« PreviousContinue »
The not break throt, but having bergery and perjürle, there ar
prisoner pleaded the general issue to the felony, and the jury found him guilty of the offence. (u)
The offence of forgery at common law cannot be tried at the Trial of .quarter sessions, that court having no jurisdiction over it; nor forgery. The
quarter sescan they take cognizance of it as a cheat. (v) And it has been sions have no holden in several cases that the quarter sessions have no jurisdic- jurisdiction. tion in cases of forgery upon the statute 5 Eliz. c. 14. (2) Lord Kenyon, C. J., in speaking of the general jurisdiction of the quarter sessions, after deciding that the offence of soliciting a servant to steal his master's goods is cognizable by that jurisdiction, as falling within that class of offences, which being violations of the law of the land, have a tendency, as it is said, to a breach of the peace; proceeds thus,_"To this general rule there are “indeed two exceptions, namely, forgery and perjury ; why ex“cepted I know not; but having been expressly so adjudged, I “ will not break through the rules of law."(y)
The trial of forgery must be had in the county where the of- Trial must be fence is committed, as the indictment can only be preferred in in the county
where the ofthat county. And as it seldom happens that direct proof can be fence is comgiven of the very act of forgery, difficulties have sometimes oc- mitted. curred, in cases where there has been no offence of uttering by the prisoner, as to what shall be deemed sufficient evidence of the fact of forging within the county laid.
As to offences committed near the boundaries of counties, or 7 Geo. 4.c. 64. partly in one county and partly in another, the general provision offences on the
boundaries of of 7 Geo. 4. c. 64. s. 12. enacts “ that where any felony or mis- counties, or in “ demeanor shall be committed on the boundary or boundaries of two counties. “ two or more counties, or within the distance of five hundred “ yards of any such boundary or boundaries, or shall be begun in « one county and completed in another, every such felony or mis“ demeanor may be dealt with, inquired of, tried, and determined, “and punished, in any of the said counties in the same manner as “ if it had been actually and wholly committed therein.”
And as to the trial of accessories before the fact, the same sta- County for the tute (s. 9.) enacts, that in case the principal felony shall have trial of acces
ories. been committed within the body of any county, and the offence of so counselling, procuring, &c. shall have been committed within the body of any other county, the last mentioned offence may be inquired of, tried, &c. in either of such counties. And as to accessories after the fact, the same statute (s, 10.) enacts that such accessories may be tried by any court which has jurisdiction to try
(u) Coogan's case, O. B. 1787, i fit. In the above case of Coogan, the Leach 448. So in Reading's case, prisoner's counsel chiefly relied upon ante, 364, note (1), Buller, J., said Lord Hale's construction of Vaux's that the judgment being arrested for case, (2 Hale 246.) as reported by the informality of the record the prin Lord Coke, 4 Co. 44. 3 Inst. 214. soner might be again indicted for the (v) Yarrington's case, 1 Salk. 406. offence. And in Gilchrist's case, ante, Rex v. Gibbs, i East. R. 173. 2 East. 364, as the objection taken went only P. C. c. 19. s. 7. p. 864. 2 Hawk. P. to the form of the indictment, and C. c. 8. S. 64. not to the merits of the case, the pri- (x) Smith's case, Cro. Eliz. 87. soner was remanded to prison till the Wilson's case, Id. 601. Hunt's case, end of the sessions, that the prosecutor Id. 697. might be at liberty to prefer a better (y) Rex v. Higgins, 2 East. R. 18. indictment against him if he thought
commit ed in
the principal felon, and that if the offences be committed in dif
ferent counties, such accessories may be tried in either. (2) Parkes and
Two prisoners were indicted, the one, Parkes, for forging, the Brown's case. The bare fact
other, Brown, for uttering a forged promissory note for five guineas. of a forged It appeared clearly, that Parkes had forged the note: but the only note being ut- evidence offered, to shew that the forgery was committed in Midtered
dlesex, where the venue was laid, was that the prisoner Brown, by one pri- ' between whom and Parkes there was a great intimacy, had uttered soner, is no it in Middlesex, in the absence of Parkes, who was not proved to evidence of the forgery
have been cognizant of the fact, and that above forty of the same having been sort of five guinea notes in blank, without any signature, were
found upon Parkes, in the same county, together with a receipt, that county by another
under cover addressed to Brown, for 211. for four five guinea bills. prisoner, It appeared, that all the notes found upon Parkes, as well as that though an ac- upon which the indictment proceeded, were dated “ Ringhton, complice of the utterer.
