or right of another. It is essential that the making or altering be false and be done with intent to deceive.3 § 517. Nature of the instrument. The document must possess at least apparent legal efficacy. It is not forgery to make or alter a void instrument. Hence it is not forgery to alter a will that is not signed. Any instrument which may be the basis of a suit against another can be the object of forgery at common law. Thus, deeds, wills, invoices,8 bank checks, money orders,10 deposit slips,11 receipts,12 records, 13 book entries,11 orders for the delivery of goods,15 railway and other tickets, 16 certificates of character, 17 affidavits, 18 acceptance of service and waiver of citation in petition 9 2 Jones v. State, 50 Ala. 161, 163; Moore v. Commonwealth, 92 Ky. 630, 18 S. W. 833; State v. Murphy, 17 R. I. 698, 24 Atl. 473, 16 L. R. A 550; State v. Gavigan, 36 Kans. 322, 13 Pac. 554, 556; State V. Wheeler, 20 Ore. 192, 25 Pac. 394, 10 L. R. A. 779, 23 Am. St. 119. 3 People v. Pfeiffer, 243 I11. 200, 90 N. E. 680, 26 L. R. A. (N. S.) 138, 17 Ann. Cas. 703; People v. Warner, 104 Mich. 337, 62 N. W. 405. 4 Commonwealth v. Baldwin, 11 Gray (Mass.) 197, 71 Am. Dec. 703, Derby's Cases 529; State v. Darrance, 86 Iowa 428, 53 N. W. 281, Derby's Cases 532; State v. Sisson, 270 Mo. 59, 192 S. W. 454 (trading stamps); State v. Walton, 107 S. Car. 353, 93 S. E. 5 (cotton ticket reciting sale and giving weights, held subject to forgery). 5 Dixon v. State, 81 Ala. 61, 1 So. 69; Wheeler v. State, 62 Tex. Cr. 370, 137 S. W. 124. 6 State v. Sharpless, 212 Mo. 176, 111 S. W. 69. 6 7 State v. Ready, 77 N. J. L. 329, 72 Atl. 445. 8 Ex parte Fischl, 51 Tex. Cr. 63, 100 S. W. 773. 9 State v. Coyle, 41 Wis. 267, 2 Am. Cr. Rep. 149. 10 Rose v. State, 80 Ark. 222, 96 S. W. 996. 11 State v. Jackson, 221 Mo. 478, 120 S. W. 66, 133 Am. St. 477. 12 Sims v. State, 155 Ala. 96, 46 So. 493. 13 State v. Tompkins, 71 Mo. 613. 14 Commonwealth v. Boutwell, 129 Mass. 124, Ann. Cas. 1914 C, 466. 15 People v. Rising, 207 N. Y. 195, 100 N. E. 694. 16 Roberts v. State, 92 Ga. 451, 17 S. E. 262. 17 Waterman v. People, 67 Ill. 91, 1 Am. Cr. Rep. 225; People v. Abeel, 182 N. Y. 415, 1 L. R. A. (N. S.) 730n. 18 State v. Hilton, 35 Kans. 338, 11 Pac. 164, 8 Am. Cr. Rep. 261; Territory v. Gutierrez, 13 N. Mex. 312, 78 Pac. 139, 5 L. R. A. (N. S.) for divorce, 19 chattel mortgages,20 indorsements on notes,21 subscription lists,22 seals of corporations,23 orders for credit,24 due bills,25 warrants on county treasury,26 and bills of lading,27 have been held capable of being forged. Making a false indorsement on an instrument is a forgery.28 On the other hand, agreements to pay for advertisements,20 applications for insurance policies,30 invalid affidavits31 and mere complimentary letters of introduction, 32 have been held not capable of being forged. § 518. Imitating another's trade-mark or label.-Whether to imitate another's trade-mark or label is forgery or not depends upon whether it can be made the basis of a suit against the imitator or not in an action for deceit or warranty. Thus, in an English case,33 where the proof showed that the defendant obtained from a printer ten thousand labels resembling those used on Borwick's baking and egg powders and put them on packages resembling Borwick's and sold many of them, the conviction of forgery was quashed by the higher court. The defendant was found guilty of fraud, but the fraud consisted in selling spurious powders as real ones. To constitute forgery the document itself must be the instru 19 State v. Stringfellow, 126 La. 720, 52 So. 1002. 20 People v. Cotton, 250 Ill. 338, 95 N. E. 283. 21 State v. Carragin, 210 Mo. 351, 109 S. W. 553, 16 L. R. A. (N. S.) 561n. 22 State v. Hazzard, 168 Ind. 163, 80 N. E. 149. 23 United States v. Andem, 158 Fed. 996. 24 Forcy v. State, 60 Tex. Cr. 206, 131 S. W. 585, 32 L. R. A. (N. S.) 327. 25 Rembert v. State, 53 Ala. 467, 25 Am. Rep. 639, 2 Am. Cr. Rep. 141. 26 Saucier v. State, 102 Miss. 647, 59 So. 858, Ann. Cas. 1915 A, 1044. 27 State v. Bierbauer, 111 Minn. 129, 126 N. W. 406; Fischl v. State, 54 Tex. Cr. 55, 111 S. W. 410. 26 Saucier v. State, 102 Miss. 647, 59 So. 858, Ann. Cas. 1915 A, 1044. 29 People v. Parker, 114 Mich. 442, 72 N. W. 250. 30 Commonwealth V. Dunleay, 157 Mass. 386, 32 N. E. 356. 31 Commonwealth V. Cochran, 143 Ky. 807, 137 S. W. 521. 32 Mitchell v. State, 56 Ga. 171. 33 Reg. v. Smith, 8 Cox Cr. C. 32, Dears. & B. Cr. C. 566, 27 L. J. M. C. (N. S.) 225, 4 Jur. (N. S.) 1003, 6 W. R. 495. ment of the fraud. As said by the court, "The fraud consists in putting inside the wrappers powder which is not genuine, and selling that. If the prisoner had had one hundred genuine wrappers and one hundred not genuine, and had put genuine powder in the spurious wrappers and spurious powder into the genuine wrappers, he would not have been guilty of forgery." § 519. Fraudulently assuming authority to sign another's name. It is not forgery for a person fraudulently to assume authority to sign another's name to a document. Where the defendant fraudulently represented that he was a member of "Schouler, Baldwin & Co." and assumed authority to sign this firm name to a promissory note which he gave in payment of his own overdue note, his