A - Counterfeiting of coin

counterfeiting the Seals of the Crown or other Royal Signatories, seem better denominated by the latter Civilians a branch of the "crimen falsi" or forgery".

The present English law on the subject of coinage offences is contained in the Coinage Offences Act, 1861 (24 & 25 Vict. c. 99).

In our law, as in the host modern continental Codes, coinage offences are classed among the crimes affecting Public Trust;

Siccome quello che gettando il discredito sulla sincerità delle monete, genera diffidenza nel pubblico mercato ed impedisco o perturba le operazioni commerciali" (Relazione Ministeriale on the Italian Project of 1887, et CXVIII).

The following are the offences dealt with in our Code:

A - Counterfeiting of coin

This crime exists in each of the following three cases: -

1. When gold or silver coins legally current in these Islands are counterfeited or lightened or impaired (Section 164)

2. When copper coins similarly current are counterfeited (Section 166)

3. When gold or silver coins not legally current in these Islands are counterfeited or lightened or impaired for the purpose of circulating the same in these Islands or elsewhere (Section 169 (1)).

The falsification of coins can, therefore, be committed in two ways, i.e., by counterfeiting or by altering. The counterfeiting of coin consists in the fabrication of one of these pieces of metal to which the Public Authority has given the privilege of representing an established value and which are receivable in payment. The natural characteristic of counterfeiting is the imitation of the genuine coin. In other words, the false money must be of the type and be made to resemble the genuine coin, by bearing those figures and those indications which distinguish such coins as money end make them as such receivable or capable of being received by the public. On the other hand,

however, it is not to be supposed that the imitation must be exact, complete and indistinguishable: it is sufficient if it be such as to be capable of deceiving. Roberti, commenting on a provision of the Neapolitan Code, from which the provision of our Code was drawn, says:

"Trattandosi di contraffacimento la legge non distingue punto la maggiore dalla minoro somiglianza tra le monete false e le monete vere, ma si contenta inveoe di vedere contrafatta una moneta qualunque, di vederla, cioè, fornata ad una qualunque somiglianza colla vera, per punire l’autore quando anche non sia riuscito ad imitarla perfettamente. Esistendo sempre la possibilità dell'inganno nel contraffacimento in disamo vi esiste parimenti il soggetto della pena a senso della legge"237 .

In the English Coinage Offences Act it is expressly laid down that the offence of counterfeiting is to he deemed complete although the counterfeiting of the coin is not finished or perfected. Indeed, in that Act, the offence is deemed complete even if the coin made or counterfeited is not in a fit state to be uttered. This is in contrast with the continental doctrine according to which, although, as we have said, it is not necessary that the resemblance of the genuine coins should be perfect, yet in order to constitute the complete crime of counterfeiting it is essential that the coins should be in a fit state to be uttered ('spendibile'):

"Perchè sorga il reato di falso nummario, la moneta contraffatta o alterata deve essere spendibile"238 .

The interest which the law seeks to protect in creating this crime is, as we have seen, the public faith, inasmuch as counterfeit or altered coins engender mistrust in the public market and hinder or disturb commercial transactions. It is, therefore, necessary, as Carrara says, that the public faith can be exposed to suffer injury by this fact; in other words, it is necessary that the money may be put into circulation: if this possibility is absent, there will only remain a perverse intention manifested by insufficient acts and the public aspect of the crime fails (Prog., Parte Spec., VII, para. 3548). So that, if the counterfeiting is so imperfect or so clumsy and evident that the money cannot possibly be uttered, the crime cannot arise:

237 Vol. VI, pg. 220, para. 897 238 Maino, op. cit., para. 1268

"E però può ritenersi come regola inalterabile e costante che se, in generale, l'imperfezione della imitazione non e' una causa legale di scusa [...] nondimeno, quando essa giunge a tal grado di grossolanità e di evidenza che il commercio della circolazione non possa sentire alcun danno, allora il reato svanisce: i pezzi fabbricati non possono essere piu' considerati come noneté false, perchè' non hanno ne' l'apparenza ne' i tipi delle monete imitate: il principale elemento del reato non sussiste"239 .

Some writers hold that even the fact that the money may have been actually uttered is not necessarily in itself a conclusive proof that it satisfies the requirements of "spendibilità"'. The interest protected by the law in repressing this crime - they insist is public faith and not the pecuniary interest of any particular individual. The fact that a false coin which could not have deceived and cheated the most elementary care may have been received as good money, may be sufficient for constituting a fraud to the detriment of the foolish or careless person who received it: but that fact cannot supply the deficiency of the material element, which is necessary to constitute the crime against public trust240 .