Salop.” Both the prisoners having been convicted, the case was referred to the consideration of the twelve Judges. Some of the Judges were of opinion, that the fact of finding the forged instrument in the county, in which also it appeared that the forger himself was, was evidence, in the absence of other proof, of the fact of the forgery having been there committed. But the majority of them, though they agreed that it was a question of evidence for the jury, were of opinion that there was no proof to warrant the conclusion that the forgery was committed by Parkes in Middlesex, where it was laid : for they thought that the bare fact of the note being uttered in Middlesex by the other prisoner, taking him even to be an accomplice, was no evidence of the forgery itself
having been committed in that county. (a) Crocker's In a more recent case it is reported, as the opinion of a ma
jority of the Judges, that the finding a forged instrument in the The finding a jo forged note in custody of a person is no evidence that it was forged in the county the cnstody of where it was found. The prisoner, Benjamin Crocker, was in
dicted at Salisbury, in the county of Wilis, for the forgery of the evidence that it was forged note in question. From the evidence it appeared, that the priin the county soner had formerly lived at Winsham, in the county of Somerset,
was where he followed the employment of a farmer for many years. found; especially in a case About the month of June, 1804, he quitted his farm, and all his where from concerns at Winshain; at which place one William Tucker, in the circum
whose name the forged note purported to be signed, resided, and is a presump also carried on the farming business there, at the time of the trial. tion tbat it In November, 1804, the prisoner, having changed his name from was forged in
Crocker to Collins, went with his wife to Salisbury, where he another county.
took lodgings, and continued to live until about the middle of the month of May, 1805, when he left his wife at her apartments in Salisbury, and went to London. During his stay in London, he was apprehended there on another charge ; in consequence of which, his lodgings at Salisbury were searched, in the presence of his wife; he being still in London; and in a bureau belonging to the prisoner was found a pocket-book, in the inside of which was written his name, B. Crocker, in his own hand-writing; and in
(2) See the statute Addend, to the 2 Leach 775. 2 East. P. C. c. 19. s. 49. First Volume.
p. 963, and s. 61. p. 992. Ante, 391. (a) Rex v. Parkes and Brown, 1796.
in is not
where it was
one of the pockets of this pocket-book was found the note, set forth in the indictment, which was dated on the 7th March, 1803, and on which was an indorsement that a year's interest had been paid. It was objected upon this evidence that there was nothing to shew that any offence had been committed in the county of Wilts, the prisoner not having been in that county, but in Somersetshire, at the time when the note appeared to bear date; and the point was submitted to the consideration of the Judges. No opinion of the Judges upon the case was ever publicly delivered ; but the prisoner received a pardon, and was discharged; and it is said to have been understood, that a majority of the Judges thought there was not sufficient evidence that the offence was com. mitted in the county of Wilts. (b)
It was observed by the counsel who argued the last mentioned case, that in Elliott's case (c) the forged instrument was found upon the prisoner in Kent, where the indictment was laid ; but that no evidence was given to prove the actual fabrication of the instrument in that county; and, on the contrary, the circumstances of the case afforded some inference that the forgery was not committed there. It appeared, that one Ryland, having struck off a quantity of notes, delivered them, together with the plates, to the prisoner, at a public house in Fleet Ditch. The note in question was found upon the prisoner at Dover, and the plate at a lodging upon Tower-hill; yet the objection that the evidence did not afford proof of the offence being committed in Kent was either overlooked or thought of no weight. (d)
Where an indictment stated the forgery to have been com- Offence committed in the county of Nottingham, and it was proved to have mitted in the been committed in the county of the town of Nottingham, it was
county of a holden that, although under the 38 Geo. 3. c. 52. it was triable in the county at large, the offence should have been laid in the county of the town.(e)
In a late case, where the prisoner had been convicted at the assizes for the borough of Leicester, of forging a bill of exchange, a question was raised whether the evidence of forgery in Leicester
(6) Crocker's case, 1805. 2 Leach 988. 2 New Rep. 87, But qu. if the only point actually decided by the Judges in this case was not “ that an “incompetent witness had been ad“ mitted :" As to which point see post. 375.
(c) Ante, 342.
(d) In 6 Ev. Col. Stat. Pt. V. Cl. xii. the learned writer says, “ I remember “a case at Lancaster, in the year “ 1798, where a clerk of a mercantile “ house at Liverpool had stolen se** veral bills, and was afterwards ap. " prebended on board a sloop in the “ Downs, with a forged indorsement “ of the drawee on one of the bills; “ and Rooke, J., without any evi“dence to shew a greater probability “ of the forgery being committed in “ Lancashire than in any intermediate
“county, thought there was enough
(e) Rex v. Mellor and Another,
they wouined, and I was prandorsemeone witne Believed
was sufficient to sustain the verdict. The bill was dated at Leicester, June 1st, 1827, and purported to be drawn and indorsed by E. Addison, to his own order, on W. Rawson, for 401. at two months after date, and to be indorsed by Addison. Addison and Rawson both lived at Leicester, and Addison kept cash with Clark and Co. at that place. The bill was taken on the 5th June by one Porter to the bank of Clark and Co. with a request that they would discount it; but, the forgery being discovered, Porter was detained, and tried, and convicted at the same assizes for uttering the bill. It was proved that the whole of the bill—the date, body, signature, and indorsement were in the hand-writing of the prisoner. It was proved by one witness, that the father of the prisoner lived in Leicester, and that he believed the prisoner lived with him, having seen him there. Another witness proved that she saw the prisoner and Porter walking and talking together in a street in Leicester, about a week before the 5th of June. Another witness proved that she saw them pass her house together in another street in Leicester, in the course of a fortnight before the 5th of June. And it was proved by another witness that he saw them walking and talking together in another street in Leicester, a very short time before the same 5th of June, But none of the witnesses could fix the precise days to which they spoke. Lord Tenterden doubted whether there was such evidence of the forgery in Leicester as would justify him in leaving that point to the jury; but he left it to them, and the prisoner being found guilty, his Lordship respited the judgment, in order that the point might be submitted to the consideration of the Judges;
who held the conviction right. (f) Of the evi The evidence in forgery must support the material facts stated
in the indictment: and it is essentially necessary, that the proof should tally with the averment of the intent to defraud. (g) And we have seen, that the manner in which the fraud was carried or intended to be carried into effect is peculiarly matter of evi
dence. (h) Of the incom- In respect of the persons who may be witnesses in cases of petency of the forgery, it should be well observed, as an established point, that a party by whom narty by whom the instrument purports to be made is not ad. the instrument party py whom the instrument pu purports to be mitted to prove it forged, if, in case of its being genuine, he would made to prove either be liable to be sued upon it, or be deprived by it of a legal it forged.
