CHAPTER XIV.

OF FALSE CONSPIRACY.

CONSPIRACY to fix a false charge upon an individual, and expose him not only to the disgrace and patrimonial injury, but the risk of trial and punishment consequent upon its commission, is one of the most diabolical species of offences, and has long been visited with condign punishment by our common law.

1. It is an indictable offence at common law, to conspire to fix an unjust imputation of a crime on any of the lieges.

One of the earliest recorded cases on this subject is the noted one of Nicol Muschet and James Campbell, March 31. 1721. The species facti here was, that Campbell, having agreed for a sum of money to obtain false affidavits or testimony to the adultery of his wife, so as to enable him to procure a divorce, by the foulest contrivances, got the woman's person into his possession, and there stupified her and laid her in bed, where he put a man into bed with her, and introduced witnesses into the room, for the purpose of seeing him in the act of having connexion with her. These witnesses were not privy to the fraud, and deponed only to what they actually saw; but under the name of false conspiracy and machination, the offence was prosecuted at common law, and Campbell was found guilty, and transported for life. The libel in that case bore, as its major proposition, "The contriving or executing of wicked projects, deceitful and false machinations, for loading of innocent persons with heinous crimes, in order to sub.. ject them to the severest punishments."'

Another case of the same complexion was that of Elliot, Nicolson, and Campbell, January 1. 1694. It here appeared that 1 Hume, i, 170.

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Daniel Nicolson, a writer in Edinburgh, was engaged in an adulterous intercourse with Marion Maxwell; and, in order to carry it on more fully, they resolved to get quit of Jean Sands, Nicol son's wife. For this purpose, having failed in a design to dispatch her by poison, they resolved to fix on Mrs Nicolson, and her sister Margaret Sands, the atrocious crime of attempting to poison Nicolson. For this purpose Nicolson waited on the Lord Advocate, and laid an account of what he pretended he had discovered before him, and Elliot, a druggist, having been sent for, confirmed the story. The Lord Advocate ordered Elliot to furnish the poison, and take a receipt for it if it could be obtained; and they soon after called on him with such a receipt, which was in truth forged. Warrant was immediately issued for the apprehension of Mrs Nicolson and her sister; but, after they had been apprehended, one thing came out after another, chiefly in consequence of the previous bad character and notorious intercourse of Nicolson and Maxwell, and the result was, that they were themselves apprehended along with Elliot, on a charge of conspiracy, forging and using the receipt, and Nicolson and Maxwell with notour adultery. Elliot was found guilty of forging the receipt, and of conspiracy, and Nicolson and Maxwell of uttering the forged document, conspiracy and notour adultery, and all three were executed. The conspiracy to fix the intent to poison on Jean Sands, jointly with furnishing it, was found relevant to infer death, independent of the forgery or uttering; but this is not a precedent to be now relied on for that extreme pain, however good for the highest arbitrary punishment.1

In the case of J. Watson, Aberdeen, autumn 1819, an offence of this description was the subject of conviction and punishment in modern times. This person, along with another associate, had entered into a conspiracy for the purpose of fixing a charge of housebreaking upon an innocent party. Their design had very nearly succeeded, as they got the articles, intended to be charged as stolen, brought into the house of their victim, and placed there in the most suspicious circumstances, which led to her apprehension on a charge of having committed the crime; but one of the party having turned King's evidence, the conspiracy was discovered, and they were brought to trial, convicted, and sentenced to seven years' transportation.2

1 Hume, i. 171.2 Unreported.

CHAPTER XV.

OF FORGERY, AND UTTERING FORGED INSTRUMENTS.

THE crime of Forgery and Uttering Forged Instruments, as it is one of the most dangerous crimes which can be committed, so it is one whose frequency is continually on the increase with the progress of wealth, and the increase of commercial transactions. Its prosecution and punishment, therefore, constitute an important part in every system of criminal jurisprudence.

Forgery is the fabrication of false and obligatory writs, to the prejudice of another, with intent to defraud; and it is completed by uttering or putting it in circulation. The first point to be considered is the species of writing which constitutes the crime; the second the act necessary to its being put in circulation.

