Commonwealth v. Henry

Massachusetts Supreme Judicial Court

Commonwealth v. Henry

118 Mass. 460, 1875 Mass. LEXIS 402

CourtMassachusetts Supreme Judicial Court

DecidedOctober 30, 1875

StatusPublished

Cited by7 cases

This text of 118 Mass. 460 (Commonwealth v. Henry) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Henry, 118 Mass. 460, 1875 Mass. LEXIS 402 (Mass. 1875).

Pincite

Opinion

Devens, J.

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 [463]*463expected, to be able to meet the note when due. The subject to which the request of the defendant was apparently intended to call the attention of the presiding judge, was the effect of his possession of the means and of his intention to take up the nota when due, and in relation to this the statement of the law was correct. The intention of one who utters a forged note to take it up at-maturity, and the possession of means which will enable him to do so, do not rebut the inference of intent to defraud, which is necessarily drawn from knowingly uttering it for value to one who believes it to be genuine, nor deprive the transaction of its criminal character. Commonwealth v. Tenney, 97 Mass. 50.

Exceptions overruled.

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Devens, J.

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 [463]*463expected, to be able to meet the note when due. The subject to which the request of the defendant was apparently intended to call the attention of the presiding judge, was the effect of his possession of the means and of his intention to take up the nota when due, and in relation to this the statement of the law was correct. The intention of one who utters a forged note to take it up at-maturity, and the possession of means which will enable him to do so, do not rebut the inference of intent to defraud, which is necessarily drawn from knowingly uttering it for value to one who believes it to be genuine, nor deprive the transaction of its criminal character. Commonwealth v. Tenney, 97 Mass. 50.

Exceptions overruled.

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Bluebook (online)

118 Mass. 460, 1875 Mass. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-henry-mass-1875.

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