claim against another. This is an exception to the general rules by which testimony in criminal cases is regulated, and has often been spoken of as an anomaly in the law of evidence : but it is now too well recognized to be disputed. Lord Ellenborough, C.J., in speaking of it said, “ Upon what principle that anomalous case “ was so settled, I cannot pretend to say; but having been so 6 settled, it may be too much for Judges sitting on trials to break “ in upon it. The anomaly can only be remedied now by the “ legislature." (0)
(f) Rex v. Corah, Leicester Sum.
(g) Ante, 366, 367.
Rex v. Boston, 4 East. 582. See the grounds of the anomaly discussed in 2 East. P. C. c. 19. s. 62. p. 993, and Phil. on Evid. 94.
Some of the cases in which the point has been decided may be briefly mentioned. On an information for the forgery of a deed, purporting to be the revocation of a will, it was adjudged by the Barons of the Exchequer, after a conference with the Judges of the King's Bench, that no legatee named in the will, nor any person who is a loser by the deed, or who may receive any advantage from the verdict, can be a witness for the prosecution. (k) In a case where the name of a person was forged to a receipt, such person was holden to be an incompetent witness to disprove the hand-writing.(l) So where the indorsement of one Gardiner was forged upon a promissory note, made payable to him or order, it was holden that Gardiner could not be a witness to prove that the hand-writing was not his. (m) And where a person, having a bill of exchange in his possession, indorsed a receipt upon it in a fictitious name, the acceptor was hulden not to be a conipetent witness to prove the payment without a release from the indorsee.(n) So a person whose hand-writing was forged to a letter of attorney, to receive stock, was holden incompetent to disprove his handwriting. (0) And the like determination was made in the case of an assignee of a certificate to a navy bill, whose name was charged to have been forged to a receipt for the money. (P) It seems to be the prevailing opinion, that the incompetency of And it seems
be that such parsuch witness is not confined to the single point of falsifying the hand-writing, but that he is equally incompetent to prove any tent to prove other fact which contributes to the proof of the forgery; or, in any other fact
which is conother words, any fact conducive to the general conclusion.(7) An ducir executor of a person, whose proinissory note had been forged, was general conrejected as a witness to prove what the prisoner said to him when clusion, he tendered him the note for payment.(r) This subject was much discussed in a late case, where, on a prosecution for forging a promissory note, on which there was an indorsement in the prisoner's hand-writing of a year's interest having been paid, a question was made, whether the person by whom the note purported to be made might prove that he had never paid any interest on the note, as was pretended by the indorsement. The evidence was received at the trial, after proof of the fact of the forgery being first given ; but the point was reserved for the consideration of the twelve Judges, and it seems to have been generally understood that the majority of them considered the evidence inadmissible. (s) It is said that Lord Ellenborough, C.J., Macdonald, C. B., Lawrence, J., and Le Blanc, J., thought the witness admissible, because it had
(k) Watt's case, 3 Salk. 172, reported more fully in Hardr. 331. In Phil. on Evid. 94, note (1), the learned autbor observes, that in 4 Burr. 2254, Lord Mansfield says, that this, and other cases of the same kind, were “ not considered, or looked into.”
(1) Russel's case, O. B. 1737, 1 Leach 8. Reeves's case, 2 Leach 812.
(m) Caffy's case, 0, B. 1729. 2 East. P. C. c. 19. s. 63. p. 995.
(1) Taylor's case, O. B. 1779, I
(0) Rex v. Rhodes, 2 Str. 798.
(p) Thornton's case, O. B. 1791, 2 Leach 634.
(9) Phil. on Evid. 93.
(r) By Adams, B., in Rex v. Geo. Bunting, Thetford, March, 1767, 2 East. P. C. c. 19. s. 63. p. 996.
(8) Crocker's case, 1805, 2 New R. 87. 2 Leach 987. Russ. & Ry. 97. Phil. on Evid. 93,