Commonwealth v. Dunleay

• Decision Date: 23 November 1892
• Citation: 157 Mass. 386,32 N.E. 356
• Parties: COMMONWEALTH v. DUNLEAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 386

32 N.E. 356

COMMONWEALTH v. DUNLEAY.

Supreme Judicial Court of Massachusetts, Bristol.

November 23, 1892

COUNSEL

C.N. Harris, Asst. Atty. Gen., for the Commonwealth.

F.V Fuller, for defendant.

OPINION

LATHROP J.

The paper writing which the defendant is alleged to have uttered and published, knowing the same to have been "false forged, and counterfeit," is not one of those enumerated in Pub.St. c. 204, § 1. This statute does not, however supersede the common law, (Com. v. Ayer, 3 Cush. 150; Com. v. Hinds, 101 Mass. 209, 210;) and the principal question in the case is whether the indictment sufficiently sets forth a forgery at common law. In Com. v Hinds it was said by this court: "In order to maintain an indictment for forgery at common law, it must appear not only that there has been a false making of a written instrument, for the purpose of fraud or deceit, but also that the forged instrument is of such a description that it might defraud or deceive, if used with that intent;" and that, "if the fraudulent character of the forged instrument is not manifest on its face, this deficiency should be supplied by such averments as would enable the court judicially to see that it has such a tendency." See, also, Com. v. Ray, 3 Gray, 441. In the case at bar the instrument set forth as forged is an application for a policy of insurance. It is not a contract, and does not purport to be one. The use which was intended to be made of it does not appear, nor "how it could have been used to the benefit of the defendant or the prejudice of anybody else. *** The mere possibility that it might be used, in some way which can only be surmised, for some undisclosed fraudulent purpose, is not enough to maintain the indictment." 101 Mass. 210, 211. The indictment, therefore, is insufficient. The government, however, contends that this question is not properly before us. It is argued that the defendant can take nothing by his appeal. Pub.St. c. 152,§ 10, provides that "a party aggrieved by a judgment founded upon matter of law apparent on the record, in any proceeding, civil or criminal, except an answer or plea in abatement, or motion to dismiss for defects of form of process, may appeal therefrom to the supreme judicial court." A motion to quash an indictment is not a plea in abatement, and we can hardly suppose that the government seriously contends that it is a motion to dismiss for defect in form of process, although the point is taken on its brief. It was, indeed, once held that an appeal would not lie to this court from an order of the superior court, overruling a motion to quash, before final judgment. Com. v. Hanley, 121 Mass. 377. But it...