, having obtained possession of a bill payable to another person of the same name, fraudulently indorsed and negotiated it.655 There are similar cases in this country.

656

(d) Using Fictitious or Assumed Name.-Forgery may be committed by signing a fictitious or assumed name, if it be done with intent to defraud, for this is the false making of an instrument.657 Thus, it has been held that a person is guilty

653 Reg. v. Ritson, L. R. 1 C. C. 200.

654 Mead v. Young, 4 Term R. 28; Parkes' Case, 2 Leach, C. C. 775, 2 East, P. C. 963; People v. Peacock, 6 Cow. (N. Y.) 72; Barfield v. State, 29 Ga. 127, 74 Am. Dec. 49; Com. v. Foster, 114 Mass. 311, 19 Am. Rep. 353.

655 Mead v. Young, 4 Term R. 28.

656 See People v. Peacock, 6 Cow. (N. Y.) 72, where a man was held guilty of forgery in fraudulently indorsing, with his own name, a permit for the delivery of coal, when he knew that the real consignee was another person of the same name. See, also, Graves v. American Exch. Bank, 17 N. Y. 205.

657 Lewis' Case, Fost. C. L. 116; Rex v. Lockett, 1 Leach, C. C. 94, 2 East, P. C. 940, Mikell's Cas. 939; Rex v. Shepherd, 2 East, P. C. 967, 1 Leach, C. C. 226; Rex v. Bolland, 2 East, P. C. 958, 1 Leach, C. C. 83; Reg. v. Rogers, 8 Car. & P. 629; Reg. v. Ashby, 2 Fost. & F. 560; U. S. v. Mitchell, Baldw. 366, Fed. Cas. No. 15,787; State v. Hayden, 15 N. H. 355; Brown v. People, 8 Hun (N. Y.) 562, 72 N. Y. 571, 28 Am. Rep. 183; People v. Warner, 104 Mich. 337, 62 N. W. 405.

.659

of forgery if he fraudulently indorses a bill or note by signing a fictitious name, and negotiates the same, representing that the indorsement is by a man of credit;658 or if he makes a note in the name of a fictitious bank;6 or if, with intent to defraud, he assumes a name, and executes a note in such name and negotiates the same.660 In such cases, however, the credit must have been given, not to the accused, but to the name.681

(e) Genuine Signature of Third Person.-Forgery may also be committed by procuring the genuine signature of another to an instrument with the fraudulent intent to pass the instrument as that of a different person having the same name.662 Thus, it has been held to be forgery to get another to accept a bill in his true name, intending at the time to represent such name to be the name of another person, for the purpose of fraud, 663 or to put an address to the name of the drawer of a bill, while the bill is in the course of completion, with intent to make the name appear to be that of a different person.

664

(f) Obtaining Another's Signature by Fraud.-According to the decided weight of authority, it is not forgery to obtain a

658 Rex v. Bolland, 2 East, P. C. 958, 1 Leach, C. C. 83; Rex v. Lockett, 1 Leach, C. C. 94, 2 East, P. C. 940, Mikell's Cas. 939.

659 State v. Hayden, 15 N. H. 355.

660 Rex v. Marshall, Russ. & R. 75; Rex v. Whiley, Russ. & R. 90; Rex v. Francis, Russ. & R. 209.

661 Reg. v. Martin, L. R. 1 C. C. 214, 49 L. J. C. C. 11. See 21 Alb. Law J. 91; 1 Crim. Law Mag. 266.

662 Reg. v. Mitchell, 1 Den. C. C. 282. And see Reg. v. Blenkinsop, 1 Den. C. C. 280, 2 Car. & K. 531, 2 Cox, C. C. 420; Reg. v. Epps, 4 Fost. & F. 81; Reg. v. Mahoney, 6 Cox, C. C. 487; Com. v. Foster, 114 Mass. 311, 19 Am. Rep. 353; Gregory v. State, 26 Ohio St. 510, 20 Am. Rep. 774; Barfield v. State, 29 Ga. 127, 74 Am. Dec. 49; People v. Rushing, 130 Cal. 449, 62 Pac. 742, 80 Am. St. Rep. 141.

The names need not be precisely the same. Reg. v. Mahoney, supra. Compare Rex v. Story, Russ. & R. 81.

