34 F. 649 | U.S. Circuit Court for the District of Southern New York | 1888
Lacombe, J.
1. The first point raised by the relator is that the theater ticket which is the subject of the charge was wholly printed, and not written. Counsel cites from Bl'ackstone, Bishop, Best, and Russell definitions of the crime of forgery at common law, which describe it as the false making, etc., of a writing or a written instrument. It was elementary law, however, long before Blackstone’s day, that printing is waiting in the legal sense of the term, and an instrument, the words of which arc printed either wholly or in part, is equally valid with an instrument written by a pen. Signature by impression from a stamp wras no doubt infrequent when its use by Mr. Crawford, secretary of the treasury, was 'approved, but the necessities, of modern business have made it a common practice, and of its validity under the common law there can be no doubt. Vide law dictionaries of Burrill and Abbott under word “writing;” 2 Bl. *653Comm. 297; 1 Op. Atty. Gen. 670; Saunderson v. Jackson, 3 Esp. 180; Same v. Same, 2 Bos. & P. 238; Clason v. Bailey, 14 Johns. 490; Henshaw v. Foster, 9 Pick. 312; and cases cited on the argument.
2. The relator next contends that forgery fit common law cannot bo predicated of such a ticket as this because it did not contain a conlracl. There was no consideration expressed in it, nor did it contain any promise. The very definitions, however, which he cites under his first point speak of the written instrument as one which, “if genuine, might apparently be of legal efficacy, or the foundation of a legal liability,” or “by which another may be prejudiced.” It is not necessary that the subject of forgery be shown to be a complete executory contract expressing a consideration. Instruments of evidence by which a contract is proved may be forged just as -well as the contract itself if wholly expressed in writing. See opinion of -Judge Brown, in this circuit, in Re Tully, 20 Fed. Rep. 812. There is a line of authorities, many of which are cited by the relator, which hold that where the forged instrument purports to be a contract, and is void on its face, it is not the subject of forgery. Thus, in King v. Jones, 1 Leach, 204, the bogus bank-note was void on its face. It would not have been a bank-note if genuine, and no outside testimony could have made it such. In Me Milch ell, Post. Or. Law, 119, the forged order was held not to be an order within the terms of the special statute under which the prisoner was indicted. Here, as relator contends the case must be decided by the rules of the common law. In Rex v. Pateman, Russ. & R. 455, the bogus instrument was unsigned, and therefore, if genuine, did not purport to be a promissory note. In King v. Moffatt, 1 Leach, 431, the bill of exchange, if real, would not have been valid because it failed to comply with statutory requirements. No evidence could make it valid. In Queen v. Closs, 1 Dears. & B. Cr. Cas. 460, the court merely held that a picture was not a document or writing. In Re Windsor, 10 Cox, Crim. Cas. 121, the prisoner was discharged because the false entries which he made did not purport to be made by another. In People v. Savage, 5 N. Y. Crim. Rep. 543, whore defendant was charged with forging and altering a pawn ticket, the conviction ivas reversed because the district attorney and the court were apparently satisfied with the soundness of the contention of prisoner’s counsel that by the Penal Code of New York, under which the trial was had, the definition of forgery is much narrower than at common law. In People v. Martin, 36 Hun, 462, tire railroad bonds wore unsigned, and the same was the case in Cunningham v. People, 4 Hun, 457. In People v. Fitch, 1 Wend. 198, the prisoner altered the date of an order drawn by him, accepted, paid, and theretofore returned him. In People v. Wilson, 6 Johns. 320, the bank-note being for less than one dollar, its circulation was forbidden by statute. In People v. Harrison, 8 Barb. 560, the acknowledgment was defective on its face. In People v. Mann, 75 N. Y. 484, the prisoner, a county treasurer, signed his own name to the obligation. Conviction was reversed because the instrument did not purport to be the act of another. It was false assumption of authority, not forgery. It i«, moreover, well settled by authority that where the *654forged instrument is not void on its face, but only incomplete or uncertain, extrinsic evidence may be introduced showing its validity. Such an incomplete instrument may be the subject of forgery. There is nothing upon the face of these tickets which proclaims them void. They are in the usual form of such instruments which do not ordinarily contain the expression of a consideration, or a distinct agreement expressed in words to admit the holder. None the less the holders of them, if genuine, would find them of legal efficacy if, the performance being given, they were arbitrarily refused admission, and came into court to enforce their rights. In addition to the numerous authorities in s'upport of these propositions cited in the complainant’s brief it will be sufficient to refer to People v. Stearns, 21 Wend. 409; Com. v. Ayer, 3 Cush. 151; McCrea v. Marsh, 12 Gray, 211; Drew v. Peer, 93 Pa. St. 234; Wood v. Leadbitter, 13 Mees. & W. 838; Tayler v. Waters, 7 Taunt. 374; Burton v. Scherpf, 1 Allen, 133; Magoverning v. Staples, 7 Lans. 145.
3. The relator contends that the documentary evidence submitted was not accompanied by a certificate of the principal diplomatic or consular officer of the United States resident in Mexico, stating clearly that it is properly and legally authenticated, so as to entitle it to be received in evidence in support of the same criminal charge by the tribunals of Mexico. The certificates are undoubtedly defective, but Judge Blatchford, in Re Fowler, 18 Blatchf. 437, 4 Fed. Rep. 303, held that authentication may be made by oral proof given here. See, also, In re McPhun, 30 Fed. Rep. 57; In re Wadge, 15 Fed. Rep. 364, 16 Fed. Rep. 332. The evidence in support of the certificates in this case, which was given by the witness Alas, was, under the rules laid down in these cases, competent and sufficient.
