Having in his possession.]-Knowingly having in any place, whether belonging to or occupied by the offender or not, is included, and whether for the use or benefit of the offender or of another person. Section 5.

Instrument of housebreaking.]-Any instrument capable of being used as an implement of housebreaking and intended to be so used will be included. R. v. Oldham (1852), 2 Den. 472, 3 C. & K. 250, 21 L.J. (Eng.) 134. The possession of a crowbar or other implement of housebreaking by one of two persons acting in concert will be the possession of both. R. v. Thompson (1869), 11 Cox 362, 33 J.P. 791.

vious con

465. Every one who, after a previous conviction for any Punishment indictable offence, is convicted of an indictable offence specified after prein this Part for which the punishment on a first conviction is less than fourteen years' imprisonment is liable to fourteen years' imprisonment. 55-56 V., c. 29, s. 418.

Indictment.]—In any indictment for any indictable offence, committed after a previous conviction or convictions for any indictable, offence or offences or for any offence or offences (and for which a greater punishment may be inflicted on that account), it shall be sufficient, after charging the subsequent offence, to state that the offender was at a certain time and place, or at certain times and places, convicted of an indictable offence, or of an offence or offences, as the case may be, and to state the substance and effect only, omitting the formal part of the indictment and conviction, or of the summary conviction, as the case may be, for the previous offence, without otherwise describing the previous offence or offences. Section 851. Procedure where previous offence charged.]—See secs. 963, 964.

Punishment for second offence in cases not under Part VII.] See Code secs. 1053, 1055.

Forgery and Preparation Therefor.

viction.

466. Forgery is the making of a false document, knowing Definition. it to be false, with the intention that it shall in any way be used or acted upon as genuine, to the prejudice of any one whether within Canada or not, or that some person should be induced by the belief that it is genuine, to do or refrain from doing anything, whether within Canada or not.

2. Making a false document includes altering a genuine Making false document in any material part, or making any material addi- document. tion to it or adding to it any false date, attestation, seal or other thing which is material, or making any material alteration in it, either by erasure, obliteration, removal or otherwise.

3. Forgery is complete as soon as the document is made When with such knowledge and intent as aforesaid, though the forgery complete. offender may not have intended that any particular person should use or act upon it as genuine, or be induced, by the belief that it is genuine, to do or refrain from doing anything.

False docu

4. Forgery is complete although the false document may be ment may be incomplete, or may not purport to be such a document as would incomplete. be binding in law, if it be so made and is such as to indicate that it was intended to be acted on as genuine. 55-56 V., c. 29, s. 422.

False document.]-A "false document" means: (1) a document, the whole or some material part of which purports to be made by or on behalf of any person who did not make or authorize the making thereof, or which, though made by, or by the authority of, the person who purports to make it, is falsely dated as to time or place of making, where either is material or (2) a document, the whole or some material part of which purports to be made by or on behalf of some person who did not in fact exist, or (3) a document which is made in the name of an existing person, either by that person or by his authority, with the fraudulent intention that the document should pass as being made by some person, real or fictitious, other than the person who makes or authorizes it. Code sec. 335.

To constitute a false document it is not necessary that the fraudulent intention should appear on the face of the document, but it may be proved by external evidence. Code sec. 338.

A promissory note was drawn up and signed on January 1st, 1896, payable "twelve months after date." The payee, who drew the note, used an old form with the figures "188-" printed in the place for the date. When drawing the note, the payee added the figure "6" thus making the date read January 1st, 1886, instead of 1896. Some time after the issue of the note, the payee discovered the mistake and corrected it by writing a figure "9" over the last "8," without asking or obtaining the consent of the makers. Held, that this was not a "material alteration" within the meaning of "The Bills of Exchange Act, 1890," sec. 63, but being only the correction of an error, making the contract appear what it was originally intended to be, did not invalidate the note. McLaren v. Miller, 36 Can. Law Jour. 680.

The uttering of a false letter of introduction the signature to which is forged, is an indictable offence under Code secs. 466 and 467, if the person uttering same knows it to be a false document, and to have been made with intent that it should be acted upon as genuine to the prejudice of any one. The first sub-section of Code sec. 466 extends the definition of forgery to cases not included in former statutory definitions in Canada of that term, and which would not be forgery at common law. Re Abeel, 8 Can. Cr. Cas. 189, 7 O.L.R. 327.

The officer of a company who fraudulently signs in the company's name a dividend check nominally in favour of a firm of which he is a member but really for his own benefit and appropriates the proceeds for his own use upon his own endorsation of the firm name, when neither he nor his firm have any claim to the dividends, may properly be charged either with embezzlement of the money or with theft of the check. The officer would be guilty of forgery in fraudulently signing the check really for his own purposes but purporting to be a dividend check and drawn upon an account kept with the company's bankers from which only dividend payments could properly be made. R. v. Rowe (1903), 8 Can. Cr. Cas. 28.

Where the prisoner was indicted for forging a note for $500, having changed a note of which he was the maker from $500 to $2,500, it was held to be a forgery of a note for $500, though the only fraud committed was on the endorser. R. v. McNevin, 2 R.L. (Que.) 711.

