CHAPTER XLIV

1 FORGERY IN GENERAL

ARTICLE 384.

DEFINITION OF FORGERY-INTENT TO DEFRAUD.

FORGERY is making a false document, as defined in Article 385, with intent to defraud.

An intent to defraud is presumed to exist if it appears that at the time when the false document was made there was in existence a specific person, ascertained or unascertained, capable of being defrauded thereby, and this presumption is not rebutted by proof that the offender took or intended to take measures to prevent such person from being defrauded in fact; nor by the fact that he had, or thought he had, a right to the thing to be obtained by the false document.

The presumption may be rebutted by proof that at the time when the false document was made there was no person who could be reasonably supposed by the offender to be capable of being defrauded thereby; but it is not necessarily rebutted by proof that there was no person who could in fact be defrauded thereby.

It is uncertain whether, in the absence of any evidence as to the existence of any person who can be defrauded by a false document, an intent to defraud will or will not be presumed. from the mere making of the document.

An intent to deceive the public or particular persons, but not to commit a particular fraud or specific wrong upon any particular person, is not an intent to defraud within the meaning of this Article.

Illustrations.

(1.) 2 A makes a false receipt, the effect of which, if the receipt were genuine, would be to render B accountable to C for a larger

13 Hist. Cr. Law, 180-188.

2 R. v. Boardman, 1838, 2 Moo. & Rob. 147.

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sum than B has in fact received on C's account.

A is presumed to have intended to defraud, although the receipt was not used in fact, and was probably not intended to be used in fact for the purpose of increasing B's liability.

(2.) 1 A imitates a Bank of England note with intent to defraud any person to whom it may be passed, but without specially intending to defraud the Bank of England. This is an intent to defraud.

(3.) 2 A makes a false acceptance to a bill of exchange, and puts it in circulation, intending to take it up, and actually taking it up before the bill is presented to the acceptor for payment. This is forgery with intent to defraud.

(4.) 3 A being directed by his master to fill up a blank cheque with an amount to be ascertained, and to take up a bill with the proceeds, fills it up for a larger amount and keeps the difference on a claim that it was due to him for salary. Here there is an intent to defraud.

(5.) A pays to his credit at a bank a false promissory note. The bank hold guarantees for a much larger amount. Notwithstanding this the inevitable conclusion is that he meant to defraud.

(6.) 5 A signs B's name without his authority to two deeds of transfer of railway shares, by one of which the shares purport to be transferred by C to B, and by the other to be transferred from B to D. 6 The circumstances are such that no one can be defrauded by these deeds. This rebuts the presumption of an intent to defraud raised by the writing of B's name.

(7.) 7 A imitates a cheque in B's handwriting and name on a bank at which, to A's knowledge, B had long ceased to keep an

1 24 & 25 Vict. c. 98, s. 12, would now apply in terms to such a case. In R. v. Mazagora, 1815, R. & R. 291, the judges held that the jury ought in such a case to have found an intent to defraud the Bank of England.

2 R. v. Geach, 1840, 9 C. & P. 499; and in the case stated by Coleridge, J., in R. v. Todd, 1843, 1 Cox, C. C. 57.

3 R. v. Wilson, 1847, 1 Den. 284.

4 Compare R. v. James, 1838, 7 C. & P. 553, with R. v. Cooke, 1838, 8 C & P. 582-5. I have taken the very words of Patterson, J. Inevitable conclusion " is a little less strong and distinct than "conclusive presumption of law," an expression which the judge seems to have shrunk from.

This is a barely possible supposition, though Cresswell, J., held that it was so in R. v. Marcus, 1846, 2 C. & K. 356. Rolfe, B., held otherwise in R. v. Hoatson, 1847, 2 C. & K. 777, see note.

7 This Illustration is founded on the dictum of Maule, J., in R. v. Nash, 1852, 2 Den. C. C. 499.

account. defraud.

1

The jury may infer from this an absence of intent to

(8.) 1 A imitates a cheque in B's name on a bank from which B had, without A's knowledge, withdrawn his balance the day before. Here the fact that no one could be defrauded by the false cheque does not rebut the presumption of an intent to defraud.

(9.) 2 A makes a false will. It does not appear whether there was or was not any person who could be defrauded by it. It is uncertain whether an intent to defraud is or is not to be presumed.

(10.) A forges a diploma of the College of Surgeons, intending to induce a belief that the document is genuine, and that he is a member of the College of Surgeons, and shows it to two persons with intent to induce that belief in them. This is not an intent to defraud within the meaning of this Article, though it is an intent to deceive.

ARTICLE 385.