It is not certain how far our Courts would be prepared to accept the view that though the false coin has in fact been uttered, this is not conclusive evidence of its potentiality of circulation. In fact, we shall see in dealing with the crime of forgery of documents which are also crimes against the public trust - that, according to our case law, although there cannot be the crime of forgery unless there is a potentiality of the document deceiving (not even this is necessary when the document forged is a public document) still where the forgery has, in point of fact effected the deceit intended by the forger it is no longer material to enquire whether the manner of executing forgery was such as to create the possibility of prejudice241 .

The altering may consist in "lightening or impairing the coins". The old Italian text said, like its model the Neapolitan Code, "alterare il peso o la bontà". In England also, under Section 4 of the Act aforequoted, it is a felony to "impair, diminish or lighten any of the

239 Chauveau-Helie, op. cit., Vol. I, P. Il, p. 167, n. 582 240 V. Maino, loc. cit., where he quotes also Carrara op. cit., para. 5546 et seq.; Pessina 'Cod. pen. tose, ill.', TV, p. 32 241 Cfr. Harding, op. cit., paras. 50, 26, 19

King’s gold or silver coin with intent that the coin so impaired, diminished or lightened may pass for the King? s current gold or silver coin". The impairing or lightening may be by clipping, filing or other process intended to take away part of the metal or reduce the weight or degree of purity or standard of metal.

Among continental writers the question is discussed whether the altering of genuine coins so as to give, them the appearance of coins of a blether denomination constitutes an "altering" of the coins of lower denominations or a "counterfeiting” of the coins of a higher denomination which it was sought to imitate.

Carrara says:

"Dove l’alterazione consiste nel dare alla moneta di valore inferiore apparenza di altra moneta di valore superiore/si avrà la contraffazione e non l’alterazione perchè il delitto non consiste qui nel diminuire il valore intrineico della moneta inferiore ma nel simulare il valore ebtrinsico della moneta superiore. Non e' reato in quanto siasi alterato il modo dì essere di una moneta sincera ma in quanto si e' cercato/col darle apparenza di un modo diverso dal vero di creare, e porre in circolo una moneta falsa"242 .

The same writer goes on: "Tanto fabbrica un Napoleone falso chi lo costruisce con una lamina greggia, quanto chi lo costruisce servendosi di un franco d’argento ...E quando daluno si - illegible - non dirà gia di aver patito danno perchè gli e' stato imposto un franco alterato, ma di aver patito danno perchè gli e' stato imposto un Napoleone falso"243 .

The same solution applies, other writers say, where the alteration consists in the colouring, gilding, silvering, etc., of coins to make them resemble and pass for other coins of a higher denomination: as, e.g., silvering copper coin to make it pass for silver coin244 .

In English law, the matter is put beyond doubt by the said Coinage Offences Act under which the expression “false or counterfeit" coin resembling or apparently intended to resemble or pass for any of the King's current gold or silver coin, includes any of the current coin which shall have been gilt, silvered, washed, coloured or cased over, or

242 Op. cit., para. 3523 243 Ibid. 244 Cfr. Roberti, op. cit., Vol. VI, p. 218, n. 14; Chauveau-Helie, Vol. II, p. 582

in any manner altered so as to resemble or be apparently intended to resemble or pass for, any of the King's current coin of a higher denomination.

Now, these two species of falsification, i.e., the counterfeiting and the altering (lightening or impairing are not common to every kind of coin. Our law speaks of them both with regard to gold or silver coins (Sections 164, 169 (l)) but speaks only of counterfeiting copper coins. The reason for this difference was that while the lightening or impairing, as by filing or clipping, gold or silver coins might yield some profit to the forger, because even a small quantity of such metal had always some value in itself, to do the same thing with copper coins was not considered to offer inducement to the forger, because the small portions of such metal that could be taken away from the coins would have no appreciable value and would not even pay the forger for his trouble and work. Such alteration, therefore, did not deserve to be provided for by the legislator as a species of forgery not likely to happen: “Quod perraro accidit praetereunt legislatores".

