Commonwealth v. Costello

• Decision Date: 19 May 1876
• Citation: 120 Mass. 358
• Parties: Commonwealth v. John F. Costello
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 358

Commonwealth v. John F. Costello

Supreme Court of Massachusetts

May 19, 1876

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Suffolk. Indictment for forgery, in four counts. The first count charged the defendant with making, and the second with uttering, a bond of the tenor following:

"Know all men by these presents, that we, Marion Pearce and John F. Costello, of Boston, in the county of Suffolk and Commonwealth of Massachusetts, as principals, and William P. Schell and Isaac Judson, of said Boston, as sureties, are holden and stand firmly bound and obliged unto John Belcher, of Winthrop, in the county of Suffolk and Commonwealth aforesaid, in the full and just sum of thirty-six hundred dollars, to be paid unto said John Belcher, his executors, administrators or assigns: To which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the twenty-fourth day of February, in the year of our Lord one thousand eight hundred and seventy-five.

"The condition of this obligation is such, that whereas said John Belcher has caused the goods and estate of said Marion Pearce to be attached as the estate of John F. Costello to the value of ten thousand dollars, to be attached on mesne process, in a civil action, by virtue of a writ bearing date the fifth day of February, A. D. 1875, and returnable to the Superior Court next to be holden at Boston within and for the county of Suffolk, on the sixth day of April next; in which said writ said John Belcher is plaintiff, and said John F. Costello is defendant; and whereas the said defendant wishes to dissolve the said attachment, according to law, on one house and the land attached, being numbered 26 Cooper Street in said Boston, from said attachment,

"Now, therefore, if the above bounden Marion Pearce and John F. Costello shall pay to the plaintiff in said action the amount of thirty-six hundred dollars, if he shall recover so much therein, or any amount not exceeding thirty-six hundred, within thirty days after the final judgment in said action, then the above written obligation shall be null and void; otherwise to remain in full force and virtue.

"Marion Pearce. [Seal.]

"John F. Costello. [Seal.]

"William P. Schell. [Seal.]

"Isaac Judson. [Seal.]

"Signed, sealed and delivered in presence of

"John F. Fenton,

"J. E. Fitzgerald,"

"Suffolk, ss. Feb. 25, A. D. 1875.

[EDITOR'S NOTE: TEXT WITHIN THESE SYMBOLS [O> * IS OVERSTRUCK IN THE SOURCE.]

The third count charged the defendant with making, and the fourth count with uttering, a bond of the tenor following:

"Know all men by these presents, that we, Amelia H. Costello, of Boston, in the county of Suffolk and Commonwealth of Massachusetts, wife of John F. Costello (53 Maverick Street), as principal, and William P. Schell, of Chelsea, in Suffolk County, residing at 24 Linwood Avenue, doing business at 23 Doane Street, Boston, as surety, are holden and stand firmly bound and obliged unto James M. Carter, in the full and just sum of one hundred dollars, to be paid unto the said Carter, his executors, administrators or assigns; to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated at Boston, the eleventh day of March, in the year of our Lord one thousand eight hundred and seventy-five.

"The condition of this obligation is such, that whereas the said Carter, by the consideration of the Justices of the Municipal Court of the city of Boston, holden at said Boston, within and for the county of Suffolk, for civil business, on the tenth day of March, in the year of our Lord one thousand eight hundred and seventy-five, recovered judgment against the said Amelia H. Costello, for the sum of one cent damages, and costs of suit, taxed at twelve dollars and thirty-seven cents, also for a return irrepleviable of the goods described in the writ, to wit, one set china, lavender-band crockery ware, comprising dinner set, in a personal action, brought by said Amelia H. against said Carter, in which the said Amelia H. set her damages at two hundred and fifty dollars. From which judgment the said Amelia H. appealed to the Superior Court to be holden at said Boston, within and for the county of Suffolk, for the transaction of civil business, on the first Tuesday of April next. Now if the said Amelia H. Costello shall do and prosecute her said appeal at said Superior Court with effect, and pay all such costs as may arise after said appeal, then this obligation to be void; otherwise to abide in full force, power and virtue.