Fraudulent intent.]-To forge is, in its general sense, to counterfeit, to falsify; though to convict the person who made the false instrument of a crime the intent to defraud must be made to appear. R. v. Dunlop (1857), 15 U.C.Q.B. 118.

Mr. Justice Stephen, in his third edition of his Digest of the Criminal Law, p. 285, defines forgery as the "making of a false document with intent to defraud." The making of a false document includes the alteration of it, for the alteration of a genuine instrument makes it a false instrument. R. v. Bail (1884), 7 Ont. R. 228.

To constitute the crime of forgery it is not necessary that the writing charged to be forged should be such as would be effectual if it were a true and genuine writing. R. v. Portis (1876), 40 U.C.Q.B. 214.

The counterfeiting of any writing with a fraudulent intent, whereby another may be prejudiced, is forgery at common law. 2 Russ. Cr. (4th ed.) 768; Ex parte Cadby (1886), 26 N.B.R. 452, 492; R. v. Stewart (1875), 25 U.C.C.P. 440; R. v. Ward (1727), 2 Ld. Raym. 1461.

The prisoner, with intent to defraud, wrote out a telegraph message purporting to be sent by one C. to D., authorizing the latter to furnish the prisoner with funds. This was left by a boy, as from the telegraph office, being written on paper having the heading and appearance of a telegraphic despatch. Afterwards on the same day prisoner called on D., who told him he had received a telegram from C.; prisoner said, "I thought so." Upon the faith of the document D. went with prisoner to the bank and endorsed a draft drawn by the prisoner on C. for $85, the proceeds of which were handed over to the prisoner. It was held that the counterfeiting of what purported to be only a copy of C.'s signature was a forgery. R. v. Stewart (1875), U.C.C.P. 440.

It is a forgery to fraudulently make a deed which purports to be something quite different from that which it really is, ex. gr., by antedating it for a fraudulent purpose, even though it is executed by the parties between whom it is expressed to be made. R. v. Ritson (1869), L.R. 1 C.C.R. 200. The execution of a deed by prisoner in the name of and representing himself to be another may be a forgery if done with intent to defraud, even though he had a power of attorney from such person, but fraudulently concealing the fact of his being only such attorney, and assuming to be the principal. R. v. A. I. Gould (1869), 20 U.C.C.P. 154.

Fictitious name.]—The result of the cases is, that where a fictitious name is assumed for the purposes of a fraud, the offence of forgery may be proved, but not where the credit is given solely to the person without any regard to the name, as in R. v. Martin (1880), 5 Q.B.D. 34, per Hagarty, C.J.O., in Re Murphy (1895), 2 Can. Cr. Cas. 578, 582; R. v. Whyte (1851), 5 Cox C.C. 290; R. v. Wardell (1862), 3 F. & F. 82.

Where a person passing under an assumed name falsely represents that he is in the employment of a certain firm, and that he is authorized to make a draft upon such firm, his signature in such assumed name to a draft upon the firm, and his fraudulent negotiation of it, constitute forgery, if the credit obtained in negotiating the bill was not personal to himself alone, without relation to his supposed employers, and if the false name, although that of a non-existent person, was assumed for the very purpose of perpetrating the fraud. Re M. B. Lazier (1899), 3 Can. Cr. Cas. 167 (Ont. C.A.).

In R. v. Dunn (1765), 1 Leach C.C. 68, the accused had represented herself to be the widow of John Wallace, a deceased seaman, and in that character applied to a prize agent for prize money due to him by the Government. She exhibited what purported to be the probated will of the deceased, and thereby induced the agent to advance money to her on a

promissory note, signed by her in the name of the supposed widow, for which advances the agent was to reimburse himself out of the prize money, when obtained. A conviction on a charge of forgery was confirmed on a case reserved. Nine of the ten judges in that case agreed to the following (Leach C.C. 68), as the rules governing the case:

(1) In all forgeries, the instrument supposed to be forged must be a false instrument in itself;

(2) If a person gives a note entirely as his own, his subscribing it by a fictitious name will not make it forgery, the credit being there wholly given to himself, without any regard to the name, or without any relation to a third person;

(3) An instrument which is uttered as the act and instrument of another, and in that light obtains a superior credit, when in truth it is not the act of the person represented, is strictly and properly a false instrument, for in that case the party deceived does not advance his money or accept the instrument upon the personal credit of the party producing it, but upon the name and character of the third person, whose situation and circumstances import a superior security for the debt; and therefore, if in truth it is not the instrument of that third person, whose name and situation induced the credit, it is certainly a false instrument, and the intention fraudulent to the party imposed upon by it, for he believed, when he accepted the security, that he had a remedy upon it against the third person in whose name it was given and on whom he relied when he advanced the money, but, this being false, he has no such remedy, and therefore is materially deceived;

(4) If an instrument be false in itself, and by its purporting to be the act of another a credit is obtained which would not otherwise have been given, it is forgery, though the name it is given in be really a non-entity;

(5) The case is very different if the person borrowing money upon his own note and assuming a fictitious name does so without any relation to a different person. In that case the whole credit is given to the party himself; the lender accepts the security as the security of that person only; he has no other remedy in view, but merely against the man he is dealing with, and the security is really and truly the instrument of the party whose act it purports to be, however subscribed by a fictitious name; he has, therefore, a remedy upon it against the person on whose credit he took it, and consequently is not substantially defrauded.

