Arnold v. Cost , 3 G. & J. 219 ( 1831 )

Buchanan, Ch. J.,

delivered the opinion of the court.

It is unnecessary, and would be a waste of time, to enter upon an inquiry into the grounds of the doubts, that at one time seem to have been entertained, in relation to what instruments were, and what were not, susceptible of the crime of forgery at common law. The difficulties that surrounded the question of forgery or not, have been removed by decisions of acknowledged authority; and it is not now held to be essential to the offence of forgery in any one case, that some one must have been injured. The inquiry is not whether any one has been actually injured, but whether any one might have been prejudiced. In Ward’s case, 2d Ld. Ray. 1461, which was an information for forging an order to charge certain goods to account, and to appropriate part of the proceeds to the defendant’s own use, with intent to defraud, &e.; the subject was fully considered. It did not appear, that the person in whose name the order was drawn, had received any prejudice; but it was held to be immaterial to the offence of forgery, whether any person had been actually prejudiced or not, provided any person might have been injured by it; and that the counterfeiting of any writing, with a fraudulent intent, whereby another may be prejudiced, is forgery at common law—2d East’s Cro. Law, 854, 860, 161, 862. Russell on Crimes, 351, 352. In 2d Chitty’s Crim, Law, 780, 1022, forgery is defined to be, “The false making, or alteration of such writings, as either at common law, or by statute, are its objects, with intent to defraud anotherin Coogan’s case, 2d East’s Cro. Law, 853, by Justice Butter, “ the making of a false instrument with intent to deceive,” and in 2d East’s Cro. Law, 852''“the false making of any written instrument, for the purpose of fraud, and deceit,” as resulting from all the authorities, ancient and modern, taken together. Chitty, in his treatise on Criminal Law, 2d vol. 781, 1022, considers it as settled by Ward’s case, that “forgery at common law might be committed in respect of any writing whatever, by which another might be defrauded;” and in 781, 1023, speaking of Ward’s case, and the case of Fawcet, to be found in 2d East’s Pis. Cro. 862, he says: “Every kind of writing seems, on the doctrine of those. cás.es, to be a thing, in respect of which, forgery at common law may be committed.” Hence, it would seem to be settled, that the question, whether a particular instrument is capable of supporting a charge for forgery, is referable not to the form, but to the substance of it, and to be determined alone by that criterion; the chief ingredients of that... offence being fraud, and an intention to deceive; to which the principle on which the case of the People vs. Shall, 9 Cowen, 778, cited in behalf of the appellant was decided, is not opposed. The court there, having gone on the ground that the instrument on the face of the indictment appeared to be one, which, if genuine, would, have been void ; and therefore, an instrument, by which no one could have been prejudiced. Applying then as a test, the principle established in the cases of Ward and Fawcett, and recognized and adopted by the elementary writers to this, and assuming the position laid down in 3d Term. Rep. 176, and 2d Chitty’s Crim. Law, 796, 1036, “that it is not necessary to constitute forgery, that there should be an intent to defraud any particular person, but that a general intent to defraud will suffice:” is the instrument in question, a forgery at common law? whiphis answered by the solution of another question; could airy person have been prejudiced by it? of which’ there can, we think, be no doubt.

The appellant, who was the owner of the negro man to whom that paper was given, might have been prejudiced by the absconding of his servant, whose escape it might have facilitated. It was calculated to deceive and impose upon most who might see it, and there were few, if any, by whom he was unknown, who would not, on the production of it,have suffered him to proceed. Who can doubt that such a paper, put in the hands of a negro, and purporting to b$* signed by one or more respectable men known in the com-, munity, would be his sufficient passport, by means of whicb^ he would be able to effect his escape from the service of hi^ owner ? And Johnson also, whose name is subscribed to that paper, might have been prejudiced ; for, if it had been genuine, that, is, if he had written it, and given it to the appellant’s negro, who had thereby effected his escape, it is perfectly clear, that he would not only have been liable to, an action for damages by the owner, but also to a criminal prosecution under the act of 1796, ch. 67, sec. 19, according to the case of Duvall vs. the State, 6 Harr. and Johns. 9; “which act provides against the depriving an owner of Ahe services of his slave by any unlawful means; which the furnishing a slave with such a paper, by means whereof he escaped from the service of his owner, would be. “The false making,” therefore, of that instrument, by which Johnson and the appellant might have been so injuredj -was a forgery at common law, for which the defendant, if guilty, would have been punishable by indictment, though it. does not appear, that any body was actually injured thereby, which is not necessary to constitute forgery; and it is not like the case of a mere cheat, to constitute which, there must be a prejudice received: hence it follows, if this eoncise view of the subject be correct, that the words spoken by the appellant, as laid in the declaration, charging the defendant in error with having forged that instrument, are Actionable, and that the demurrer was properly overruled.

JUDGMENT AEÍTKMED.