Commonwealth v. Butterick

100 Mass. 12 | Mass. | 1868

Foster, J.

The first exception is, that the judge at the trial refused to rule that there was no evidence that the forged name of J. M. Stevenson was placed by the defendant on the bill after he wrote his own name there as drawer, acceptor and first indorser. But we think the form of the instrument and the natural order of the names was evidence from which a jury was authorized to infer that they were actually written in the succession in which they purport to have been. There would seem to be little doubt that, when Butterick drew a bill on himself payable to his own order, he would have accepted it and indorsed it before he placed on it the forged name which was designed to strengthen the credit of his own, and without which it would be only paper with a single name, such as banks are not accustomed to discount. Certainly the presumption is, that the second indorsement was made after the first, and after the name of the drawer had been signed; and where the same person is acceptor also, we think the natural inference is that hia name likewise was written when the bill was drawn, and before it was indorsed, and that the jury were authorized so to conclude and find.

2. Upon principle, as well as by the authorities cited by the attorney general,^* we entertain no doubt that an order for the payment of money, drawn by one in his own favor on himself, and by himself accepted and indorsed, may be treated as a bill of exchange, and so described in an indictment. Such instruments are well known in commerce; especially in the case of mercantile firms which have branches in different cities, all com-. posed of the same partners. Perhaps such a bill may also be declared upon as a promissory note. But we agree with the court of queen’s bench in the latest English case on the question, decided in 1852, that “ it is not unjust to presume that it was drawn in this form for the purpose of suing upon it either as a promissory note or a bill of exchange.” Lloyd, v. Oliver, 18 Q. B. 471. It is sufficient that the instrument was in the form of, and purported to be, a bill of exchange; and the defendant might be convicted of forging this indorsement, if all the other names were also forged or were those of fictitious personages.

3. The allegation that the words, “ Payable at the Lancaster National Bank, J. S. Butterick,” were indorsed on the face of the bill is sufficiently intelligible and correct. In this connection, “ indorsed ” merely means “ written upon; ” and the use of the word is justified by lexicographers as well as legal decisions. Rex v. Bigg, 1 Stra. 18.

4. In the second count, the words “ then and there,” as applied to the guilty knowledge of the defendant, refer to the time when and place where he had in his possession and uttered the bill. It is charged that he had on a day named one forged bill, and then uttered it and then knew it to be forged. This is an averment of one act of possession, and of a simultaneous uttering and guilty knowledge. In Edwards v. Commonwealth, 19 Pick. 124, the judgment was reversed on a writ of error, be cause, where the possession of ten or .more counterfeit bills at one time was of the essence of the offence, the indictment merely alleged possession of ten bills on one day, and not at once on that day. But the case expressly recognizes and expounds the doctrine that, where a single fact is alleged with time and place, the words 11 then and there,” subsequently used as to the occurrence of another fact, refer to the same point of time, and necessarily import that the two were precisely coexistent.

5. The same rule answers the objection that the last three counts do not allege that the notes set forth were forged when uttered. In each case the averment is explicit, that the forgery existed while the note was in the defendant’s possession, and that he then uttered it with guilty knowledge and intent to defraud.

6. The name of the person intended to be defrauded need not be alleged. Gen. Sts. c. 162, § 13. Before this statute was enacted, it was not necessary nor usual to set forth the name of the person to whom the forged instrument was uttered and published. Hopkins v. Commonwealth, 3 Met. 460. Certainly the provision was not intended to require any new strictness in criminal pleading. When it was held necessary to name the party intended to be defrauded, the person whose name was forged might be named, and the law presumed an intent to defraud him. Commonwealth v. Starr, 4 Allen, 301. Of course, that mode of pleading gave the defendant no more information as to the nature of the charge he was to meet than this defendant has under the present indictment. In our opinion, neither the usages of criminal pleading, nor the provisions of the Declaration of Rights that offences shall be plainly, substantially and formally described, require any more particular description than thess counts contain.

7. It is clear that the averment that a whole instrument which is set forth has been forged is satisfied by proof of a forgery of any material part thereof. 1 Hale P. C. 684. Rex v. Atkinson, 7 C. & P. 669. Exceptions overruled.

* Pitcher v. Barrows, 17 Pick. 363. Bigelow v. Colton, 13 Gray, 310. Clapp v. Rice, lb. 404, 405. Magor v. Hammond, referred to by Bayley, J., in Harvey v. Kay, 9 B. & C. 364. Wildes v. Savage, 1 Story, 22. Patteson, J., in Davis v. Clarke, 6 Q. B. 18,19. Cunningham v. Wardwell, 3 Fairf. 469. Story on Bills, §§ 35, 36, 59, and cases cited. Edis v. Bury, 6 B. & C. 435. Lloyd v. Oliver, 18 Q. B. 471. Story on Notes, § 6. Bayley on Bills, (6th Eng. ed.) 8. 1 Parsons on Notes and Bills, 63. Regina v. Pike, 2 Mood. 76, 77. 2 Russell on Crimes, (4th Eng. ed.) 353. The defendant cited to the same point, Miller v. Thomson, 3 M. & G. 575; Regina v. Bartlett, 2 Mood. & Bob. 362 Mobley v. Clark, 28 Barb. 390 ; Fairchild v. Ogdensburg, Clayton & Rome Railroad Co. 15 N. T. 337.