663 Reg. v. Mitchell, 1 Den. C. C. 282.

664 Reg. v. Blenkinsop, 1 Den. C. C. 280, 2 Car. & K. 531, 2 Cox, C. C. 420.

person's signature to an instrument by means of false and fraudulent representations as to its contents, or as to the purpose for which the instrument is to be used.665 Nor is it forgery to fraudulently procure a person's signature to an instrument which has previously been altered without his knowledge.666

395. Manner of Making Instrument.

(a) In General.-The manner in which the false instrument is made is immaterial. It may be by writing with a pencil,667 though the writing may be dim,668 as well as by writing with a pen. It may be by printing or engraving.669 Thus, the false making of a railroad pass or ticket is forgery, though the whole instrument, including the signature, is printed or engraved.670 And it may be by making a mark as and for the signature of another." 671

(b) Alteration of Instruments.—The expression “false making" in the definition of forgery includes the fraudulent alteration of instruments. It is forgery to alter a genuine instrument in a material part, with intent to defraud, as by increasing the amount of a bill or note;672 changing a receipt from an acknowledgment of part payment to an acknowledgment of pay

665 Reg. v. Collins, 2 Mood. & R. 461; Reg. v. Chadwick, 2 Mood. & R. 545; Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441; Com. v. Sankey, 22 Pa. 390, Mikell's Cas. 943. Contra, State v. Shurtliff, 18 Me. 368. 666 Reg. v. Chadwick, 2 Mood. & R. 545.

667 Baysinger v. State, 77 Ala. 63.

668 Baysinger v. State, 77 Ala. 63.

669 Rex v. Dade, 1 Mood. C. C. 307; Com. v. Ray, 3 Gray (Mass.) 441; People v. Rhoner, 4 Park. Cr. R. (N. Y.) 166.

670 Reg. v. Boult, 2 Car. & K. 604; Com. v. Ray, 3 Gray (Mass.) 441. 671 Rex v. Dunn, 2 East, P. C. 962, 1 Leach, C. C. 57; State v. Robinson, 16 N. J. Law, 507.

672 Rex v. Teague, Russ. & R. 33, 2 East, P. C. 979; Rex v. Elsworth, 2 East, P. C. 986; Rex v. Post, Russ. & R. 101; Haynes v. State, 15 Ohio St. 455; State v. Waters, 3 Brev. (S. C.) 507; State v. Schwartz, 64 Wis. 432, 25 N. W. 417.

ment in full;673 changing the date of a receipt so as to make it cover other claims than those intended;674 changing the date of a bill or note that has been paid,675 or the date of an insurance policy;676 changing the name of a party to a contract; .6762 changing an indorsement on a bill or note so as to make it general instead of special;677 or tearing off a condition attached to a note, so as to render it negotiable.678

Immaterial Alterations.-To constitute forgery, the alteration of an instrument must be in a material matter, as in the cases above mentioned. An immaterial alteration is not forgery, though made with a fraudulent intent. Thus, it has been held that it is not forgery, whatever the intent may be, to sign a person's name to an instrument as a witness, when the instrument is of such a character that it does not require a witness to alter the terms of a written contract so as to make it correspond with the intention of the parties at the time it was executed,680 or to transform an accountable receipt for money into a promissory note where it does not appear that the legal effect of the receipt was changed.680a

.679

(c) Filling Blanks.-When an instrument is executed in blank, it is forgery to fraudulently fill in a blank so as to make the instrument different from what is intended.681 For exam

673 State v. Floyd, 5 Strob. (S. C.) 58.

674 Barnum v. State, 15 Ohio, 717, 45 Am. Dec. 601. And see State v. Kattlemann, 35 Mo. 105; State v. Maxwell, 47 Iowa, 454.

675 Rex v. Atkinson, 7 Car. & P. 669.

676 People v. Graham, 6 Park. Cr. R. (N. Y.) 135.

6768 Changing middle initial. State v. Higgins, 60 Minn. 1, 61 N.

W. 816, 51 Am. St. Rep. 490, 27 L. R. A. 74.

677 Rex v. Birkett, Russ. & R. 251.

678 State v. Stratton, 27 Iowa, 420, 1 Am. Rep. 282.

679 State v. Gherkin, 7 Ired. (N. C.) 206.

680 Pauli v. Com., 89 Pa. 432, 7 W. N. C. (Pa.) 396, 1 Crim. Law Mag. 126.

680a State v. Riebe, 27 Minn. 315, 7 N. W. 262.

681 Wright's Case, 1 Lewin, C. C. 135, Mikell's Cas. 943; Rex v. Hart, 1 Mood. C. C. 486, 7 Car. & P. 652; Reg. v. Wilson, 1 Den. C. C. 284, 2 Cox, C. C. 426, 2 Car. & K. 527; State v. Kroeger, 47 Mo. 552; Biles

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