CHAPTER XXIX. FORGERY, COUNTERFEITING AND FALSE PRETENSES. $419. Forgery-Definition and classi- $432. Counterfeiting - Elements 423. Evidence of similar crimes to show the intent--Effect of acquittal-Relevancy of possession of forged papers on charge of forgery. 424. Proof of uttering forged paper. 425. The writing alleged to have been forged as evidencePrimary evidence. 426. Proving the venue. 427. Fictitious names-Evidence to prove existence or non-existence of person. 428. Proving the corporate existence of the bank upon which the forged check is drawn. 429. Proving the handwriting-Expert evidence-Standards of comparison. 430. Evidence to show that the forged writing could not ac complish the purpose intended. 431. Sufficiency of evidence-Pecu niary condition of the accused. of the crime-Intent and guilty knowledge-Evidence of simi lar offenses. 433. Evidence to show that counterfeit money or implements for its manufacture were found in the possession of the accused. 434. Resemblance to the genuine. 435. False pretenses. 436. Evidence to show the intention of the owner. 437. The intent to defraud. 438. Evidence of other similar crimes not inadmissible when relevant to show the intent to defraud. 439. The pretenses made and evidence to show their falsity. 440. The pretenses must have been calculated to deceive. 441. The value of the property obtained. 442. Belief in the false representations. 443. Evidence of the pecuniary condition of the accused at the date of making the representations. 444. The false pretenses not necessarily verbal. 445. Proving the venue. $419. Forgery-Definition and classification.-Forgery at the common law is the fraudulent making or alteration of a writing 45-UNDERHILL CRIM. EV. (705) to the prejudice of another's right. It may be committed in any writing, which, if genuine, would operate as the foundation of another's liability or the evidence of his right. The following facts must be shown. First, that a false writing has been made. Second, that it was apparently capable of accomplishing a fraudulent purpose. And third, the fraudulent intent. A material alteration in a true document may under some circumstances be forgery. To constitute an alteration a forgery it must be proved that some material part of the instrument has been altered.* Whether an alteration is material or not is a question of law for the court. Generally, any alteration in an instrument which makes it speak a language which is different in its legal effect from that which it originally spoke or which creates some change in the rights, interests or obligations of the parties may be regarded as a material alteration." 5 1 State v. Thompson, 19 Iowa 299; McLean v. State, 3 Ga. App. 660, 60 S. E. 332; Goodman v. People, 228 Ill. 154, 81 N. E. 830. ? Mr. Bishop thus defines the crime: "Forgery is the false making, or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." 2 Bish. Cr. L. adopted as correct in Rembert v. State, 53 Ala. 467, 468, 25 Am. 639. Forgery is the fraudulent making of a false writing, which, if genuine, would apparently be of some legal efficacy; and the uttering, publishing, and putting off as true of the same, with intent to defraud, is the offense specified in Gen. St. 1894, § 6702. State v. Wills (Minn.), 73 N. W. 177. A fraudulent insertion of additional words, or an alteration in a material part of a true document by which another may be defrauded is a forgery. State v. Brett, 16 Mont. 360, 40 Pac. 873, 877; Commonwealth v. Boutwell, 129 Mass. 124, 125; Rex v. Dawson, I Stra. 19; State v. Flye, 26 Me. 312, 318; State v. Floyd, 5 Strobh. (S. Car.) 58, 53 Am. Dec. 689; State v. Weaver, 13 Ired. (N. Car.) 491, 493: State v. Maxwell, 47 Iowa 454, 455 ; State v. Marvels, 2 Harr. (Del.) 527; Haynes v. State, 15 Ohio St. 455, 457; State v. Van Auken, 98 Iowa 674, 68 N. W. 454; State v. Wills (Minn., 1897), 73 N. W. 177; Murphy v. State, 118 Ala. 137, 23 So. 719. 3 State v. Mitton, 36 Mont. 376, 92 Pac. 969; State v. Barrett, 121 La. 1058, 46 So. 1016; Fischl v. State, 54 Tex. Cr. 55, III S. W. 410; State v. Lotono, 62 W. Va. 310, 58 S. E. 621; People v. Collins, 9 Cal. App. 622, 99 Pac. 1109; State v. Floyd, 169 Ind. 136, 81 N. E. 1153. 