It appeared that the prisoner was in the habit of putting off bad Delivery of notes through the agency of S. H., a female; and it being proved forged note to that she had given a 27. note at a shop, which note prisoner claimed an agent to to be his, he was found guilty; and on ca. res. a majority of the dispose of. judges were of opinion that the conviction was right on the count for disposing and putting away. R. v. Palmer, C. C. R. 72.

N. B. This was under 13 G. 2. c. 13. § 11., now repealed; but see 1 W. 4. c. 66. § 3.

Agreement for sale of forged

notes, and pointing out the person who is to deliver

them.

But where the prisoners, having agreed with A. to sell him some forged notes, met him by appointment, and pointed out to him a woman who would deliver him the notes, and from whom A. received them, but it did not appear that the prisoners were present at the delivery, it was held that the prisoners were only accessaries before the fact. R. v. Stewart and another, C. C. R. 365. Where it was proved that the prisoner delivered a forged note Delivery to to an agent for the purpose of passing it, which the agent en- agent, being an deavoured to do, the judges held that, assuming the agent knew accomplice. the note to be forged, the delivery of it to him by the prisoner was a disposing of it within the statute, and that the conviction was right. E. T. 1827, R. v. Giles, 1 R. & M. 166.

Semb. also, that if the agent was an innocent instrument, and Delivery to an employed as such, his act would be the act of the principal, for innocent agent which the principal might be convicted. Per Vaughan B., ib. 169. Where the prisoner left a forged bill, payable to himself or order, and not indorsed by him, in the hands of his landlady as a pledge for the payment of his bill, the judges held that, having been delivered for the purpose of obtaining credit, it was a guilty uttering. R. v. Birkett, C. C. R. 86.

was

But where, on a charge for uttering and publishing, it appeared that prisoner had delivered the notes to the innkeeper where he lodging, to take care of them for him, and to shew that he was a man of substance, the judges held the conviction wrong, and that it did not amount to an uttering, unless the note was used in some way to obtain money or credit upon it. R. v. Shuckard, C. C. R. 200.

III. Indictment and Evidence.

The rule was formerly well established with respect to the competency of witnesses in cases of forgery, that no one was allowed to give evidence for the prosecution who was interested, at the time of his examination, in setting aside the instrument alleged to be forged, if, in case of its being genuine, he would either be liable to be sued upon it, or be deprived by it of a legal claim against another; and he was also held to be equally incompetent to prove any other fact which contributed to establish the forgery. 2 East. P. C. 993. 1 Phill. Evid. 113. 2 Russ. 374.

Delivering a forged note by way of pledge

is an uttering.

Aliter, if it be

delivered for safe custody.

Old rule as to competence of witnesses whose

names are

forged.

support of the prosecution.

But, now, by 9 G. 4. c. 32. § 2., on any prosecution by indict- 9G.4. c. 32. s.2. ment or information, either at common law or by statute, against Rendering them any person for forging a deed, writing, instrument, or other matter competent in whatsoever, or for uttering or disposing of any deed, writing, instrument, or other matter whatsoever, knowing the same to have been forged, or for being accessary before or after the fact to any such offence, if the same be a felony, or for aiding, abetting, or counselling the commission of any such offence, if the same be a

Other evidence admissible to prove forgery than that of

the person

whose signature is forged.

S. P.

Bank prose cutions.

Comparison of hand-writing not allowed.

Evidence of persons of experience in

misdemeanor, no person shall be deemed to be an incompetent witness, in support of any such prosecution, by reason of any interest which such person may have or be supposed to have, in respect of such deed, writing, instrument, or other matter.

It is not, however, indispensable, that the party whose handwriting has been forged, should be the witness to prove the forgery.

In a prosecution for the forgery of a bank note, it was ruled, that the hand-writing of the cashier of the bank might be disproved by any other person who was acquainted with his hand-writing. Hughes's case, 2 East. P. C. 1002.