In R. v. Whyte (1851), 5 Cox C.C. 290, the prisoner had purchased goods of a warehouseman and represented that he was in business with one Whiffen, under the firm name of Whiffen & Co. Several bills for goods so purchased were met, but finally Whyte desired the warehouseman to draw on the firm for a certain bill of goods. This was done, and the bill was accepted by him in the name of the pretended firm. Talfourd, J., there said: "I think it will scarcely be sufficient to shew that the name of Whiffen was assumed for the purpose of fraud generally; it must have been taken for the specific object of passing off this bill; the carrying on business in the false name might be for the purpose of creating a false impression with a view to obtain credit. That might support a charge of obtaining money or goods by false pretences, but not a charge of forgery."

To sustain a conviction, it should appear either that the prisoner had not gone by the fictitious name before the signing, or that he had assumed the name for the purpose of committing the fraud. R. v. Bontien (1813), Rus. & Ry. 260; R. v. Peacock (1814), ibid. 278; R. v. Lockett (1772), 1 Leach C.C. 94: R. v. Sheppard (1781), 1 Leach C.C. 226; R. v. Francis (1811), Russ. & Ry. 209.

In a recent Georgia case a person who, in an assumed name, made a

draft on another whom he falsely claimed to be his father, was held guilty of forgery. Lascelles v. The State, 90 Ga. 347.

Filling in check signed in blank.]—If a check is given to a person with a certain authority, the agent is confined strictly within the limits of that authority, and if he choose to alter it, the crime of forgery is committed.. If a blank check be delivered to him with a limited authority to complete it, and he fill it up with an amount different from the one he was directed to insert, and if, after the authority was at end, he fill it up with any amount whatever, that too would be clearly forgery. R. v. Bateman (1845), 1 Cox C.C. 186; R. v. Hart (1836), 7 C. & P. 652, 1 Moody C.C. 486; R. v. Wilson (1847), 1 Den. C.C. 284.

Filling in the body of a blank check to which a signature is attached, without any authority,, is a forgery. The prisoners were indicted for uttering a forged check, and it appeared that one Townsend was in the habit of signing blank checks and leaving them with his clerk when business called him away from home; one of these checks fell into the hands of the prisoners, who filled up the bank with the words "one hundred pounds," and dated it; it was objected that the signature being genuine, it could not be said that the prisoner had uttered a forged instrument; but Bailey, J., held that it was a forgery of the check. By filling in the body and dating it, it was made a perfect instrument, which it previously was not, and although it was not in point of fact made entirely by the prisoners, yet it had been held that the doing that which is necessary to make an imperfect instrument a perfect one, is a forgery of the whole. The learned judge was also of opinion that if the bankers had paid the check they might have recovered the amount from the prosecutor, as he was in the habit of leaving blank checks out, with his name written at the bottom. Wright's Case, 1 Lewin C.C. 135.

No ratification.]-Though fraud or breach of trust may be ratified, forgery cannot be. La Banque Jacques Cartier v. La Banque d'Epargne, 13 App. Cas. 118; Burton v. L. & N. W. Ry. Co., 6 L.T. Rep. 70; Merchants Bank of Canada v. Lucas (1890), 18 Can. S.C.R. 704, affirming 15 Ont. App. 572, which reversed that of the Divisional Court, 13 O.R. 520.

Forgery at common law.]-At common law the offence of forgery was punishable as a misdemeanour. It is defined by Sir W. Blackstone as "the fraudulent making or altering of a writing to the prejudice of another man's right." 4 Com. 247. And by Mr. East, as "a false making, a making malo animo, of any written instrument for the purpose of fraud and deceit." 2 East P.C. 852. Forgery consists not in making a deed which has a false statement in it, but in making an instrument appear to be what it is not. Per Blackburn, J., in R. v. Ritson, L.R. 1 C.C.R. 200, 39 L.J.M.C. 10: Ex parte Windsor, 34 L.J.M.C. 163.

Though doubts were formerly entertained on the subject, it is now clear that forging any document, with a fraudulent intent, and whereby another person may be prejudiced, is within the rule. Thus, after much debate, it was held that forging an order for the delivery of goods was a misdemeanour at common law. R. v. Ward. Str. 747, 2 Ld. Raym. 1461. And the same was held by a majority of the judges, with regard to a document purporting to be a discharge from a creditor to a gaoler, directing him to discharge a prisoner in his custody. R. v. Fawcett. 2 East P.C. 862. R. v. Ward is considered by Mr. East to have settled the rule, that the counterfeiting of any writing, with a fraudulent intent, whereby another may be prejudiced, is forgery at common law. 2 East P.C. 861.

Where the prisoner caused wrappers to be printed similar to those of another tradesman, and sold in them a composition called "Borwick's Baking Powder," but caused the signature and the notification that without