COMMONWEALTH v. HENRY. SUPREME JUDICIAL COURT OF MASSACHUSETTS. [Reported 118 Mass. 460.] 1875. DEVENS, J.1 The last sentence of the instruction given by the judge, in response to the request of the defendant, "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, it would be a forgery," would undoubtedly, if it stood alone, be a defective statement of the law. But it is not to be separated from the sentence which precedes it, which distinctly states that there must be an intent to defraud, and, as thus connected, the obvious meaning of the instruction, and so it must have been understood by the jury, was that if the defendant signed the note under the circumstances supposed, intending thereby to defraud, this would be a forgery, even if he expected to be able to meet the note when due. The subject to which the request of the defendant was apparently intended to call the attention of the presiding judge, was the effect of his possession of the means and of his intention to take up the note when due, and in relation to this the statement of the law was correct. The intention of one who utters a forged note to take it up at maturity, and the possession of means which will enable him to do so, do not rebut the inference of intent to defraud, which is necessarily drawn from knowingly uttering it for value to one who believes it to be genuine, nor deprive the transaction of its criminal character. Commonwealth v. Tenney, 97 Mass. 50. Exceptions overruled. LASCELLES v. STATE. SUPREME COURT OF GEORGIA. 1892. [Reported 90 Gå. 347.] THE indictment charged that Sidney Lascelles did falsely and fraudulently draw, make and forge a certain bill of exchange (setting it out) in the fictitious name of Walter S. Beresford, when his real and true name was Sidney Lascelles, with intent then and there to defraud Hamilton & Company, a mercantile house, etc. The bill of exchange purported to be a check for two hundred pounds on a London bank in favor of Hamilton & Co., signed "Walter S. Beresford." 2 1 Only so much of the opinion as discusses the intent to defraud is given. — Ed. 2 Only so much of the case as discusses the question of the signing by defendant of a name previously assumed by him is given.- Ed. LUMPKIN, J. . . . Several grounds of the motion for a new trial are based upon the failure and refusal of the court to charge, in effect, that if the name signed by the accused, although not his own, was one which he had been accustomed to employ and under which he had done business, the jury could not convict him. It was insisted that, in order to constitute forgery, the name must have been assumed for the sole purpose of defrauding the persons alleged to have been defrauded. We think it immaterial for what purpose the name was originally assumed and used, if it is shown that in the instance in question it was used to defraud. It was a fictitious name, within the meaning of the statute (Code, § 4453), if the accused gave it a fictitious character which was calculated and intended to deceive by imparting an apparent value to the writing which might not otherwise attach to it in the minds of the persons with whom the accused was dealing. Where one has been accustomed to use a certain assumed name, it is not to be implied merely from his signing such name to a bill of exchange or other writing that the purpose is to defraud; it is not forgery unless there is something else besides the mere signing to show that the fictitious character of the name is in that instance an instrument of fraud. In the case of Dunn, 1 Leach C. C. 57, and Reg. v. Martin, 49 L. R., C. C., 244, cited for the plaintiff in error, there was no such showing made. In the present case, however, the accused, at the time of signing the writing, gave a fictitious character to the name, upon the faith of which he induced the parties with whom he was dealing to give value for the writing. According to his representations to them, it was the name of the son of Lord Beresford, an English nobleman of great wealth, who was about to deposit in bank $25,000 in the name of this son. When Mr. Hamilton hesitated about paying the money, the accused said: "Our name can command any amount of money in England." He not only used an assumed name, but, in connection with the signing of the writing in question, gave a fictitious character to the name, and impersonated that character in order to obtain money upon the writing, which he might not have gotten if he had simply represented himself to be Walter S. Beresford, or had stopped with the representations he had made as to his own wealth, without making these additional representations as to his relationship and standing. The parties with whom he was dealing paid over their money to the supposed son of Lord Beresford, upon the faith of a writing executed by the accused in that character, when, as it afterwards turned out, the name used was not his own name, and Lord Beresford had no son of the name used. There being no such son, it was not a case of personating another, as contemplated by section 4596 of the code. It was the personating of a fictitious person, and this is of the essence of the offence described in the section upon which the first count of this indictment was based. Code, § 4453. CHAPTER XIV. CRIMINAL CONSPIRACY. SECTION I. Under Ancient Statutes. 