On points reserved from cases on bank prosecutions, it was resolved by the judges, that it was unnecessary to produce the signing clerk, to shew that he never signed the note, if the same is established by the evidence of persons acquainted with his hand-writing. C. C. R. 380.

It is an established rule of evidence, that hand-writing cannot be proved by comparing the paper in dispute with any other papers acknowledged to be genuine. Phill. Evid. 430. 2 Russ. 379.

Questions, however, have arisen, whether the evidence of persons of skill and experience, and whose business it was to inspect franks and detect forgeries at the post-office, was admissible to hand-writings. shew whether certain writings were in a natural or in an imitated hand. Goodtitle v. Braham, 4 T. R. 497. Cary v. Pitt, Peake's Evid. 85. Phil. Evid. 430. R. v. Cator, 4 Esp. 117.

Semb. that they are not evidence.

Upon an indictment for uttering a forged bank-note, knowing it to be forged, evidence may be given of other forged notes having been

uttered by the prisoner, in

order to shew

In the latest of the cases, where an inspector of franks of the post-office was not allowed to state his opinion whether the handwriting in question was a genuine signature or an imitation, on the trial of a feigned issue to try a question of forgery, the court of B. R. expressed doubts of the admissibility of the evidence, and refused to disturb the verdict, on the ground of its being rejected. Gurney v. Longlands, 5 B. & A. 330.

quo

In R. v. Wylie and another, at the O. B. Apr. 14. 1804, the prisoners were indicted for disposing of and putting away a forged bank-note for 1., knowing the same to be forged. In order to shew the knowledge of the prisoners that the note was forged, evidence was offered that the prisoners had passed other forged notes to other persons: And to this evidence the counsel for the prisoners objected, as being inadmissible; because, they said, upon indictments for burglary or robbery, previous offences were not allowed to be given in evidence to prove the animo; nor upon an indictment for uttering bad money; and they said that the prisoners ought to have had notice of the several utterings intended his guilty know- to have been proved against them. Lord Ellenborough C. J. said, ledge. that in R. v. Tattershall (tried at Lancaster, 1801, by Mr. J. Chambre) it was held by all the judges, that the jury might, from the conduct of the prisoner on one occasion, infer his knowledge on another. And he said, "I remember a case in which a person came to Manchester with a large parcel of forged notes; his whole demeanour afforded pregnant evidence of the mind and purpose for which he came; and a question was made, whether that evidence should be received; for it was said, that it would be trying the prisoner for other utterings. But if crimes do so intermix, the court must go through the detail. I remember a case where a man committed three burglaries in one night; he took a shirt at one

place, and left it at another; and they were all so connected that the court went through the history of the three burglaries. The more detached in point of time the previous utterings are, the less relation they will bear to that stated in the indictment. But in such case, the only question would be, whether the evidence was sufficient to warrant the inference of knowledge from such particular transactions? It would not make the evidence inadmissible. Such evidence may come out from these circumstances, as may leave no doubt that the prisoners must have known what sort of paper they were passing. Under the authority therefore of the decision which has already taken place, I think that it is competent for us to go into and receive evidence of another offence, and of the demeanour of the prisoners on other occasions, from which knowledge may be inferred."-Heath J. agreed, and said he remembered a case where several persons were tried for a conspiracy to raise wages, and evidence was received of circumstances amounting to substantive felonies, such circumstances being material to the point in issue.-Thomson B. agreed, and said, that as to uttering of bad money, the prosecutor could give evidence of another uttering on the same day, in order to prove the knowledge. The evidence was received, and the prisoners were found guilty. Wylie's case, 1 N. R. 92. 2 Leach, 983.

