Commonwealth v. Analetto

• Citation: 326 Mass. 115,93 N.E.2d 390
• Parties: COMMONWEALTH v. ANALETTO.
• Decision Date: 07 June 1950
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 115

93 N.E.2d 390

COMMONWEALTH v. ANALETTO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 7, 1950

Argued May 1, 1950.

E. Martin Ass't Dist. Atty, Abington, for Commonwealth.

Edward M. Dangel Boston (L. E. Sherry, Boston, and R. A. Marden, Boston, with him), for defendant.

Before QUA, C. J and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

The defendant was found guilty on two counts of an indictment, the first charging him with forging a check 'with intent to injure and defraud,' and the second with uttering the check with similar intent.

1. The defendant argues that the judge erred in denying his motion for a directed verdict. The evidence pertinent to this exception is as follows: In 1947 one McLeod and one Silvak as partners were carrying on in Somerville a contracting business under the name of T. & M. Construction Company. The business of the partnership consisted in laying asphalt 'hot top' on driveways and parking lots. In May of that year the city of Somerville advertised for bids for paving the yard of the Burns School. The defendant asked McLeod to measure this yard and to 'give him a price for laying hot top' on it. McLeod measured the yard and told the defendant that he would do the job for $1,910. The defendant told McLeod to go to the city hall and see one Kennedy who was commissioner of public buildings. McLeod saw Kennedy and signed a document which was introduced in evidence as exhibit 1. This exhibit, with an exception not here material, comprises two documents. One is a contract signed by Kennedy and the mayor on behalf of the city, and by McLeod for the T. & M. Construction Company. Attached to and made a part of the contract was a document entitled 'Proposal for the furnishing of all labor, [and] materials * * * necessary for the resurfacing and repair of asphalt paving at the Burns School.' It could have been found that it was the latter document that McLeod signed when he went to the city hall to see Kennedy. McLeod testified that when he signed exhibit. I none of the blanks on the first page was filled in and on the last page nothing had been written on the blank where the amount of the bid was to be stated. When put in evidence, the blank had been filled in so that the amount of the bid appeared as $3,710. Both the bid and the contract were dated June 3, 1947. Under the latter the amount which the city agreed to pay for the Burns School job was the same as that appearing in the bid. The record reveals virtually nothing concerning the details of the making of the contract beyond the fact that most of the blanks on the first page were filled in by Kennedy.

Later, after learning that his firm had been awarded the contract, McLeod saw the defendant, who told him to go ahead with the work. McLeod agreed to do the job for $1,910. After the work had commenced, McLeod, at the defendant's request, gave him some billheads of the T. & M. Construction Company. No bill to the city was ever made out by McLeod. In July a bill for part of the work was submitted to the city on a billhead of the T. & M. Construction Company. Under date of August 8, 1947, a check was issued by the city for $2,881.50 payable to the T. & M. Construction Company and this was given to McLeod by the defendant. McLeod cashed it and, after deducting the amount ($1,910) for which his firm had agreed to do the job, paid over the balance to the defendant.

Shortly after the work was completed, a bill was presented to the city for the amount of $828.50, the balance due under the contract. On August 20, 1947, a check for this amount was issued by the city. Shortly thereafter this check was cashed by one D'Ovidio, the proprietor of the East Star Cafe in Somerville. The check bore the following indorsement: 'T. & M. Construction Co. Tom. MacLeod.' Concerning the cashing of the check there was a conflict of testimony. McLeod testified that he never rendered the bill for which this check was drawn, that the indorsement was not made or authorized by him, and that he never saw the check until it was shown to him by State police officers sometime in December, 1948. The jury could find from his testimony that he never received any of the proceeds from the check. The defendant admitted that the indorsement was in his handwriting, but said that was done in the following circumstances: McLeod telephoned him one night and said he had been down to the East Star Cafe to get the check cashed but was unsuccessful. At the defendant's suggestion they met on the following day and went to the East Star Cafe to get the check cashed. MeLeod told the defendant that he was unable to indorse the check because he had had a 'very bad night' and had 'the shakes,' and asked the defendant to do it for him. The defendant complied with this request. D'Ovidio, the proprietor of the cafe, informed the defendant that he did not have enough money on hand to cash the check. The defendant told him to let him have $128 and to pay him the balance later. D'Ovidio gave the defendant $128 which the latter turned over to McLeod. Later that afternoon the defendant 'picked up the $700.'

The evidence warranted a finding that the defendant had forged and uttered the check in question. But the statutes which define these offences (G.L. [Ter.Ed.] c. 267, §§ 1 and 5) require that the forging and uttering be done 'with intent to injure or defraud.' It has been held that there need not be an intent to injure or defraud a particular person. An intent to defraud anyone is sufficient. Nor is it necessary to show that any person actually was defrauded. Commonwealth v. Bond, 188 Mass. 91, 74 N.E. 293; Commonwealth v. Segee, 218 Mass. 501 504-505, 106 N.E. 173; Commonwealth v. Peakes, 231 Mass. 449, 456, 121 N.E. 420, an intent to defraud could have been found here. The bank upon which the check was drawn could have refused to honor the check on the ground that the payee's indorsement had been forged. G.L. (Ter.Ed.) c. 107, § 45. Had it done so D'Ovidio, who cashed it, would have been in the position of one who had given money for a worthless instrument. If on the other hand the bank honored the check, it would have no right to charge that amount against the account of its depositor, the city, if the latter had satisfied the requirements of G.L. (Ter.Ed.) c. 107, § 46. Jordan Marsh Co. v. National Shawmut Bank, 201, Mass. 397, 87 N.E. 740, 22 L.R.A., N.S., 250. In such a case the bank would have been defrauded. Perhaps there are others who might have been defrauded. We make no attempt to exhaust the possibilities. One forging an indorsement on a check is presumed to intend the probable consequences of his acts. One of those consequences is that whoever pays out money under the belief that the indorsement is genuine is likely to be defrauded. See Commonwealth v. Henry, 118 Mass....