People v. Caton

COOI/EY, J. The prisoner was convicted on an information, charging that he “ did utter and publish as true, a certain false, forged, and counterfeited instrument and writing for the payment of money, in the likeness and similitude of a mortgage” [391] of lands. It is objected that the information charges no offense; a mortgage not being among the instruments mentioned in the statute under which it is drawn. The statute (Comp. L. § 5808) provides that, “Every person who shall utter and publish as true, any false, forged, altered, or counterfeit record, deed, instrument, or other writing mentioned in the preceding section, knowing the same to be false,” etc., shall be punished, etc. It is not disputed that a mortgage, in the legal sense, is a deed, but it is insisted that in common parlance a distinction is taken between the two instruments; the term, deed, being applied to conveyances of land, which, in this state at least, a mortgage is not. And the argument is, that the word deed has been used in the statute in the 'sense in which it is commonly used and employed; or, at least, that the rules of strict construction applicable to criminal statutes would require us so to hold. We are not prepared to yield our assent to this argument. The statute employs a general term which covers instruments given for a great variety of purposes, and it gives no indication of an intent to confine its operation to deeds of lands; much less to that class of deeds of lands which convey the legal title. There is abundant reason to believe, on the other hand, that the- word is used in the broad legal sense in which it is understood at the common law; for, the purpose of the legislature has evidently been, to give, by the use of general words, such an enumeration of the instruments likely to be the subject of forgery as to embrace all the valuable writings, by the false making or altering of which innocent persons might be in danger of being defrauded. The section preceding the one on which the information is based, and to which it refers, enumerates a public record, certificate, return, or attestation of a public officer, any charter, deed, will, testament, bond or writing [392] obligatory, letter of attorney, policy of insurance, bill of lading, or discharge for money or other property, any acceptance of a bill of exchange, or endorsement, or assignment of a bill of exchange or promissory note for the payment of money, any' accountable receipt for money, goods, or other property. We cannot enlarge a criminal statute by construction; neither, where the evident purpose is, to make it so comprehensive, are we at liberty to restrict it. “ Any deed” will certainly include a deed of mortgage. It is also objected that there was no evidence of the uttering and publishing, to go to the jury. We think that, on the testimony of Mr. Elwood, the jury would have been warranted in finding that a negotiation for the sale of the mortgage was entered upon with him, and that the forged paper was put into his hands as a genuine instrument, ready for his acceptance as such, had he been prepared then, on behalf of the bank, to close the transaction. And these facts, if found, we think, would have constituted an uttering. To constitute an uttering, it is not necessary that the forged instrument should have been actually received as genuine by the party upon whom the attempt to defraud is made. To utter a thing, is to offer it, whether it be taken or not.—Jervis, Ch. J., Regina v. Welch, 2 Den. C. C., 78; S. C., 15 Jur., 136. It is to declare or assert, directly or indirectly, by words or actions, that it is good. — Tilghman, Ch. J., Commonwealth v. Searle, 2 Binn., 339. A receipt may be uttered by the mere exhibition of it to one with whom the party is claiming credit for it, though he refuses to part with the possession.—Regina v. Radford, 1 C. & K., 707. In People v. Rathbun, 21 Wend., 528, Cowen, J., says, “not only a sale or paying away a counterfeit note or endorsement, but obtaining credit on it in any form, as by leaving it in pledge, — Rex v. Birkett, Russ. & [393] R. C. C., 86, — or indeed offering it in dealing, though it be refused,—Rex v. Arscott, 6 C. & P., 408; Rex v. Shukard, Russ. & R. C. C., 200; Rex v. Palmer, 2 Leach, 978, —amount to an uttering and publishing.” There are no decisions detracting from the force of these. We do not think it an important circumstance that it may have been contemplated that the board would be consulted by Elwood before closing the negotiation. None of the other exceptions which were taken, seem to us to require special discussion. There was nothing apparent on the face of the mortgage which would invalidate it, and the rulings of the recorder were manifestly right. It should be certified to him as the opinion of this court that he should proceed to judgment. The other Justices concurred.