with an

Upon an indict

time before ut

the same manufacture, and

also of a number of others

Edward Ball was tried before Heath J. at Lewes Sum. Ass. 1807, ment for utteron an indictment, charging him in the first count with forging a bank of England promissory note for the payment of 5l., ing a forged bank note, intent to defraud the governor and company of the bank of knowing it to be England, and on another count for uttering the same, &c. The forged, evidence prisoner uttered the note in question on the 11th of June, 1807, is admissible of and there was circumstantial evidence of his having actually forged the prisoner it, which might induce an intelligent jury to find him guilty on the having some first count. The note was forged with a camel-hair pencil. The tered another company's notes are struck off a copper plate, and so are most of forged note of the forged notes that have been circulated. Evidence was then offered and admitted, that the prisoner had uttered another note forged in the same manner, by the same hand, and with the same materials, on the 20th of March, 1807, and that two ten-pound having been in notes, and thirteen one-pound notes of the same fabrication had circulation with been found on the files of the company, on the back of which the prisoner's there was the prisoner's hand-writing, which was evidence of their hand-writing having been in his possession, but it did not appear when the company received them. The prisoner was found guilty, but sentence was respited for the purpose of taking the opinion of the judges as to the admissibility of this evidence. On the 14th. November, 1807, all the judges (except Rooke J.) met, and the majority were of opinion that the evidence was admissible, subject to observation as to its weight, which would be more or less considerable according to the number of the other notes, the distance of time at which they were put off, and the situation in life of the prisoner, as to make it more or less probable that so many notes should pass through his hands in the course of business. Ball's case, C. C. R. 132. 1 Campb. 324. S. C.

In another case, where the prisoner was indicted for forging a promissory note (not a note of the bank of England), and also for uttering it, evidence was given that, in the same pocket-book belonging to the prisoner in which the forged note was found, on

VOL. III.

on the back.

Other forged note found in possession of

prisoner.

Evidence of guilty knowledge.

Judgment for forgery disqualifies as a witness

9 G. 4. c. 32. s. 3, 4.

Restoration of competency

after suffering the punishment. Intent to defraud.

Forged instrument, description of.

Not necessary to set out copy

or facsimile of forged instru

ment.

Purport, its meaning.

which the indictment proceeded, there was also found another promissory note for 100/., payable to the prisoner's order, appearing to be signed by one Wm. Gapper, which Wm. Gapper proved not to be his hand-writing, and that he never owed the prisoner 100l. This evidence of Gapper's note was objected to by the prisoner's counsel, but admitted; and on reference to the judges, a majority were of opinion that Gapper (a) was not a competent witness. The prisoner was pardoned. Crocker's case, Salisbury Sum. Ass. 1805, cor. Le Blanc, J., 2 N. R. 87. 2 Russ. 373. 375. 385. & n. ibid.

Where it appeared that the prisoner, who was charged with knowingly uttering a forged promissory note of which he was payee, stated at time of uttering it, that the drawer (W. H.) was a respectable man, keeping a public-house at T.; it was held, on ca. res., that W. H. having been called to shew that it was not his note, it lay on the prisoner to disprove the forgery, or his guilty knowledge of it. E. T. 1830, R. v. Hampton, I R. & M. 255. 1

It was formerly a consequence of the judgment for forgery, that the defendant was rendered incapable of being a witness, as having been convicted of a crimen falsi, until restored to competency by the king's pardon. 2 Russ. 385.

But now, by 9 G. 4. c. 32. §§ 3, 4., after any conviction for felony or misdemeanor (except perjury and the subornation of perjury), the offender having endured the punishment to which he has been adjudged, shall no longer be an incompetent witness in any court or proceeding, civil or criminal.

The intent to defraud and the party to be defrauded must be stated in the indictment; and the proof must agree with such allegation. But it need not state the manner in which the party is to be defrauded; for that is matter of evidence. R. v. Powell, 2 Blac. Rep. 787. 2 East's P. C. 976. 1 Leach, 77.

Stat. 7 G. 2. c. 22. was confined to those cases where the forgery was committed with intent to defraud individuals, and not corporate bodies. R. v. Harrison, O. B. 1777, 2 East's P. C. 988.; and therefore stat. 18 G. 3. c. 18. was passed to remedy this defect. (b) It was formerly necessary to set forth in the indictment the instrument forged, in words and figures. R. v. Mason, 2 East's P. C. 975.

