§ 149. The writing altered. It has been held that if the writing was void on its face, such as a will signed by only one witness, or a bill of exchange without the required revenue stamp on it, the making of such a manifestly void instrument is not forgery. It is not every writing the false making of which would be forgery, though such a writing might be used to accomplish a fraud. If one should make an imitation of a soap wrapper and sell a spurious article in that wrapper as genuine, that would not be forgery, for no one supposes that the wrapper has any validity to create a right or liability. Even the signing of a man's name is not necessarily forgery, though done to commit a fraud. If one should put an article on the market as Fletcher's Castoria and forge the signature of Fletcher on the wrapper, as it appears on the genuine article commonly sold, that would not be a forgery, but an infringement of the maker's registered label and a species of unfair trade. But it is not necessary to the crime that the instrument forged shall be in writing, print will do as well. One who makes an imitation of a railway ticket for the purpose of passing it as genuine is guilty of forgery, though the whole be in print; for the ticket has a legal efficacy, as the foundation of a right to the ride mentioned in the ticket.

§ 150. The false making or altering. The gist of the crime of forgery is not that the writing speaks falsely, states what is not true, for that would be merely a lie in writing, which is no worse than a lie spoken. To be forgery it is necessary that the writing purports to be what it is not, to be the writing of one man when it is the writ

ing of another. It may be that the man whose writing it purports to be is dead or never existed; that is not material. One signing an assumed name to an obligation to acquire goods or money and avoid discovery of his identity and liability for them is guilty of forgery. One who signs his own name to procure money due on a note or check to another of the same name is purporting to sign the name of the other man and perhaps to be the other man, and it is no defense that he happens to have the same name. But one who claims authority to sign the name of another man, and so signs the other name by himself as agent is merely making a false statement of fact in writing, that he has authority to sign for the other man. That is not forgery. A book-keeper who makes a false entry in the books of his employer is not guilty of forgery merely by reason of the falsity of the entry. The writing is what it purports to be, an entry by the book-keeper; it is merely a false entry. But if one not authorized to do so makes an entry in the books to defraud, that is forgery; for the writing is not what it purports to be. The item entered may be a true and fair statement of an actual transaction and be a forgery nevertheless. If I make an entry in your books which purports to be your entry and may be used as evidence against you, as an admission against interest for example, that is a forgery if it is made to defraud.

§ 151. What is uttering a forgery. Uttering a forgery is a common law misdemeanor distinct from forgery. One may be guilty of uttering without forging or of forging without uttering. To constitute an uttering it is not neces

sary that the forged instrument should have been actually accepted and received as genuine by the party sought to be defrauded. A receipt may be uttered by merely exhibiting it to one of whom the utterer claims credit for it, though he refuses to part with the possession of it.

SECTION 9. OBTAINING BY FALSE TOKENS AND PRETENSES.

$152. What is a false token. Because the common law did not afford means to punish frauds other than cheating by false weights and measures, it was provided by statute, 33 Hen. VIII, c. 1, entitled "a bill against them that counterfeit letters or privy tokens to receive money or goods in other men's names," that they should be punished by imprisonment and corporal pains. Under this statute it was held that one was not guilty who obtained money by pretending that another sent him for it, or that the genuine note of another by him then offered was collectable, or by giving a check on a banker with whom he had no deposit, or the like, but that there must be something false and purporting to come from one not the bearer, and having in itself some private mark or sign, calculated to induce the belief that it is real, and thus to cause a person to whom it is delivered to part with his money or goods to the bearer or person delivering it.

§ 153. The statutes on obtaining by false pretenses. Because of the narrowness and insufficiency of the statute above mentioned, it was provided by another statute, 30 Geo. II, c. 24, on which all the American statutes are modeled, that "all persons who knowingly and designedly, by false pretense or pretenses, shall obtain from any

person or persons, money, goods, wares, or merchandise, with intent to cheat or defraud any person or persons of the same," shall be fined, imprisoned, whipped, put in the pillory, or transported, as the court shall think fit. The punishment in this country is fine and imprisonment.

§ 154. Pretense must procure and be false. If the statement made to procure the money or goods and intended to deceive turns out to be true, it is no crime though it was made fraudulently and accomplished the purpose intended. On the other hand, though the statement was false there is no crime unless the pretense did deceive and was the means of procuring the goods. If the goods were delivered before the false statement was made, fraudulent pretenses to obtain extension of credit, prevent interference with the use of the goods, or the like, do not come within the statutes. If the prosecutor knew at the time the statement was made that it was false, but delivered the goods to convict the accused, or for any other reason, the goods were not obtained by the false pretense, and so no crime. If the statement was false and fraudulent, intended to deceive and did deceive, it will not sustain a conviction unless it had a proximate influence on the prosecutor in parting with the goods; for example, if one should pretend that he had traveled in foreign countries, could speak seven languages, and was once a very rich man, these statements, though false and intended to deceive, could scarcely have a direct influence in obtaining credit. If the statement is equally within the knowledge of both parties, as that the prosecutor had borrowed the money of the accused, it has been held that

there is no ground for conviction, because the statutes were designed to protect men from frauds where they do not know the facts. A clear instance of this kind was the reversal of a conviction of a man for presenting his check at a bank where he knew he had no funds. If presenting the check for payment could be considered a false pretense that he had funds there, which may well be debated, for honest men often over-draw their accounts, it was a fact which the banker should know as well as he (56). It has been held that there can be no conviction unless the pretense is one likely to deceive one of ordinary understanding. But this doctrine has been generally and correctly repudiated; for the gullibility of the public is proverbial, and the very purpose of these statutes is to guard against such frauds as might be practiced upon the simpler members of society with impunity at the common law. Therefore one who has a package which he says is $2,000 of good money, which he is offering for sale for $200, is guilty of obtaining money by false pretenses if it turns out that the package he delivers has one good bill on the outside and the rest waste paper.

§ 155. What is a pretense. A criminal false pretense must be on a matter of fact, not of promise or opinion. If I borrow of you money on my promise to repay it at a certain time I am not liable to conviction of a crime though a jury might be convinced that I did not intend to pay when I borrowed. If I obtain money on a promise to use it so and so, my intention at the time, and subse

(56) Commonwealth v. Drew, 19 Pick. 179.