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indictable offence; thus, at common law, a man who obtains money by a mere naked lie, is not criminally (b), though he may be civilly responsible; whether particular circumstances constitute an indictable fraud, is a question of law; and therefore, according to a fundamental rule of description in indictments, such circumstances must be set out, in order to shew that the facts amount to an indictable offence. Hence, an indictment for cheating, at common law, cannot be maintained, unless some specific false token be alleged to have been used (c).
And under the stat. 33 H. 8. against obtaining money by false tokens, it is necessary to specify the particular tokens (d), for the statute is confined to tokens and letters, in the name of a third person (e).
So, under the statute against obtaining money by false pretences (f), it is necessary to describe the false pretences, because some false pretences are not within the statute (g).
So, in all cases of forgery, it is necessary to set out the forged instrument, that it may judicially appear, that the crime of forgery has been committed, either as an offence at common law, or under the definition of some particular statute.
Next, it is to be considered, how far it is necessary to particularize, in describing the means of effecting a fraud. And first, it may be observed, that if some means be specified, and by those the fraud could have been effected, no objection can be taken on the ground that the description is not sufficiently circumstantial.
(b) R. v. Lara, 6 T. R. 565.
s. 1. R. v. James, Cald. 558.
(f) 30 G. 2. c. 24.
(g) 2 Burr. 1127. Mason's case, Leach, 548. R. v. Munor, 2 Str. 1127. Leach, 720. 3d. ed.
In the case of the King v. Young and others, the indictment (h) stated that the defendants did falsely pretend to one Thomas, that Young had made a bet of 500 guineas, with a colonel in the army, then at Bath, that one Lewis would, on the next day, run on the high road, leading from Gloucester to Bristol, ten miles in an hour; and, that Young and Mullins (i) went each 200 guineas in the bet, and Randal (k) the other 100 guineas; and, that under colour of having made the same bet, they obtained from Thomas 20 guineas, as a part of such pretended bet. It was objected, upon writ of error, that the statement was too general, no person having been specified with whom the wager was laid; but the court held, that this objection was answered by the record. That if the indictment did not inform the defendants what charge they were called upon to answer, the objection would be well founded, but, that it held out to them sufficient intelligence of the offence imputed to them; that the court could not intend that the colonel's name was mentioned, and that the prosecutor could not state it with greater particularity than the defendants used.
And this is very analagous to the offence of obtaining money by extortion, in an indictment for which, it has been holden to be sufficient to charge a bailiff, with having extorted a particular sum of money, colore officii (l), without stating the particular threats or menaces; for, it was said he perhaps might claim it generally, as being due to him as bailiff, in which case, the taking could not have been otherwise expressed.
It is not necessary expressly to aver that the tokens,
(h) Leach, 568.
(i) One of the defendants.
(k) Anotber of the defend
(1) Sid. 91. 2. Haw. c. 25.
or pretences, were false (m). In Terry's case, the indictment alleged, that he, by a false note, in the name of J. D. obtained into his hands a wedge of silver, and it was holden to be good, though the token was not alleged to be false. So, in Airey's (n) case the indictment was holden to be good, although it did not expressly allege that the pretences were false, but, after setting them out, averred, that by means of the said false pretences, the defendant unlawfully obtained from J. B. 16s. with intent to cheat the said J. B. and then negatived the truth of the pretences. The court held, that no technical form or order of words was necessary to express the offence; and, that it was sufficient, if, upon the whole, it appeared that the money had been obtained by means of the pretence set forth, and that such pretence was false.
But it is necessary expressly to negative the truth of those pretences, by means of which the property was obtained, in order that the party may know what it is that he comes to defend (o).
In all these cases, the false tokens and pretences must be proved as laid. Where the indictment alleged the pretence to be that the defendant had paid a sum of money into the bank of England, and upon the trial it appeared that he had said that the money had been paid into the bank; the variance was held to be fatal, since a statement that the money had been paid into the bank, was very different from an assertion that it had been paid in by the defendant (p).
Where the fraud has been effected, or attempted to be
effected, by means of a written instrument, it must, with out exception, be set out upon the record, in order that the court may be judicially informed of its criminal nature; and the same principle extends to indictments for libels, and the sending of threatening letters (q).
It will next be considered, what precision is requisite in setting forth written instruments, of this nature, upon the face of the indictment.
The allegations, in an indictment for forgery, naturally distribute themselves under the following heads,
First. That the defendant did falsely make, alter, &c. Secondly. The particular instrument set forth. Thirdly. With the intent to defraud another.
First. It is sufficient to allege that the defendant forged and counterfeited, though it is usual to aver that he did falsely forge and counterfeit, for the adverb is sufficiently implied in the former words, (r). In Elsworth's (s) case, the indictment stated that the said T. E. the said bill of, exchange did feloniously alter, and cause to be altered, by falsely making, forging, and adding a cypher 0, to the letter and figure 87. in the said bill, and also by falsely making, forging, and adding the letter y to the word eight, in the bill mentioned, whereby, &c. The second count alleged, that certain persons unknown altered the bill, and charged the defendant with uttering and publishing the bill, as true, knowing it to be forged. The words of the statute, on which the indictment was founded, (2 G. 2. c. 25. s. 1.) are, “If any person shall falsely make, forge, or counterfeit." It was objected, in arrest of judgment, that the indictment merely charged that certain persons
(q) R. v. Lloyd, East. P. C. 1122. Leach, 720. 696. 3d. ed. (r) Sty. 12. 1 Str. 19. East, V. Mariot.
P. C. 985.
2 Lev. 221. R. v. Dawson, 1 Str. 19.
(s) Coram Willes, York, Lent Ass. 1780. East, P. C. 986.
unknown, did alter, by falsely making, &c. and did not charge, in the words of the act, that they falsely made, forged, &c. and that the word alter, was not used in the statute. But the judges held, that the indictment was good, and that there was no difference in substance, or in the nature of the charge, whether the indictment were for feloniously altering, by falsely making and forging, or for feloniously making and forging, by falsely altering. In the case of the King v. Bigg (t), the indictment alleged, that the defendant feloniously erased an indorsement from a bank note; the jury found that the defendant had expunged the inscription, by means of some unknown liquor, and the judges held that the prisoner was guilty (u).
In consideration of law, every alteration of an instrument amounts to a forgery of the whole.
In Dawson's case, it was holden, by ten judges, that the alteration of the figure 2, in a bank note, to 5, was a forging of a bank note (v).
And, an indictment (x) for making, forging, and counterfeiting a bill of exchange, under the st. 7 G. 2. c. 22. was holden to be supported by proof, that the defendant had altered a bill of exchange for the payment of 10%. into 50%. both in words and figures. It was objected, that the defendant ought to have been charged with altering the genuine bill, since the stat. 7 G. 2. c. 22. makes it a distinct offence to alter; but the judges, on the authority of Dawson's case, held that the conviction was proper, and that every alteration of a true instrument, for such a
(t) 3 P. Wms. 419. (u) The majority were of this opinion, but the case involved many other points, and the prisoner was afterwards pardoned,
on condition of transporting himself. Str. 19.
(v) East. P. C. 978.
(x) Teague's case, coram Le Blanc, Hereford Ass. 1802. East. P. C. 979.