By 2 & 3 W. 4. c. 123. § 3., in order to prevent justice from being defeated by clerical or verbal inaccuracies, it is enacted, that in all informations or indictments for forging or in any manner uttering any instrument or writing, it shall not be necessary to set forth any copy or fac simile thereof; but it shall be sufficient to describe the same in such manner as would sustain an indictment for stealing the same.

The following decisions have taken place as to variances between the instrument or writing as described by averment in the indictment, and the evidence produced in support of it.

The word purport imports what appears on the face of the instrument; and, therefore, if it be stated in the indictment that the instrument purports to be so and so, and the instrument when set forth does not accord with what it is said to purport, it is bad.

(a) It does not appear that the judges gave any opinion that G. was incompetent as a witness; it is said that it was understood that they thought so: there were, however, several other objections taken to the conviction. 2 Russ. 385. n.

(b) Now repealed, but see § 28. of 1 W. 4. c. 66.

In Jones's case, in 1779, the instrument was described to be a paper writing purporting to be a bank note; but the court were of opinion, that as it did not purport on the face of it to be a bank note, the indictment could not be supported; and that this defect could not be supplied by the representations made by the party when he passed off the note. Jones's case, Dougl. 300. 2 East's P. C. 883.

So in J. Reading's case, 1793, where the indictment charged that S. P. the prisoner being possessed of a bill of exchange, purporting to be directed to J. King, by the name, &c. of J. Ring, forged the ac ceptance of the said J. King, judgment was arrested, because the bill did not purport to be drawn on J. King, as stated in the indictment. And Buller J., in delivering the opinion of the judges at the O. B., observed, that the indictment, as drawn, was absurd and repugnant in itself; for the name and description of one person or thing could not purport to be another. Reading's case, O. B., Sept. 1793, 2 Leach, 590. 2 East's P. C. 981.

66

a

Again, in Gillchrist's case, the indictment was for forging paper writing, purporting to be an order for payment of money, dated, &c. with the name of Thos. Exon thereunto subscribed, purporting to have been signed by Thos. Exon, clerk, and to be directed to George Lord Kinnaird, Wm. Moreland, and Thomas Hammersley, of, &c. bankers and partners, by the name and description of Messrs. Ransom, Moreland, and Hammersley, for the payment of the sum of 10l., &c.;" the tenor of which said false writing, &c. is as follows; viz. "Messrs. Ransom, Moreland, and Hammersley, please to pay to Mr. Brooks, or bearer, the sum of ten pounds for Thos. Exon; Sept. 11th, 1794;" with intent to defraud the said George Lord Kinnaird, &c. A motion was made in arrest of judgment; and upon a conference with the judges in Easter term, 1795, it was resolved by ten judges present, that the judgment should be arrested, because the word purport imports what appears on the instrument itself. It means the apparent and not the legal import; and that this bill of exchange could not purport to be directed to Lord Kinnaird, because his name did not appear on the face of the bill. Gillchrist's case, O. B. 1795, 2 East's P.C. 982. 2 Leach, 657.

And these determinations have been acted upon in various subsequent cases.

Purport is the apparent and not the legal

word or letter.

A merely literal variance is not fatal; as in Hart's case, where Variance of a the word was written in the indictment "received," and it was "reicevd" in the bill of exchange itself. 2 East's P. C. 977.

So where the prisoner was indicted for uttering a bill of exchange directed to Messrs. Masterman, Peters, and Co., with a forged indorsement thereon; and it was objected that there was a variance in the indictment, which imported to set out the bill according to its tenor, inasmuch as the letter r in Messrs. was omitted, and the abbreviation Messs. might stand for words which Messrs. could not; the objection was overruled, and the judges, upon the point being referred to them, held the indictment sufficient. Oldfield's case, Durham Sum. Ass. 1811, cor. Bayley J., MS. 2 Russ. 360. But, if by addition, omission, or alteration, the word is so changed as to become another word, the variance will be fatal. 2 Russ. 360. R. v. Beach, 1 Cowp. 229. Reg. v. Drake, Salk. 661.