fraudulently cut, torn, or otherwise removed from any material, or any stamp which has been fraudulently mutilated, or any stamped material out of which any name, sum, date, or other matter or thing has been fraudulently erased or otherwise, either really or apparently, removed: R. S. C. c. 165, s. 17 (Amended.) 32-33 V. c. 49. 33-34 V. c. 58 (Imp.); or

(i) without lawful authority makes or counterfeits any mark or brand used by the Government of the United Kingdom of Great Britain and Ireland, the Government of Canada, or the Government of any province of Canada, or by any department or officer of any such Government for any purpose in connection with the service or business of such Government, or the impression of any such mark or brand, or sells or exposes for sale or has in his possession any goods having thereon a counterfeit of any such mark or brand knowing the same to be a counterfeit, or affixes any such mark or brand to any goods required by law to be marked or branded other than those to which such mark or brand was originally affixed.

Sub-section (h) is an extension of the repealed statute. Section 210, c. 32, R. S. C., as to counterfeiting customhouse brands, etc., is unrepealed.

As to indictment see s. 622.

See R. S. C. c. 35, s. 86, as to forgery of postal stamps. As to what constitutes a criminal possession see ante, s. 3. See R. v. Collicott, R. & R. 212, and R. v. Field, 1 Leach, 383, and general remarks on forgery. The words "with intent to defraud" are not necessary in the indictment since the statute does not contain them: R. v. Asplin, 12 Cox, 391.

It was held, in R. v. Ogden, 6 C. & P. 631, under a similar statute, that a fraudulent intent was not necessary, but in a case of R. v. Allday, 8 C. & P. 136, Lord Abinger ruled the contrary: "The Act of Parliament, he said, does not say that an intent to deceive or defraud is essential to constitute this offence, but it is a serious question whether a person doing this thing innocently, and intending to pay the stamp duty, is liable to be transported. I am of opinion, and I hope I shall not be found to be wrong, that to constitute this offence there must be a guilty mind. It is a maxim older than the law of England that a man is not guilty unless his mind be guilty."

Lord Abinger, in R. v. Page, 8 C. & P. 122, held, upon the same principle, that giving counterfeit coin in charity, knowing it to be such, is not criminal, though in the statute

there are no words with respect to defrauding. But this is overruled, as stated by Baron Alderson, in R. v. Ion, 2 Den. 475; and Greaves well remarks (on R. v. Page): "As every person is taken to intend the probable consequence of his act, and as the probable consequence of giving a piece of bad money to a beggar is that that beggar will pass it to some one else, and thereby defraud that person, quære, whether this case rests upon satisfactory grounds? In any case a party may not be defrauded by taking base coin, as he may pass it again, but still the probability is that he will be defrauded, and that is sufficient: 1 Russ. 126, note (z).

And are there not cases where a party, receiving a counterfeit coin or a false note, not only may not be defrauded but will certainly not be defrauded. As for example, suppose that during an election any one buys an elector's vote, and pays it with a forged bill,-is the uttering of this bill, with guilty knowledge, not criminal? Yet, the whole bargain is a nullity; the seller has no right to sell; the buyer has no right to buy; if he buys, and does not pay, the seller has no legal or equitable claim against him, though he may have fulfilled his part of the bargain. If the buyer does not pay he does not defraud the seller; he cannot defraud him, since he does not owe him anything; it, then, cannot be said that he defrauds him in giving him in payment a forged note. Why see in this a fraud, and no fraud in giving a counterfeit note, in charity, to a beggar ? Nothing is due to this beggar, and he is not defrauded of anything by receiving this forged bill, nor is that elector, who has sold his vote, defrauded of anything, since nothing was due to him; they are both deceived but not defrauded. In the general remarks on forgery, ante, an opinion was expressed that forgery would be better described as "a false making with the intent to defraud or deceive." When the statute makes no mention of the intention does it not make the act prohibited a crime in itself, apart from the intention? Of course, it is a maxim of law that "actus non facit reum

nisi mens sit rea or as said in other words, by Starkie, 1 Cr. Pl. 177, that, "to render a party criminally responsible, a vicious will must concur with a wrongful act." "But," continues Starkie, "though it be universally true, that a man cannot become a criminal unless his mind be in fault, it is not so general a rule that the guilty intention must be averred upon the face of the indictment." And then, for example, does not the man who forges a stamp, or, scienter, utters it, do wilfully an unlawful act? Does not the law say that this act, by itself, is criminal? Has parliament not the right to say: "The forging, false-making a stamp, or knowingly uttering it, is a felony, by itself, whether the person who does it means wrong, or whether he means right, or whether he means nothing at all?" And this is exactly what it has said with regard to stamps, the Great Seal, records of the courts of justice, etc. It has said of these: 'They shall be sacred, inviolable; you shall not deface them, imitate them, falsify, or alter them in any way or manner whatsoever, and if you do, you will be a felon." And to show that, as regards these documents, the intent to defraud was not to be a material element of the offence, it has expressly, in all the other clauses of the statute, where it did require this intent to make the act criminal, inserted the words "with intent to defraud," and left them out in these clauses. And no one would be prepared to say,. that the maxim, "la fin justifie les moyens," has found its introduction into the English criminal law; and that, for instance, a clerk of a court of justice is not guilty of a criminal act, if he alters a record, provided that the alteration is done with a good intent, and to put the record as he thinks it ought to be, and should, in fact, be. Is it not better to say that, in such cases, the guilty mind, the evil intent, the mens rea, consist in the wilful disobedience to a positive law, in the infraction of the enactments of the legislative authority? (From 2nd Edit.).

