34 Me. 383 | Me. | 1852
In indictments for forgery, the instruments alleged to be forged should be set forth in words and figures, whenever it is practicable. But, if in possession of the prisoner, or if they be lost, or destroyed, or not attainable by the government, and it be so stated in the indictment, this may constitute a sufficient reason for not setting out exact copies. 2 East, P. C. 975, c. 19, § 53, 54; 1 Chit. Cr. Law, 234; 2 Russell on Crimes, 359; Commonwealth v. Houghton, 8 Mass. 107; People v. Kingsley, 2 Cowen, 522. The same principles are applicable to indictments upon statutes, for having in possession counterfeit bank bills, notes, public securities, &c. with intent to pass them, with a design to defraud. R. S. c. 157, § 5, 6, 7, &c.
The instrument should be set forth in the indictment according to its tenor, and not according to its purport and effect. By the former mode an exact copy is intended, but by the latter, the import or substance only is indicated. Queen v. Drake, 3 Salk. 225; Rex v. Beare, 1 Ld. Raym. 414; Wright v. Clements, 3 B. & Ald. 503; 3 Chitty’s Criminal Law, 801, 802, (*1041 ;) Commonwealth v. Wright, 1 Cush. 46.
It has been the general practice in this State and in Massa
It will be found, that in the earlier practice of Mr. Davis, as Solicitor General, indictments of the description referred to, were not drawn in conformity with the rules and precedents subsequently adopted by him. Commonwealth v. Stow, 1 Mass. 54 ; Same v. Bailey, 1 Mass. 62; Same v. Stevens, 1 Mass. 204. The change in this respect cannot, in our opinion, be supported upon principle or ^authority. We do not feel called upon to sanction loose forms and an erroneous practice, now that an objection is taken, and the matter distinctly presented for consideration.
It does not become material to consider the exceptions.
Motion sustained and judgment arrested.