MAKING A FALSE DOCUMENT DEFINED,

To make a false document is

(a.) to make a document purporting to be what in fact it is not;

(b.) 5 to alter a document without authority in such a manner that if the alteration had been authorized it would have altered the effect of the document;

(c.) to introduce into a document without authority, whilst it is being drawn up, matter which, if it had been authorized, would have altered the effect of the document; (d.) to sign a document

1 This illustration is founded on the dictum of Maule, J., in R. v. Nash 1852, 2 Den. C. C. 499.

2 Tuff's Case, 1848, 1 Den. C. C. 319. The Court were equally divided on a question which, I submit, was substantially the one stated.

3 R. v. Hodgson, 1856, D. & B. 3. It would, however, be an offence under the Medical Act, 21 & 22 Vict. c. 90, s. 40. This Act was passed in 1858, two years after the decision of R. v. Hodgson. The offence is "falsely pretending to be, &c., a surgeon, &c.," and the penalty recoverable on summary conviction is £20. The forgery of a diploma would seem to deserve more severe punishment.

4 Illustration (1).

5 Illustrations (2) and (3).

6 Illustrations (4) and (5).

(i.) in the name of any person without his authority, whether such name is or is not the same as that of the person signing;

1 (ii.) in the name of any fictitious person alleged to exist, whether the fictitious person is or is not alleged to be of the same name as the person signing;

2 (iii.) in a name represented as being the name of a different person from that of the person signing it, and intended to be mistaken for the name of that person;

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3 (iv.) in a name of a person personated by the person signing the document, provided that the effect of the instrument depends upon the identity between the person signing the document and the person whom he professes to be.

But it is not making a false document,

4 to procure the execution of a document by fraud;

5 to omit from a document being drawn up matter which would have altered its effect if introduced, and which might have been introduced, unless the matter omitted qualifies the matter inserted;

7 to sign a document in the name of a person personated by the person who signs it, or in a fictitious name, provided that the effect of the instrument does not depend upon the maker's identity with the person personated, or on the correctness of the name assumed by him.

8 It is not essential to the making of a false document that the false document should be so framed that if genuine it would have been valid or binding, provided that in cases in which the forgery of any particular instrument is made a specific offence by any statute, the false document must, in order that the offence may be completed, fall within the description given in the Act.

1 Illustrations (6) and (7).

2 Illustration (8).

3 Illustration (9).

4 Illustrations (10), (11).

5 Illustration (12).

6 Illustration (13).

7 Illustration (14).

8 Illustrations (15) (17).

1 The fact that a document is made to resemble that which it purports to be and is not, is evidence for the consideration. of the jury of an intent to defraud, but is not essential to the making of a false document.

2 Provided that in cases in which the forgery of any particular instrument is made a specific offence by any statute, the false document must have such a resemblance to the document which it is intended to resemble as to be likely to deceive a common person.

Illustrations.

(1.) 3 A conveys land to B in fee.

Afterwards A and C draw up and execute a deed purporting to be of earlier date than the conveyance to B, by which the same land purports to be let to C for a term of 999 years. The second deed is a false document,

though executed by A and C.

(2.) A obtains a blank acceptance from B, with authority to fill it up for any amount not exceeding £200. A fills it up for £500. This is a false document.

(3.) 5 A persuades his servant, William Wilkinson, to write his name across a stamped paper, so as to appear to be the name of the acceptor of a bill of exchange. A then fills up the bill and addresses it to Mr. William Wilkinson, Halifax, so as to make the bill appear as if it had been drawn upon and accepted by a different William Wilkinson. This is a false document.

(4.) A gets B to sign a receipt, and afterwards makes additions to it, so as to make it appear that a larger sum was paid to B than had actually been paid. The altered receipt is a false document.

(5.) A, employed to draw up B's will, inserts in it legacies out of his own head. The will is a false document.

1 Illustration (18).

2 Illustration (19).

3 R. v. Ritson, 1869, 1 C. C. R. 200, and in 1 Hawk. P. C. 264.

4 R. v. Hart, 1836, 1 Moo. 486; 7 C. & P. 652. In this case the words "£200 were written in the corner of the blank acceptance, and erased. Littledale, J., however, told the jury that the filling up the acceptance for a greater amount than that which was authorized was forgery R. v. Bateman, 1845, 2 Russ. Cr. 623; 1 Cox, C. C. 186, is to the same effect.

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5 R. v. Blenkinsop, 1847, 1 Den. C. 6 R. v. Griffiths, 1858, D. & B. 584. was reserved.

7 1 Hawk. P. C. 264.

C. 276; 2 Russ. Cr. 632.

It is not easy to say why this case