Year: 1874

| though the statute referred to does not use tn


word Mortgage, there can be no doubt but tina


mortgage is a deed within the meaning o


the statute. The purpose of this statute is, Al


declared by the Supreme Court of California IL


constructing a similar statute, "To protect soci
/ ETY. against the fabrication, falsihcation, anC
| the uttering. publishing and passing of forged
| instruments, which If genuine, would establish


or defeat some claim, impose some duty, create


some liability, or work some prejudice 10 an


other in his rights of person or property.
| Forgery has been defined as the fraudulent


making or alteration Of a writing TO the preJu


dice of another mans rights. No uttering ol


passing of the forged instrument is necessary Ia


constitute the crime Of forgery. The crime Is


complete the instant the writing is made OF


altered with intent TO injure OF defraud. 1t was


urged upon the trial that the instrument set out


in the information, being in the ordinary form
of mortgages given TO secure the payment on


discharge Of some obligation, does not of itself


create'or purport to create any liability that


unaccompaned by note il is an imperfect in


strument and thai. standing alone, il cannot be
the subject OF forgery. II was cOntended that
the information should show that the note re-


ferred to in the mortgage actually existed,
whether genuine or forged. II is urged that


the "intent to inure and defraud," cannot be


presumed from the making of an incompleted


instrument. If this objection taken upon the


trial was valid, it is equally so now, notwith-
standing the defendant has given in evidence n


note which he claims the mortgage refers TO /;


for, the respondent must be tried upon the issue


presented by the information and his plea


thereto. The instrument set out in the infor-


nation is in due form Of law, and as such, is,


Pr'md Jdeie entitled to record is. pri0a Jocie


genuine This being so, it follows that if re-


corded il creates cloud upon the lands therein


described, whether note was ever executed


or not, and thereby works prejudice


To the rights Of another. And speaking of the


apparent validity and legal effect of this instru


mcnt, fully concur with the counsel for the
respondent "that the instrument offered in evi


dence, purporting 10 be mortgage dated June
2lst, 1873, by the prosecution, being duly au-
thenticated by the proper number OF witnesses
and the certificate Of Notary is in itself evi.
dence of the handwriting Of the grantor, Amos
Morris, and of the genuineness OF the instru.


ment and is evidence ofsuch weight as should
not be lightly disregarded by the jury" And
when | say these things are evidence Of the
handwriting OF Morris and of the genuineness
of the instrument, do not mean 10 be UNDER
stood a saying they are conclusive evidence,
but that unopposed by other evidence, these
facts would be sufficient TO establish their gen
uineness. The legal presumption being in iavor
OF innocence, the presumption, in the first in
stance, is, that the instrument and the sigma
ture thereto is genuine; and this presumption is
fortified and strengthened if it be made to ap.
pear from evidence in addition TO the legal pre-
sumption that the signatures Of the witnesses
and the certificate of acknowledgment are the
genuine work of the persons they purport to be.
Hence the presumption that the instrument is
genuine "a presumption made stronger by
proof OF the genuineness of signatures OF wit
nesses and NOtary-iS part of the evidence in
the case and it is the duty of the jury TO look
at all the rest of the evidence in the light of
such presumptions. And the burden of proof is
upon the prosecution to overcome these pre-
and if, taking all the testimony in
the case these presumptions are not overcome
to the satisfaction of the Jury. beyond rea-
sonable doubt, the respondent should he
acquitted.


I have been requested by counsel for the
respondent to instruct you that if the signature
to the certificate of acknowledgment attached
to the mortgage of June 2lst, is the genuine
signature of Jerome Coleman then you should
acquit the prisoner. I am also requested to in
struct you that you find the signatures Of the
witnesses to the mortgage sre the genuine sig
natures Of Newton Foster and Jerome Coleman,
then you should acquit the prisoner. When
these requests were handed to the Court / was
strongly impressed with the views of the coun-
sci for the respondent in rela ton to them, viz
that as the prosecution has, in the information,
charged the respondent with the forgery of the
therein set forth, which instrument
purports to have been made, signed, sealed,
execmed, acknow lodged and delivered by Amos
Morris to Milo ID. Matteson instead of charging
him only with the forgery of the signature Of
Morris, the information must be taken as
describing paper no part OF which is genuine,
or at least as describing o different paper from
the one which was forged, if indeed a forgery
was committed. A very slight examination of
these propositions, however, satisfies me that
they are incorrect, and that If the Jury should
find as indicated, it would not constitute a valid
defence. 1t is true that so far as the prosecu-
tor undertakes to describe forged instrument
he is bound to prove it as described. But it
lUes not follow that because he sets out the
precise language of the paper, he is bound to
prove that the respondent wrote the entire
instrument. In the absence of what purports to
be the signature of Morris, the instrument
would not be nor purport to be a deed; but
with the signature Of Morris, we may dispense
with the witnesses and the acknowled cement
and still the instrument would purport to be a
Iced. The witnessing and acknowledgment
ire not indispensable requisites. By statute
hey make the deed primd }dcie what il DUR
Ports to be, and nothing more. But it may be
urged that the information charges that Matte
,on forged Il paper that then had upon it the
names of witnesses and also certificate of
whereas, the proof tends TO
,how that the names of the witnesses Foster
and Coleman and the certificate of acknowledg-
nent were affixed after the name of Morris had
been subscribed to the paper; and hence if a |
forgery was committed il was ACCOMPLISHED bv |
signing Morris name to the msrtgage before il |
vas witnessed and before the certificate of |
was affixed. 1t is therefore
claimed that as the information sets out a |
paper that at the time of the forgery had upon |
{ n certificate of acknowledgements and the |
names Of witnesses, the respondent cannot I
properly be convicted for forging paper that |
lid not when forged (if forged at ail) have upon |
{ the names of witnesses and certificate of /
lclIno wedgment. Now if as matter of fact
he signature of Morris was forged IL follows
hat though the names of Coleman and Foster
appear as witnesses, they are not, in fact such.
The witnessing of paper consists not merely
n the act of writing the witness name but in
aking cognizance Of the fact that the maker
igns, seals and delivers the instrument in the
presence and view of the witness. lf this be


lot done, if the maker do not sign, and deliver
he instrument in the presence of the witness,
hen that which purports TO be witnessing is


ot such but is n fasehood--is not genuine.
md so with the certificate of acknowledgment.
the maker named in the instrument do not in !
Ict acknowledge il; then that which purports
! he an acknowledgements. is lot such, and in