1. It is not essential to the crime of forgery that the writing of the person forged on should be correctly imitated, or his name properly spelt, or his Christian name correctly given it is sufficient if a signed writing is used which has been forged, which was intended to pass for his signature, and might by ordinary persons be mistaken for a genuine instrument,

The most ordinary species of capital falsification is the felonious making and publishing of a writing, as the signed instrument of the person who has not signed it. In such cases the usual course of proceeding is to imitate the handwriting of the person whose name is forged; and, in such a case, it is no defence to the pannel that he has proceeded in the most awkward or clumsy manner, or misspelt the name, or omitted part of the person's subscription.1 A blunder of this kind occurred 1 Hume, i. 141; Burnett, 180.

in the case of Mary Nisbet, 1726, who, in forging a name of the Duchess of Gordon, who was not a Peeress in her own right, had omitted the Christian name; so that the subscription forged was not that which the Duchess used; notwithstanding which the charge of forgery was sustained, as it was obviously intended for her. The same objection was repelled in the case of Davidson, 21st September 1791, by Lord Hailes, when the accepter's name to a bill was misspelt; and this matter was fully argued in the case of Richard Myndham, 17th July 1800. It there appeared that the notes charged as forged were not a correct imitation of the real notes; the real notes being those of Surtees, Burdon and Co., while the forgery was that of Sentees, Bendon and Co.; so that both the names in the firm of the forged notes were different from those of the firm on which the forgery was set forth as having been committed. The Court repelled the objection, upon the ground that wherever an imitation is meant, and a false subscription made with that view, it is a forgery, though the name be wrong spelt, or a wrong christian name be added; and that it is a question for the jury whether the party really intended to be forged on is the one set forth in the indictment.2 The same objection was repeated at Glasgow in the case of Scott and Adamson, April 1805, and in like manner repelled. More lately, in the noted case of Malcolm Gillespie, Aberdeen, September 1827, the indictment contained several charges, in which a wrong Christian name was inserted for the persons forged on: in particular, "William Leith, Moss-side, Auchlea," instead of the true name "James Leith, Moss-side, Auchlea," and " Alexander Johnston, farmer and miller, Milltown Harrow," instead of "John Johnston, farmer and miller there ;" and, in order to bring out the question, it was set forth in the indictment that these words were used by mistake for the true names which were mentioned; but Lords Alloway and Pitmilly, without hesitation, found the libel relevant, and the pannel was convicted and executed.1

The principle of the English law on this point, and which appears in itself reasonable, is, that the false instrument should carry on its face the semblance of that for which it is counterfeited; but that it is not necessary that the resemblance to the Unreported on

I Hume, i. 141; Burnett, 180.-2 Burnett, 181.3 Ibid. this point.

known instrument should be exact: it is sufficient if the instruments be so far alike, that persons, in general, using their ordinary observation upon the subject, may be imposed upon by the deception, though it would not impose upon a person particularly acquainted with them. Thus where a prisoner was indicted for the forgery of bank-notes, and a Bank of England clerk said he could not have been deceived by the forgery, it was held that as the forgery was such as would impose upon ordinary persons, it was complete. Again, a conviction for the forgery of a bank-note was held to be good, although, in the forged note, the word "pounds" was omitted, and there was no water-mark in the paper. On the same principle it was held, that engraving a counterfeit stamp like part of a real stamp, but unlike in others, and then cutting out the unlike parts, and concealing the part cut out, is forgery.1 Justice Grose there laid it down, "An exact resemblance, or fac simile, is not required to constitute the crime of forgery; for if there be a sufficient resemblance to shew that a false making was intended, and that the false stamp was made so as to have an aptitude to deceive, that is sufficient." A mere literal mistake will make no difference, as Desimockex for Desormeaux.5 Nay, a forgery may be committed of a will, though it is wrong in the Christian name of the person, whose will it purports to be; as where a will was forged, bearing the signature"John Perry, his mark," though it began with the words, "I Peter Perry,” and Peter was the man's real name. But, where the forged instrument has no resemblance to the true one, or is illegal in its very frame, the case is not considered as forgery. Thus where a bill of exchange was directed to John Ring, and the acceptance was by John King; and the indictment set forth, that the prisoner had forged the acceptance in the name of John King, judgment was arrested, because Ring could not purport to be King.8

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2. It is not indispensable to forgery, that the writing forged be an imitation of the handwriting of another; the crime is complete if a signed instrument is put in cir

1 East. ii. 858; Russell, ii. 342.-2 Hoost's Case, East. ii. 950.-3 Elliot's Case, Russell, ii. 342.-4 Collicot's Case, Russell, ii. 343; Leach, ii. 1048.5 Clinch's Case, Leach, i. 540; Russell, ii. 344.—6 Fitzgerald's Case, Leach, ii. 344.—7 Russell, ii. 345. Reading's Case, Russell, ii. 346.