'State v. Mitton, 36 Mont. 376, 92 Pac. 969. § 420. Competency of witnesses.-A subscribing witness or a person taking an acknowledgment to a forged instrument may testify that what purports to be his signature is forged.. In England at common law the person bound on the forged instrument, if not discharged from his liability was incompetent because of interest. If the instrument were genuine he would be liable thereon; while, if it were a forgery, the writing was forfeited to the crown and destroyed. This rule, though followed in a few early cases, is now universally rejected in America. The obligor is always competent for the state, and if he can be produced he is a proper witness and should be called by the state.10 His interest as obligor may be proved to affect the credibility of his evidence." He is not an indispensable witness. The falsity of the writing may be proved by other witnesses.12 § 421. Variance in proving the writing.-Any material variance between the alleged forged writing as proved and as set forth in the indictment is fatal when the writing is pleaded according to its tenor.13 The cases are strict in defining the diversity between determining its legal effect. State v. Lotono, 62 W. Va. 310, 58 S. E. 621. Presumptions and burden of proof in prosecution for forgery, see Elliott Evidence, § 2986, 2987. People v. Sharp, 53 Mich. 523, 19 N. W. 168. See Underhill on Ev., §§ 138-142. forged was absent from the state his partner may testify that the signature was not in the handwriting of the absentee. Washington v. State, 143 Ala. 62, 39 So. 388. Condonation by the obligor is irrelevant. State v. Tull, 119 Mo. 421, 24 S. W. 1010. 10 Simmons v. State, 7 Ohio 116. 2 Stark. Ev. 338, 339. See Elliott Cf. Anson v. People, 148 Ill. 494, 505, Evidence, 2989. V. 35 N. E. 145. "State v. Henderson, 29 W. Va. 147, I S. E. 225. V. 12 State v. Farrington, 90 Iowa 673. 57 N. W. 606; Commonwealth Smith, 6 S. & R. (Pa.) 568, 570; State v. Hooper, 2 Bailey (S. Car.) 37, 40; Hess v. State, 5 Ohio 5, 22 Am. Dec. 767n; 2 Stark. Ev. 585. See post, $429. 'Anson v. People, 148 Ill. 494, 505, 35 N. E. 145; State v. Bateman, 3 Ired. (N. Car.) 474, 479; People v. Howell, 4 Johns. (N. Y.) 296, 302; State v. Phelps, 11 Vt. 116, 122, 34 Am. Dec. 672; Commonwealth Waite, 5 Mass. 261; State v. Hooper, 2 Bailey (S. Car.) 37, 40; Simmons v. State, 7 Ohio 116; Williams v. State (Tex. Cr., 1895), 32 S. W. 532; Mackquire v. State, 91 Miss. 151, McGlasson v. State, 37 Tex. Cr. 620, 44 So. 802; State v. Handy, 20 Me. 40 S. W. 503, 66 Am. St. 842. Where 81, 83: Luttrell v. State, 85 Tenn. cne of a firm whose signature was 232, 239, I S. W. 886, 4 Am. St. 760; 13 the indictment and the writing as proved which shall constitute a material variance and which shall exclude the alleged forged instrument from evidence. 15 14 The misspelling, or the omission of a final letter from the alleged forged name as proved, or of a single figure from the amount, or reversing the order of names,1o are some extreme instances of material and fatal variance.17 But other cases permit a wider latitude in the proof and disregard unimportant discrepancies in names and dates, particularly if the names are idem sonans. An allegation of forging a writing is sustained by proving an instrument partly written and partly printed,1o and the fact that the instrument proved was acknowledged, while 18 Wilson v. State, 70 Miss. 595, 12 So. 332, 13 So. 225, 35 Am. St. 664; Haslip v. State, 10 Neb. 590, 592, 7 N. W. 331; Thomas v. State, 103 Ind. 419, 435, 2 N. E. 808; People v. Marion, 29 Mich. 31; State v. Carlson (Iowa, 1909), 123 N. W. 765. Though it is not necessary for the indictment to describe the writing with extreme minuteness, yet when so described strict proof must be had. Powell v. Commonwealth (Ky.), 9 S. W. 245, 10 Ky. L. 329; State v. Smith, 31 Mo. 120, 121; Hess v. State, 5 Ohio 5, 9, 22 Am. Dec. 767n; State v. Fleshman, 40 W. Va. 726, 22 S. E. 309; Commonwealth v. Wilson, 2 Gray (Mass.) 70, 71; McDonnell v. State, 58 Ark. 242, 24 S. W. 105. 14 Westbrook v. State, 23 Tex. App. 401, 403, 5 S. W. 248; McClellan v. State, 32 Ark. 609, 611; Hale v. State, 120 Ga. 183, 47 S. E. 531. 15 Burress V. Commonwealth, 27 Gratt. (Va.) 934, 944. 