"Amelia H. Costello. [Seal.]

"Wm. P. Schell. [Seal.]

"Signed and sealed in presence of

"J. L. Eldridge, to A. H. C.

"W. T. Connolly to W. P. C."

In the Superior Court, before the jury were empaneled, the defendant moved to quash the indictment for the following reasons:

"1. The indictment, as to all the counts, is wanting in due precision and certainty in not setting forth how the bonds were required, how they could be given, or how they could be effective for any purposes, or how they could be valid for the purposes intended.

"2. There is nothing set forth therein to bring the false making of the instruments within the St. of 1870, c. 291, §§ 2, 3, 4, 5, 6, or any other specific statute.

"3. There is nothing therein set forth to show that the false instruments are such as, if genuine, would be valid for the purposes intended.

"4. The want of validity or value of the instruments appears on their face; the instrument of the first and second counts, because it does not appear to have been approved by John Belcher, or by the proper officer, or by any person; nor does the notice required by law appear to have been waived, and because said instrument could not effect any fraud.

"5. The condition inserted in the instrument is not the condition required by the statute, and it does not appear that the instrument was given, or could be given, by the defendant, in accordance with the provisions of the statute.

"6. The indictment avers the false making of a bond, and not the false making of a bond or writing obligatory; the words or writing obligatory' being descriptive of the word bond in the statute, and the word bond' is broader.

"7. There are no such averments therein of other facts, not expressly mentioned in the statutes, as will bring the case within the true meaning of the statutes.

"8. Because the third and fourth counts allege the false making of a bond, and the instrument appears to be a recognizance and a record of a court.

"9. Because it is no offence to utter and publish a false instrument of no validity.

"10. Because the first and second counts set forth two felonious acts, and the third and fourth counts two other distinct and felonious acts, and the same are not parts of the same act or transaction, and said counts are improperly joined.

"11. Because there is no averment that the different counts describe the same act or transaction."

Colburn, J., overruled the motion, and the defendant excepted. The defendant was then tried, and a bill of exceptions, in substance as follows, was allowed:

The judge declined to order the government to enter a nolle prosequi as to either count or set of counts, or to elect upon which it would proceed, or to grant a separate trial, holding the two distinct felonies to have been rightfully joined. It was conceded that the two felonies charged in the different counts were separate, distinct and independent, and not depending on the same facts or transactions, save that the same person signed as William P. Schell in each bond. The forgery relied upon by the government at the trial consisted, as was claimed, in the fact that a person, whose name was actually Frank Hayes, signed under an assumed or a fictitious name as one of the sureties, signing himself as Wm. P. Schell, in the presence, and by the procurement, of the defendant, with the intent to defraud, the said name of Wm. P. Schell representing, and intending to represent, no other existing person.

The suits, in which the bonds were given, are sufficiently described in the conditions of the same. By the return of the officer in the suit of Belcher against Costello, it appeared that real estate was attached as belonging to the defendant, but standing in the name of Marion Pearce. None of the proceedings in the other suits were put in evidence, except the bond.

The government was allowed to introduce in evidence, against the defendant's objection, a written application to Mr. Fitzgerald, the master in chancery, for the dissolution of the attachment in said suit, the same being personally presented by the defendant to the magistrate, but never signed; also the appraisal of the three appraisers appointed by Mr. Fitzgerald, and sworn by him, and the bond itself, with proof that the latter had been delivered to the clerk of the court where the suit was returnable.

The defendant objected to the admission of the bond to dissolve, because of a variance; the copy embodied in the indictment showing an approval erased, and the paper procured having an approval not erased. The judge overruled the objection.

The government put in evidence the notice to Belcher, and an officer's return thereon, with evidence that the same was duly returned to the magistrate; it then was allowed to show against the defendant's objection, that no service was made on Belcher, but that one McMahan personated Belcher falsely, and that said Hayes, by arrangement with McMahan, and (as was contended upon...