Commonwealth v. Foster
114 Mass. 311
Mass.
1873
Check Treatment
Wells, J.

Two questions are presented by the instructions in regard to the note signed “ Little & Co.” First, whether the fact that the manual operation of attaching the signature was рerformed by a person of the name of Little who had done business under the name of Little & Co., is incompatible with a verdict finding the note to be a forgery. Seсond, whether it may be found to be a forgery on the part of one who procures it to be so made, intending to use it as the note of some other party or pretended party and thereby defraud another, although Little was innocent of fraudulent intent, and signed the note without understanding the purpose for which it was prоcured.'

Forgery is not necessarily counterfeiting. One definition quoted approvingly in Commonwealth v. Ray, 3 Gray, 441, is “ the making a false instrument ‍​‌‌​‌​‌​‌​‌‌​‌​​​​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌‌‌​​​‌‌​​​​‍with intent to deceive.” In The King v. Parkes, 2 Leach, (4th ed.) 775, it is defined as “ the false making a note or other instrument with intent to defraud.”

By Gen. Sts. c. 162, § 1, “ whoever falsely makes ” a promissory note, “ with intent to injure or defraud any person ” is punishable as for the оffence of forgery. The falsity of the instrument consists in its purporting to be the note of some party other than the one actually making the signature. The falsity of the act consists in the intent that it shall pass and be received as the note of some other party. If there be simulation, or any device in or upon the instrument itsеlf, adopted to make it appear to be the note of such other party, so that the falsity and its proof are both borne upon it, no one would doubt that the charge of forgery might be maintained, notwithstanding tnat the signature is of a name which might lawfully be used by the person who attached it to the note.

*320It matters not by whоm the signature is attached, if it be not attached as his own. If the note is prepared for the purpose of being fraudulently used as the note of another рerson, it is falsely made. The question of forgery does not depend upon the presence upon the note itself of the indicia of falsity. If extrinsic circumstances are such as to facilitate the accomplishment of the cheat without the aid of any device in the note itself, the preparation оf a note with intent to take advantage of those circumstances and use it falsely is “ making a false instrument.” If Little & Co., “ a large firm doing business on Franklin Street, Boston,” and having “ a large manufactory in Charlestown,” were well known and in undoubted credit, and the Little & Co. of George P. Little were of no credit and entirely unknown, and George P. Little made and signed the note, not as his own or as the note of his firm, but solely with a view to its use as the defendant in this case used it, all the elements, both of effect and intent, ‍​‌‌​‌​‌​‌​‌‌​‌​​​​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌‌‌​​​‌‌​​​​‍necessary to constitute the offence of forgery, would exist. The position of the case is the same, if the party defrauded knew nothing of either firm except from the representations of the defendant; and the supposed makers of the note did not in fact exist at all. United States v. Turner, 7 Pet. 132.

The distinction is plainly drawn in Commonwealth v. Baldwin, 11 Gray, 197, between one who assumes to bind аnother, either jointly with himself, or by procuration, however groundless and false may be his pretence of authority so to do, and one who signs in such manner that the instrument may purport to bear the actual signature of another party having the same name, and intending that it shall be so received. It purports to be the instrument of such other party, among those not familiar with his handwriting, by bearing his name; and it is a false instrument, and falsely made, if it was so intended. Commonwealth v. Stephenson, 11 Cush. 481.

The second question is, in a measure, involvеd in the first. To constitute forgery, where there has been no subsequent alteration, the fraudulent intent must attend the making of the instrument. But it is not necessary that it should be in the mind of thе one whose hand holds the pen in writing the signature. If that is *321done at the dictation or request of another, and for his purposes and use, and his designs are fraudulent so аs to make it forgery if he had written it himself, then the instrument is a forged one. Commonwealth v. Stevens, 10 Mass. 181. Commonwealth v. Ray, 3 Gray, 441. The circumstance that the person so employed bore the same name as that subsсribed to the instrument, makes it necessary that it should be made to appear not to have been a genuine transaction ; and that the signature was not attached to the paper as a contract of the one who wrote it. If he signed it, without understanding its purpose, thoughtlessly, or from unfamiliarity with business matters, or being himself deceived, he might not be guilty of a criminal offence, and yet the instrument might be a forgery, so that one who procured it to be so made might be convicted eithеr of the crime of forgery or of uttering a forged instrument.

The foregoing propositions are all amply sustained by ‍​‌‌​‌​‌​‌​‌‌​‌​​​​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌‌‌​​​‌‌​​​​‍the authorities cited in behalf of the Commonwеalth.

Of those cited by the defendant, Regina v. White, 1 Denison, 208, was a case of false assumption of authority to bind another, and came within the distinction pointed out in Commonwealth v. Baldwin, 11 Gray, 197.

In The King v. Hevey, 1 Leach, (4th ed.) 229, the indorsement was found to be genuine, and the fraud of the defendant consisted in representing himself to be the party who made it. It was held that that did not constitute forgery.

In Rex v. Story, Russ. & Ry. 81, there was false rеpresentation only ; there was no false signature.

In Rex v. Webb, Russ. & Ry. 405, there was a genuine acceptance, but the bill was addressed to the drawee by a false desсription as to residence and occupation. There was no person in fact of that name, answering to the description, and no proof of false representations as to the acceptor, aside from what was borne on the paper. It did not appear, therefore, that there was a fraudulent purpose to pass the bill as an acceptance of another person than the real drawee, either real or fictitious. In 1 Gabbett’s Crim. Law, 368, it is remarked of this case, “ As *322there was no falsity in the signature of the drawer or acceptor the transaction was ‍​‌‌​‌​‌​‌​‌‌​‌​​​​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌‌‌​​​‌‌​​​​‍therefore rather in the nature of a cheat or false pretence than a forgery.”

All these cases lack the essential element of an intent, when making a signature, or proсuring it to be made, to pass it off fraudulently as the signature of another party than the one who made it. When that intent exists, and the instrument is the fruit of it, the author of the fraud сannot escape the charge of forgery by procuring one who happens to bear a name that suits his purpose to supply him with a pretendеd genuine signature. There is double falsity in such a mock performance.

The instructions to the jury were in strict conformity to these views. They presented clearly and explicitly the precise questions which arose upon the testimony. The several propositions were carefully stated, and well adapted to the case. We see no ground of exception to the instructions given; nor to the refusal to give those prayed for and not given.

The third prayer contains a proposition which, if well founded in the facts or supported by testimony, might properly have been given to the jury. It is, in substance, that if the defendant took the notеs described in the second and third counts “ supposing that they were the genuine notes of James H. Thompson, and passed them as such,” he cannot be conviсted on those counts. .But it is a matter of discretion with the presiding judge whether to adopt the hypothetical form in which an instruction is prayed for, or to present the legal proposition it contains by a direct statement of what is necessary to be established in order to convict. Upon this point the exceptions show that the judge did instruct the jury that the government must prove, not only that the note was a forgery, but that the defendant, when he passed it, knew it to be a forgery. And still again, that three things must be shown in respect to each separate count: “ that the defendant passed a forged note; that he knew it was forged when he passed it; that he passed it with intent to defraud.” The jury found the facts contrary to the hypothesis of the defendant’s prayer

*323In other respects the case in regard to theThompson’notes, and also the Simmons’note, is the same as in regard to that of Little & Co.

The eighth prayer presents only a ‍​‌‌​‌​‌​‌​‌‌​‌​​​​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌‌‌​​​‌‌​​​​‍question of fact for the jury.

Exceptions overruled.