As to intention and "mens rea," see 2 Steph. Hist. 110, and cases under s. 14, p. 11 ante.

CRIM. LAW-34

"What the law says shall not be done, it becomes illegal to do, and is therefore the subject matter of an indictment, without the addition of any corrupt motives": R. v. Sainsbury, 4 T. R. 451.

The definition in s. 422 of this Code does not make an intent to defraud an ingredient of the offence: and, under it, one who buys a vote with a forged bank bill is undoubtedly guilty of forgery or of a criminal uttering: see R. v. 1 Cox, 250.

DESTROYING, ETC., REGISTERS.

436. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment, who

(a) unlawfully destroys, defaces or injures any register of births, baptisms, marriages, deaths or burials required or authorized by law to be kept in Canada, or any part thereof, or any copy of such register, or any part thereof required by law to be transmitted to any registrar or other officer; or

(b) unlawfully inserts in any such register, or any such copy thereof, any entry, known by him to be false, of any matter relating to any birth, baptism, marriage, death or burial, or erases from any such register or document any material part thereof. R. S. C. c. 165, ss. 43 & 44 (Amended). 24-25 V. c. 98, ss. 36 & 37 (Imp.).

See next section.

Indictment.

that A. B., on

at

un

lawfully did destroy, deface and injure a certain register of which said register was then and there kept as the

register of marriages of the parish of then and there in the lawful custody of

1 Den. 22; see R. v. Asplin, 12 Cox, 391; C. & K. 622.

FALSE EXTRACTS FROM REGISTERS.

and as such was

: R. v. Bowen, R. v. Mason, 2

437. Every one is guilty of an indictable offence and liable to ten years imprisonment, who

(a) being a person authorized or required by law to give any certified copy of any entry in any such register as in the last preceding section mentioned, certifies any writing to be a true copy or extract, knowing it to be false, or knowingly utters any such certificate;

(b) unlawfully and for any fraudulent purpose takes any such register or certified copy from its place of deposit or conceals it;

(c) being a person having the custody of any such register or certified copy, permits it to be so taken or concealed as aforesaid. R. S. C. c. 165, s. 44 (Amended). 24-25 V. c. 98, s. 37 (Imp.).

UTTERING FALSE CERTIFICATES.

438. Every one is guilty of an indictable offence and liable to seven years' imprisonment, who

(a) being by law required to certify that any entry has been made in any such register as in the two last preceding sections mentioned makes such certificate knowing that such entry has not been made; or

(b) being by law required to make a certificate or declaration concerning any particular required for the purpose of making entries in such register knowingly makes such certificate or declaration containing a falsehood; or

(c) being an officer having custody of the records of any court, or being the deputy of any such officer, wilfully utters a false copy or certificate of any record; or

(d) not being such officer or deputy fraudulently signs or certifies any copy or certificate of any record, or any copy of any certificate, as if he were such officer or deputy. R. S. C. c. 165, ss. 35 & 43 (Amended). 24-25 V. c. 98, ss. 28 & 36 (Imp.).

See R. v. Powner, 12 Cox, 235.

The words "wilfully appears only in s-s. (c), and "fraudulently" only in s-s. (d).

FORGING CERTIFICATES.

439. Every one is guilty of an indictable offence and liable to two years' imprisonment, who

(a) being an officer required or authorized by law to make or issue any certified copy of any document or of any extract from any document wilfully certifies, as a true copy of any document or of any extract from any such document, any writing which he knows to be untrue in any material particular; or

(b) not being such officer as aforesaid fraudulently signs or certifies any copy of any document, or of any extract from any document, as if he were such officer. R. S. C. c. 165, s. 35 (Amended). 24-25 V. c. 98, ss. 28 & 29 (Imp.).

FALSE ENTRIES IN PUBLIC REGISTERS.

440. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, with intent to defraud—

(a) makes any untrue entry or any alteration in any book of account kept by the Government of Canada, or of any province of Canada, or by any bank for any such Government, in which books are kept the accounts of the owners of any stock, annuity or other public fund transferable for the time being in any such books, or who, in any manner, wilfully falsifies any of the said books; or

(b) makes any transfer of any share or interest of or in any stock, annuity or public fund, transferable for the time being at any of the said banks, in the name of any person other than the owner of such share or interest. R. S. C. c. 165, s. 11 (Amended). 24-25 V. c. 98, s. 5 (Imp.).