Forgery, in general, the illegal falsification or counterfeiting of a writing. Although this offence is the subject of a great variety of cases in England and the United States, the definitions do not Quite agree. That, given in East's Pleas of the Crown (vol. ii., p. 852) is:A false making of any written instrument for the purpose of fraud and deceit.'1 This definition, he says, results from a comparison of all the authorities. But by making we must understand also addition, subtraction, or other material alteration, which indeed East himself admits; and by instrument, some paper or document which is intended to have and apparently may have some efficacy in law as the foundation of legal right or liability. A better definition is that in Bishop's "Criminal Law," vol. ii., sec. 432: Forgery is the false making, or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy in the foundation of a legal liability." For it is not every falsification of writing winch constitutes forgery in a legal sense.
If one writes letters and signs them with the name of another, which may be very injurious not only to the feelings of some other party but to his interests, he is not in law a forger, if no pecuniary rights, obligations, or engagements are or are intended to be directly affected by this falsehood. The falsification need not be of a name, nor of the whole of an instrument. It is forgery if it relate to a single word, or even to a part of a word, as a letter, whereby the legal operation of it is materially changed; nor do we know why the same rule should not include a change only in the punctuation. Forgery may consist in the application of a false name to a true instrument, or of a true name to a false instrument, or even of a genuine name to a genuine instrument, if the name thus appended gives rights or imposes liabilities which the party appending it had no right to give or impose, and he appended the name falsely for the purpose of fraud and deception. If one employed to draw a will at the dictation of the testator, wrote it all as dictated, excepting that he inserted one or more legacies without direction, or one or more material provisions of any kind, and then, presenting the will to the testator as written agreeably to his direction, thus obtained his signature, it has been held that this is a forgery.
To constitute the forgery of a name, it must be the name of some person actually existing, or represented as actually existing; and if a name be written which belongs to a living man, but with an addition or description which corresponds to none that exists and prevents the name from attaching or belonging to any one, this is said not to be a forgery. The instru-ment need not be such that if genuine it would be certainly valid in law; but it must purport and appear on the face of it to have legal validity and efficacy; thus, in England, one maybe convicted for the forgery of an unstamped note, although such a note could not be enforced any more than blank paper. It is said, however, that the falsification of an instrument which if genuine would be wholly illegal, that is, not merely void, but prohibited and itself an offence, is not forgery.When one forged the will of a living person, and, falsely representing him to be dead, obtained the money, this was held to be forgery; and when one falsely and fraudulently appended to a will the name of a person who never had existed, this was also held to be forgery.-At common law, the publication or uttering of the forged instrument, or, in common phraseology, the making of any use of it, is not necessary to constitute forgery; thus, a man was convicted of forgery of a note, which he had made with fraudulent intent, but still retained in his pocket.
In the United States, however, the statutes generally make the uttering or using the forged instrument essential to the offence; but the uttering is complete if an attempt is made to use the fraudulent instrument as intended, though the forgery be detected in season to defeat the fraud designed. It may be well to remark that it is a well settled rule of law, that while an intent to deceive and defraud is an essential element of forgery, yet this intent is often conclusively presumed from the forgery itself; thus, if one forge a note, or any name upon a note, and cause it to be discounted, it is no defence whatever to the charge of forgery that he intended to pay the note himself, and had actually made adequate provision to take it up so that no person should be injured.-The crime of forgery was so easily committed, and detected with so much difficulty, and attended in some instances with such ruinous consequences, that it was not only a capital offence in England, but it was one of those offences for which it is very difficult to obtain a pardon.
But it is not now a capital offence in England or in any part of the United States.