Commonwealth v. Ray

69 Mass. 441 | Mass. | 1855

Dewey, J.

The instrument here set forth as the subject of (he alleged forgery is not one included in the enumeration in the Rev. Sts. c. 127, § 1. It is not, therefore, a statute offence. But many writings, not enumerated in the statute, are yet the subjects of forgery at common law. The definition of forgery at common law is quite sufficient to embrace the present case. Take that in 4 Bl. Com. 247, “ the fraudulent making or alteration of a writing to the prejudice of another man’s right,” or that of 2 East P. C. 861, (which is supported by Bac. Ab. Forgery, B, and followed in 2 Bussell on Crimes, 358,) that “ the counterfeiting of any writing, with a fraudulent intent, whereby another may be prejudiced, is forgery at common law; ” or that of Mr. Justice Buller, “ the making a false instrument with intent to deceive.” Rex v. Coogan, 2 East P. C. 949. In 3 Greenl. Ev. § 103, it is said that forgery “ may be committed of any writing which, if genuine, would operate as the foundation of another man’s liability.” See also Regina v. Boult, 2 Car. & K 604.

It is said that this instrument does not import a contract or promise of any kind. We think otherwise, and that, although it is wanting in details of language, fully stating the nature and extent of such contract, it has written language sufficiently indicative of a promise or obligation, to render it an instrument of value, by the false and fraudulent making of which the rights of others would be prejudiced. This false instrument would, if genuine, have created a liability on the part of the New York Central Railroad Company to carry the holder thereof from Albany to Buffalo, and would therefore have been a contract of value in the hands of a third person.

It is then objected that the crime of forgery cannot be committed by counterfeiting an instrument wholly printed or engraved, and on which there is no written signature personally made by those to be bound. The question is whether the writing, the counterfeiting of which is forgery, may not be wholly made by means of printing or engraving, or must be written by the pen by the party who executes the contract. In the opinion of the court, such an instrument may be the subject of forgery, when the entire contract, including the signature of the party, has been printed or engraved. The cases of forgery, generally, are cases of forged handwriting. The course of business, and the necessities of greater facilities for dispatch, have introduced, to some extent, the practice of having contracts and other-instruments wholly printed or engraved, even including the name of the party to be bound.

The .effect to be given to the words “ writing ” and “ written ” was much considered by this court in the case of Henshaw v. Foster, 9 Pick. 312. It arose in another form, and was not a question of forgery. But in the learned opinion of the late Chief Justice Parker, this question, as to what was embraced in these terms, seems to be fully settled, and it was there held that the words “writing” or “written” included the case of instruments printed or engraved, as well as those traced by the pen.

It has never been considered any objection to contracts required by the statute of frauds to be in writing, that they were printed. It is true that in those cases, usually, the signature at the bottom is in manuscript, and the printed articles of contract leave the name to be thus filled up. In such cases, the signature by the pen is necessary to the execution of the contract. And this is the more expedient mode, as it furnishes the greater facility for ascertaining its genuineness. But if an individual or a corporation do in fact elect to put into circulation contracts or bonds in which the names of the contracting parties are printed or lithographed, as a substitute for being written with the pen, and so intended, the signatures are to all intents and purposes the same as if written. It may be more difficult to establish the fact of their signatures; but if shown, the effect is the same. Such being the effect of such form of executing like contracts, it would seen; to follow that any counterfeit of it, in the similitude of it, would be making a false writing, purporting to be that of another, with the intent to defraud.

It is further insisted that this indictment cannot be sustained against the present defendant, because he did not personally aid in the actual manual operation of engraving, printing or lithographing the alleged spurious railroad ticket. It is conceded that it was done by his procuration—that he procured the stereotype plate from which the ticket was printed, and that he carried the plate to a printer, who, at his request and on his behalf, printed the tickets and delivered them to him. These facts are quite sufficient to charge the defendant. It is immaterial, perhaps, whether this be treated as a case of felony or misdemeanor. See Rev. Sts. c. 133, §§ 1, 2, providing for the trial and punishment, as principals, of accessories before the fact in cases of felony. But if it be a case of mere misdemeanor at common law, then the parties concerned are all principals. This case, not being within the Rev. Sts. c. 127, § 1, is only an offence at common law, and not punishable by imprisonment in the state prison; and therefore, by force of St. 1852, c. 37, it is not a felony, but a misdemeanor only.

But upon another point a majority of the court are of opinion that the exceptions taken to rendering judgment upon this verdict must prevail. This railroad ticket, thus alleged to be forged, does not state in terms any contract in detail, but only abbreviations and words from which a contract may be properly inferred and be legally stated. It is not enough to set forth the instrument merely in the abbreviated form in which it is printed, but it must be accompanied by other averments stating the legal contract, and showing some valuable legal interest arising from the possession and ownership of such instrument or ticket. This the indictment purports to do, and alleges in detail the contract arising from the instrument. In setting forth the contract or rights secured to the holder of such ticket, it describes it as “ purporting to be a ticket or pass issued by the New York Central Railroad Company, whereby said corporation promise and assure to the owner and holder thereof a passage in their cars over their railroad, extending from Albany to Buffalo,” and as “ signifying to the holder that it must be used by him continuously, after once entering the cars, without stopping at any of the intermediate places on the line of the railroad between said Albany and said Buffalo, unless indorsed by the conductor.” This latter statement, as to the continuous use of the cars, without stopping at any of the intermediate places, may accord with the practice of travellers holding such tickets, but is not one of the terms and stipulations of the ticket. It is, “ Good this day only, unless indorsed by conductor.” The restriction arising fiom the ticket is only that the holder shall travel from Albany to Buffalo, by cars that will carry him through in the same day. He is at liberty to stop at any intermediate place, and take a seat in a succeeding train, if his delay is so short as to give him time to make the entire trip the same day. The averment as to the contract should have been, therefore, that the ticket was good for one day only, or required the entire trip to be made in one day. There is therefore a palpable variance between the terms of the contract indicated by the ticket, and that set forth in the indictment as such.

The further inquiry is, whether the variance is fatal to the indictment, or may be rejected as surplusage. It cannot be rejected as surplusage, unless the entire statement of the terms of the contract, made in connection with this, can also be rejected ; as it is directly connected with it, as part of one and the same contract. But that cannot be done, because, if these statements of the legal interest acquired by the holder of the ticket were stricken out, the indictment would be defective, in not setting forth that the counterfeit paper was a paper purporting to be such as would be the subject of forgery. The further averments, in the indictment, that good and genuine tickets bearing the words borne on this ticket were issued by the New York Central Railroad Company, and that said tickets entitled the owners thereof to a passage in their cars from Albany to Buffalo, apply to the genuine tickets. The allegation of the legal effect of the instrument alleged as a counterfeit was a material one, and being so, cannot be rejected as surplusage. The alleged forged paper not being accurately set forth, the objection of variance is well maintained, and for that cause the verdict must be set aside.