conviction of forgery was set aside by the higher court.34 In this case the court states, "The writing alleged to be forged in the case at bar was the handwriting of the defendant, known to be such, and intended to be received as such. It binds the defendant. Its falsity consists in the implication that he was a partner of Schouler and authorized to bind him by his act. This, though a fraud, is not, we think, a forgery." And in another case where the defendant fraudulently assumed authority to indorse a bill of exchange "per procuration, Thomas Tomlinson, Emanuel White," the twelve judges were unanimously of the opinion that the offense was not forgery.35 § 520. Fraudulently obtaining another's signature to a document. It has been held that it is not forgery fraudulently to obtain another's signature to a document,36 where the defendant was convicted of forging a promissory note, 34 Commonwealth v. Baldwin, 11 Gray (Mass.) 197, 71 Am. Dec. 703. 35 Reg. v. White, 2 Cox Cr. C. 210, 2 Car. & K. 404, 1 Den. Cr. C. 208. 36 Commonwealth v. Sankey, 22 Pa. St. 390, 60 Am. Dec. 91. See also, People v. Pfeiffer, 243 I11. 200, 90 N. E. 680, 26 L. R. A. (N. S.) 138, 19 Ann. Cas. 703. and the proof showed that he induced an illiterate man to sign the note, payable to himself for one hundred forty-one dollars by fraudulently pretending that it was for only fortyone dollars. On appeal, the conviction was set aside. In the opinion, the court says: "Forgery is the fraudulent making or altering of a writing to the prejudice of another's right. The defendant was guilty of the fraud, but not of the making. The paper was made by the other person himself, in prejudice of his own right. To complete the offense, according to the definition, it requires a fraudulent intent and a making both. The latter is innocent without the former, and the former, if carried into effect without the latter, is merely a cheat." § 521. Fraudulently filling in blanks.-Where an agent is authorized by his principal to fill in the amount of a check signed by the latter in blank, and the agent fraudulently fills in a greater amount with intent to appropriate the excess, he is guilty of forgery.37 But an agent who has general authority to insert the amounts in checks signed in blank, who fraudulently fills in greater amounts than required and appropriates the excess, is guilty of embezzlement and not forgery 38 § 522. Fraudulently signing a false name.-Forgery is committed where a person, with intent to defraud another, signs a false name to a check or bill of exchange. In such case it is immaterial whether the name signed is fictitious or not. Thus, where the defendant was convicted of forging a bill of exchange, and the proof showed that he purchased goods of the prosecutor and presented in payment therefor a bill of exchange signed in the name of a fictitious person, 37 Rex v. Hart, 7 Car. & P. 652; People v. Dickie, 62 Hun (N. Y.) 400, 17 N. Y. S. 51; Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066, 28 Am. St. 926. 38 Reg. v. Richardson, 2 Fost. & F. 343; People v. Reinitz, 7 N. Y. Cr. 71, 6 N. Y. S. 672. the conviction was affirmed.39 Moreover, it is immaterial that the fictitious name signed is unnecessary. Thus, where the defendant was convicted of forging a bill of exchange, and the proof showed that he picked it out of the pocket of the owner and presented it at a bank for payment; that the clerk requested him to indorse it, which he did in the fictitious name of "John Williams"; that the clerk thereupon paid him the cash for it, the higher court affirmed the conviction.40 In this case the judges were unanimously of the opinion that . although the fictitious indorsement was unnecessary to get the money, yet the offense was forgery, since the owner thereby lost the opportunity of tracing his property and the bank its indorser. Again, where the defendant signed the fictitious name "John Williams" to a promissory note and thereby fraudulently secured a loan of eighty-five dollars and fifty cents, having previously offered to give a mortgage on a team of horses in his charge, his conviction for forgery was affirmed.41 § 523. Fraudulently signing name of a deceased person.Forgery is also committed where the name of a deceased person is signed to an instrument with intent to defraud. "It is contended, inasmuch as Hathaway was dead at the time his name was signed to the check, that therefore the making of the false instrument can not constitute the crime of forgery. The authorities do not sustain this position. On the other hand, so far as we have been able to ascertain, the contrary doctrine has been held to be the correct one, and adhered to wherever the question has been adjudicated."42 39 Rex v. Lockett, 2 East P. C. 940; Maloney v. State, 91 Ark. 485, 121 S. W. 728, 134 Am. St. 83, 18 Ann. Cas. 480; State v. Larson, 39 S. Dak. 120, 163 N. W. 566. 40 Rex v. Tuft, 1 Leach C. C. (3d ed.) 206. 41 State v. Wheeler, 20 Ore. 192, 25 Pac. 394, 10 L. R. A. 779n, 23 Am. St. 119. See also, People v. Campbell, 160 Mich. 108, 125 N. 42 Brewer v. State, 32 Tex. Cr. 74, 22 S. W. 41, 40 Am. St. 760. See also, Henderson v. State, 14 Tex. 503; Billings v. State, 107 Ind. 54, 6 N. E. 914, 57 Am. Rep. 77; 2 Bish. New Crim. L. (8th ed.), § 543n. |