118 Mass. 460 | Mass. | 1875
Whether the omission of the word “ Athol,” in the description of the note in the indictment, if it had been shown that it was actually upon it when made or uttered, would have been a fatal variance, need not be discussed. St. 1864, c. 250, § 1. Commonwealth v. Wilson, 2 Gray, 70. Commonwealth v. Hall, 97 Mass. 570. As it did not appear when or by whom this word was written in pencil at the extreme bottom of the note, the court could not have assumed that it was written at the time of making or uttering the note, and could not therefore, even if its omission would in such case have been a fatal variance, have dismissed the indictment or ordered a verdict for the defendant. If the omission was important, it was for the jury to decide whether or not the word was upon the note when it was made or uttered, and the defendant’s motion was properly refused.
The last sentence of the instruction given by the judge, in response to the request of the defendant, “ that if the defendant signed the name of J. C. Hill to said note without the authority of said Hill, and passed it as the note of J. C. Hill, expecting to be able to meet it when due, it would be a forgery,” would undoubtedly, if it stood alone, be a defective statement of the law. But it is not to be separated from the sentence which precedes it, which distinctly states that there must be an intent to defraud, and, as thus connected, the obvious meaning of the instruction, and so it must have been understood by the jury, was that if the defendant signed the note under the circumstances supposed, in tending thereby to defraud, this would be a forgery, even if he
Exceptions overruled.
