Com. v. Bailey

• Decision Date: 21 October 1908
• Citation: 85 N.E. 857,199 Mass. 583
• Parties: COMMONWEALTH v. BAILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 583

85 N.E. 857

COMMONWEALTH v. BAILEY.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1908

COUNSEL

Geo. S. Taft, Dist. Atty., and Ernest I. Morgan, Asst. Dist. Atty., for the Commonwealth.

Herbert Parker, John R. Thayer, and Henry H. Fuller, for defendant.

OPINION

MORTON J.

This is an indictment charging that the defendant 'with intent to injure and defraud did utter and publish as true a certain forged instrument purporting to be a promissory note well knowing the same to be forged.' The indictment contains two counts, charging the same offense on two different dates. The defendant entered a plea of not guilty, and, before the impaneling of the jury, filed a motion to quash 'for want of sufficient allegations in form and substance,' and because the indictment did not set out in either count 'the instrument or instruments alleged to have been forged' or 'the tenor or substance of said alleged forged instrument or instruments or either of them.' The motion to quash was overruled and the defendant duly excepted. The jury found the defendant guilty upon the first count, and not guilty upon the second.

The statutory form of indictment for forgery is as follows 'That A. B. with intent to injure and defraud, did forge a certain instrument purporting to be, etc. (give the name of the instrument, description, tenor or substance as the pleader chooses).' And the statutory form for uttering is: 'That A. B. with intent to injure and defraud, did utter and publish as true a certain forged instrument (describe as in forgery) well knowing the same to be forged.' Rev. Laws, c. 218, § 67.

The defendant contends that the statute requires that the indictment should set forth the name of the instrument and its description and in addition either the tenor or substance of the instrument. In other words he contends that the statute should be construed as if it read 'give the name of the instrument and its description and its tenor or substance as the pleader chooses,' limiting the choice of the pleader to the setting out of the 'tenor or substance.' Manifestly the grammatical structure of the phrase does not require or warrant this construction. The phrase is disjunctive and not conjunctive. There is nothing in it which limits the choice of the pleader to the tenor or substance of the instrument. On the contrary he may give 'the name of the instrument, description, tenor or substance,' one or more, as he chooses. The object of the statute was and is to simplify indictments without interfering with the constitutional rights of the accused. But if the construction contended for by the defendant is to prevail, indictments for forgery will be less simple than they were before. It has been held that: 'It is sufficient if it appears on the face of the indictment by proper averments that the instrument forged is of the...