16 State v. Lane, 80 N. Car. 407; State v. Woodrow, 56 Kan. 217, 42 Pac. 714. 17 A note signed "J. C. Orr" will not sustain an allegation of forging one signed “James C. Orr." State v. Fay, 65 Mo. 490, 494. See State v. Pease, 74 Ind. 263, 264. 18 People v. Munroe (Cal., 1894), 33 Pac. 776; Bench v. State, 63 Ark. 488, 39 S. W. 360; Davis v. State, 37 Tex. Cr. 218, 39 S. W. 296; Agee v. State, 113 Ala. 52, 21 So. 207; Allgood v. State, 87 Ga. 668, 13 S. E. 569; Sutton v. Commonwealth, 97 Ky. 308, 30 S. W. 661, 17 Ky. L. 184; State v. Collins, 115 N. Car. 716, 20 S. E. 452; People v. Smith, 103 Cal. 563, 37 Pac. 516; Stewart v. State, 113 Ind. 505, 508, 16 N. E. 186; Trask v. People, 151 Ill. 523, 38 N. E. 248; Roush v. State, 34 Neb. 325, 51 N. W. 755; State v. Bibb, 68 Mo. 286, 288; State v. Gryder, 44 La. Ann. 962, 965, 11 So. 573, 32 Am. St. 358; Cross v. People, 47 Ill. 152, 95 Am. Dec. 474; Hennessy v. State, 23 Tex. App. 340, 354, 5 S. W. 215; State v. Lane, 80 N. Car. 407, 409; State v. Blanchard, 74 Iowa 628, 38 N. W. 519, 520; Langdale v. People, 100 Ill. 263, 268; Garmire v. State, 104 Ind. 444, 446, 4 N. E. 54; Lassiter v. State, 35 Tex. Cr. 540, 34 S. W. 751; Telfair v. State, 56 Fla. 104, 47 So. 863; People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. 50. 19 State v. Jones, 1 McMullen (S. Car.) 236, 243, 36 Am. Dec. 257. that alleged was not, is immaterial.20 The delivery of a writing containing blanks which are evidently intended to be filled creates an implied authority on the receiver to complete the instrument. This is a rule in the law of contracts but it does not apply to a prosecution for forgery where it appears that the instrument was complete when delivered and the filling of the blank was not only without the consent of the person who signed the instrument but was a material alteration of it.21 § 422. Fraudulent intent and guilty knowledge-Circumstantial evidence to show.-The intent of the accused to defraud is the essence of the crime and must be proved beyond a reasonable doubt.22 And if it is shown, evidence that the party whose name was forged had no legal capacity to sign is irrelevant.23 "People v. Baker, 100 Cal. 188, 190, 34 Pac. 649, 38 Am. St. 276; Lassiter v. State, 35 Tex. Cr. 540, 34 S. W. 751. The peculiar strictness required at the common law was largely the outcome of the severity of the punishment inflicted. In consequence of the more humane rules now in force, a wider latitude in variance would doubtless be allowed. Thomas v. State, 103 Ind. 419, 437, 2 N. E. 808. See also, Reg. v. Wilson, 2 C. & K. 527. An allegation of an intent to defraud several persons is sustained by proving an intent to defraud any one of them. McDonnell v. State, 58 Ark. 242, 24 S. W. 105. 337; Barfield v. State, 29 Ga. 127, 74 Am. Dec. 49; Leonard v. State, 29 Ohio St. 408; State v. Shelters, 51 Vt. 102, 105, 31 Am. 679; State v. Gavigan, 36 Kan. 322, 13 Pac. 554: State v. Redstrake, 39 N. J. L. 365, 369; State v. Williams, 66 Iowa 573, 24 N. W. 52; People v. Caton, 25 Mich. 388; Couch v. State, 28 Ga. 367, 368; Stephens v. State, 56 Ga. 604; Commonwealth v. Connolly, 11 Pa. Co. Ct. 414; Agee v. State, 113 Ala. 52, 21 So. 207; People v. Elphis, 72 Pac. 838, 139 Cal. XIX, not reported in full; Norton v. State, 129 Wis. 659, 109 N. W. 531, 116 Am. St. 979; Wells v. Territory (Okla. Cr. App., 1908), 98 Pac. 483; Elliott "State v. Mitton, 37 Mont. 366, 96 Evidence, § 2990; Feeney v. State Pac. 926, 127 Am. St. 732. People v. Corrigan, 129 App. Div. (N. Y.) 75, 113 N. Y. S. 513; Montgomery v. State, 12 Tex. App. 323, 330; People v. Wiman, 148 N. Y. 29, 42 N. E. 408; Snell v. State, 2 Humph. (Tenn.) 347; Commonwealth v. Ladd, 15 Mass. 526, 529; People v. Stearns, 21 Wend. (N. Y.) 409; Fox v. People, 95 Ill. 71, 75; Elsey v. State, 47 Ark. 572, 2 S. W. (Tex. Cr. App., 1910), 124 S. W. 944. One who, with intent to defraud, utters a promissory note as the note of a person other than the signer and procures to it the name of an innocent person who does not thereby intend it to bind himself, is guilty of forgery. "When that intent exists, and the instrument is the fruit of it, the author of the fraud cannot escape the charge of |