The act of criminally making or altering a written instrument for the purpose of fraud or deceit; for example, signing another person's name to a check. To write payee's endorsement or signature on a check without the payee's permission or authority. The 'payee' of a check is the true owner or person to whom the check was payable.
Forgery at common law has been held to be 'the fraudulent making and alteration of a writing to the prejudice of another man's right.' A more modern writer defined it as, 'a false making; a making malo animo, of any written instrument, for the purpose of fraud and deceit.'
This offence at common law can of the degree of a misdemeanor or felony. There are many kinds of forgery, especially subjected to punishment by statutes enacted by the national and state legislatures.
The subject will be considered with reference to:
The making of a whole written instrument in the name of another with a fraudulent intent is undoubtedly a sufficient making but a fraudulent insertion, alteration or erasure, even of a letter, in any material part of the instrument, whereby a new operation is given to it, will amount to a forgery; and this, although it be afterwards executed by a person ignorant of the deceit.
The fraudulent application of a true signature to a false instrument for which it was not intended or vice versa, will also be a forgery. For example, it is forgery in an individual who is requested to draw a will for a sick person in a particular way, instead of doing so, to insert legacies of his own head and then procuring the signature of such sick person to be affixed to the paper without revealing to him the legacies thus fraudulently inserted.
It has even been intimated that a party who makes a copy of a receipt and adds to such copy material words not in the original and then offers it in evidence on the ground that the original has been lost, may be prosecuted for forgery.
It is a sufficient making where in the writing the party assumes the name and character of a person in existence. But the adoption of a false description and addition, where a false name is not assumed and there is no person answering the description, is not a forgery.
Making an instrument in a fictitious name or the name of a non-existing person, is equally a forgery as making it in the name of au existing person and although a man may make the instrument in his own name if he represent it as the instrument of another of the same name when in fact there is no such person, it will be a forgery in the name of a non-existing person but the correctness of this decision has been doubted.
Though in general, a party cannot be guilty of forgery by a mere non-feasance, yet if in drawing a will he should fraudulently omit a legacy which he had been directed to insert and by the omission of such bequest it would cause a material alteration in the limitation of a bequest to another; as where the omission of a devise of an estate for life to one, causes a devise of the same lands to another to pass a present estate which would otherwise have passed a remainder only, it would be a forgery.
It may be observed that the offence of forgery may be complete without a publication of the forged instrument.
With regard to the thing forged it may be observed that it has been holden to be forgery at common law fraudulently to falsify or falsely make records and other matters of a public nature a parish register a letter in the name of a magistrate, the governor of a gaol, directing the discharge of prisoner.
With regard to private writings it is forgery fraudulently to falsify or falsely to make a deed or will or any private document whereby another person may be prejudiced.
The intent must be to defraud another, but it is not requisite that any one should have been injured. It is sufficient that the instrument forged might have proved prejudicial. It has been holden that the jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine, although from the manner of executing the forgery or from the person's ordinary caution, it would not be likely to impose upon him; and although the object was general to defraud whoever might take the instrument and the intention of the defrauding in particular, the person who would have to pay the instrument if genuine, did not enter into the contemplation of the prisoner.
Most states have passed laws making certain acts to be forgery and Congress has also enacted several on this subject.
The term forgery, is also applied to the making of false or counterfeit coin.