Also, for the purposes of punishment, the law makes a distinction between the counterfeiting or altering of gold or silver coins lawfully current in these Islands and the counterfeiting of copper coins so current. These latter are not used except for transactions of small amounts and the injury that can therefore arise is not of the same gravity as that which can be feared from the falsity of the other coin. Moreover, as the gain which the forger can hope for in counterfeiting copper coins is by far less substantial than that which he expects in falsifying a gold or silver coin, a higher punishment is required to restrain the latter than the former.

Another distinction which our law raises for the purpose of punishment is whether the crime of counterfeiting or altering gold or silver coins, or counterfeiting copper coins, in either case, lawfully current in these Islands, is committed by a private person or "by any public officer or servant who by virtue of his office is charged with the receipt or issue of coins. In the latter case, the ordinary punishment is increased by one degree”. The abuse of office and the special breach of trust clearly aggravate the criminality of the act.

A third distinction is made between the case in which the falsification of gold and silver coin refers to money lawfully current in these Islands and the case in which the money is not so lawfully current. Other codes do not make any such distinction but give the

same treatment to foreign money as they give to the money of the State. Thus, with reference to the Italian Code of 1889 it is stated:

"Il codice non fa distinguere tra monete nazionali e le monete straniere, perchè come ebbe ad osservare la commissione della Camera Elettiva sul progetto del 1887 il mondo e' un sol mercato: le monete servono agli scambi, i quali non sono soltanto interni, ma esterni e questi non hanno minore importanza dei primi, perchè' servono a svilupparli e mantenerli"245 .

Our Code, however, makes the following distinction:

(i) It provides no punishment at all for the counterfeiting or altering of foreign cooper coins

(ii) It punishes the counterfeiting or altering of foreign gold or silver coins with a much smaller punishment than the counterfeiting or altering of gold or silver coins lawfully current in these Islands.

Another distinction would seem to emerge from the different wording of Section 169 (l) as compared with that of Sections 164 and 165. With regard to the counterfeiting or altering of coins not lawfully current in these Islands, the said Section 169 (l) expressly requires, in order that the crime may subsist, that the purpose of the offender be that of circulating the same in these Islands or elsewhere. No express mention of any such purpose is made in the said Sections 164 and 165 in regard to the counterfeiting or altering of gold or silver coins or the counterfeiting of copper coins lawfully current in these Islands.

The very important question, therefore, arises as to whether the said purpose is an essential element of the crime even in the case of falsification of coin being legal tender in these Islands. Chaveau-Helie say:

"The criminal intent is an essential element of every crime. If a person has counterfeited a coin, without any intention of uttering it, but only for a purely artistic purpose, he will not be guilty of any offence".

245 Vide Maino, op. cit., art. 256, para. 1263

"In materia di falsa moneta la reità si rivela dalla emissione del prezzo falso e dalla prova che questa emissione e' stata lo scopo del contrafattore"246 .

In Italian doctrine this mental element is considered necessary in all cases. In the Messina project of 1883, the intent of putting the counterfeit or altered coins into circulation was expressly required.

"La scienza" - it was said in the Ministerial Report on that project - ''non dubita di porre questo fine come condizione per aversi il falso nummario247 , mettendo in luce le conseguenze esorbitanti a cui e potrebbe venire con un concetto diverso come, per esempio, di punire colui che tosasse o limasse una moneta senza nessuna intenzione di spenderla, ma per usare di parte del metallo di cui e' composta, o che per uno scopo affatto diverso dallo spendere, come, per completare una collezione, imitasse una moneta d’altro "valore".

But the addition proposed by Pessina was not accepted in the Italian Code. It was considered dangerous as implying that the falsification was not sufficient to incriminate the fact, that it was necessary to prove on the part of the agent the intention of putting the coin into circulation.

"Such intention" - it was said in the report on the project of 1887 - "is inherent in the fact of the falsification of the money, as in general, in all crimes of forgery in respect of which the maxim applies ‘res ipse in se dolum habet'. In order that the forger "may remove from himself criminal responsibility the circumstances must show in the clearest manner proof of the fact, very rare to be sure, that the counterfeiting of the money was done for mere artistic pleasure or for the satisfaction of some other legitimate purpose".

In view explanation Maino words proposed by Code, the Italian of the last part of this official argues that, although the express Pessina were not incorporated in the legislator did not intend to depart from the doctrinal principle that the intentional element was requisite to constitute this crime:

246 Chaveau et Helie, Vol. I, P. II, p. 166, n. 581 247 Carrara, Programma, Parte Speciale, Vol. VII., para. 3529