Commonwealth v. Henry

• Decision Date: 30 October 1875
• Citation: 118 Mass. 460
• Parties: Commonwealth v. George R. Henry
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 460

Commonwealth v. George R. Henry

Supreme Court of Massachusetts

October 30, 1875

Worcester.Indictment for forgery, charging the defendant in the first count with making, and in the second with uttering a promissory note of the tenor following: "$ 876.Worcester, Mass., July 9th, 1874.Four months after date, I promise to pay to the order of G. R. Henry, eight hundred and seventy-six dollars, at Central National Bank, Worcester.Value received.J. C. Hill."Indorsed "G. R Henry."

At the trial in the Superior Court, before Dewey, J., it appeared upon the production of the note, that the word "Athol" was written in pencil at the extreme bottom of the note, underneath the signature "J. C. Hill," and it did not appear when, nor by whom the word "Athol" was written.

The government contended that the forgery was of the name of J C. Hill, who resided at Athol, Massachusetts, and the defendant moved to dismiss the indictment on the ground of a variance between the note as alleged and the note as proved.

The government introduced evidence that the defendant, when he passed the note, represented that it was signed by John C. Hill, of Athol, a man of property and well known; that it was not so signed, and contended that it was signed by the defendant.This was denied by the defendant, who introduced evidence that the note was signed in good faith by a broker in Providence, Rhode Island, of the name of J. C. Hill; and these questions were submitted to the jury.

There was evidence that the defendant was possessed of property at the time the note was made and passed, which was about the time of its date, and that before it became due, but after it was claimed that it was forged, the defendant paid a portion of the note and gave security for the balance thereof, making a settlement of the note thereby, before its maturity, with the holder thereof, so that he sustained no loss thereby.John C. Hill, of Athol, testified that he had not suffered any loss by reason of the signature to the note.The defendant requested the judge to rule that if the jury were satisfied, upon the whole evidence, that the defendant did not intend to defraud any one at the time when he made or uttered the note, but that he intended and had the means to pay said note when it became due, and would have done so but for the previous settlement of the same, he could not be convicted upon either count.

The judge declined to give the ruling, but instructed the jury as follows: "That to constitute the offence of forgery, it is essential that there be an intent to defraud, but it is not essential that any person be actually defrauded, but there must, at all events, be a possibility of some person being defrauded by the forgery.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, is would be a forgery."

The jury returned a verdict of guilty on both counts; and the defendant alleged exceptions.

Exceptions overruled.

C. A Merrill, for the defendant.1.The burden of proof in cases of forgery does not shift; and if, on the production of a note at the trial, there appears to be a word which is a part of the note not contained in the note described in the indictment, it is a fatal variance.Especially is this so when by the evidence of the government the defendant's representation was that the note was signed by a person of a place the name of which is the very word constituting the variance.The defendant was entitled to the...