33 Edw. I. Stat. 2; [Ordinance of Conspirators.] Conspirators be they that do confeder or bind themselves by oath, covenant, or other alliance, that every of them shall aid and bear the other falsely and maliciously to indict, or cause to indict, or falsely to move or maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved; and such as retain men in the country with liveries or fees for to maintain their malicious enterprises and to drown the truth; and this extendeth as well to the takers, as to the givers. And stewards and bailiffs of great lords, which by their seigniory, office, or power, undertake to bear or maintain quarrels, pleas, or debates that concern other parties than such as touch the estate of their lords or themselves. This ordinance and final definition of conspirators was made and accorded by the King and his Council in his Parliament the thirty-third year of his reign. MICH. 8 Jac. Regis, the case between Stone, plaintiff, and Ralph Waters, Henry Bate, J. Woodbridge, and many other poulterers of London, defendants, for a combination, confederacy, and agreement betwixt them falsly and maliciously to charge the plaintiff (who had married the widow of a poulterer in Gracechurch Street) with the robbery of the said Ralph Waters, supposed to be committed in the county of Essex, and to procure him to be indicted, arraigned, adjudged, and hanged, and in execution of this false conspiracy, they procured divers warrants of justices of peace, by force whereof Stone was apprehended, examined, and bound to appear at the assizes in Essex; at which assizes the defendants did appear and preferred a bill of indictment of robbery against the said plaintiff; and the justices of assize hearing the evidence to the grand jury openly in court, they perceived great malice in the defendants in the prosecution of the cause; and upon the whole matter it appeared, that the plaintiff the whole day that Waters was robbed, was in London, so that it was impossible that he committed the robbery, and thereupon the grand inquest found ignoramus. And it was moved and strongly urged by the defendants' counsel, that admitting this combination, confederacy, and agreement between them to indict the plaintiff to be false, and malicious, that yet no action lies for it in this court or elsewhere, for divers reasons. 1. Because no writ of conspiracy for the party grieved, or indictment or other suit for the King lies, but where the party grieved is indicted, and legitimo modo acquietatus, as the books are F. N. B. 114 b; 6 E. 3, 41 a; 24 E. 3, 34 b; 43 E. 3, Conspiracy 11; 27 Ass. p. 59; 19 H. 6, 28; 21 H. 6, 26; 9 E. 4, 12, &c. 2. Every one who knows himself guilty may, to cover their offences, and to terrify or discourage those who would prosecute the cause against them, surmise a confederacy, combination, or agreement betwixt them, and by such means notorious offenders will escape unpunished, or at the least, justice will be in danger of being perverted, and great offences smothered, and therefore, they said, that there was no precedent or warrant in law to maintain such a bill as this is. But upon good consideration, it was resolved that the bill was maintainable; and in this case divers points were resolved.1 3. It is to be observed that there was means by the common law before indictment to protect the innocent against false accusations, and to deliver him out of prison. . . . And it is true that a writ of conspiracy lies not, unless the party is indicted, and legitimo modo acquietatus, for so are the words of the writ; but that a false conspiracy betwixt divers persons shall be punished, although nothing be put in execution, is full and manifest in our books; and therefore in 27 Ass. p. 44, in the articles of the charge of inquiry by the inquest in the King's Bench, there is a nota, that two were indicted of confederacy, each of them to maintain the other, whether their matter be true, or false, and notwithstanding that nothing was supposed to be put in execution, the parties were forced to answer to it, because the thing is forbidden by the law, which are the very words of the book; which proves that such false confederacy is forbidden by the law, although it was not put in use or executed. So there in the next article in the same book, inquiry shall be of conspirators and confederates, who agree amongst themselves, &c. falsly to indict, or acquit, &c. the manner of agreement betwixt whom, which proves also, that confederacy to indict or acquit, although nothing is executed, is punishable by law: and there is another article concerning conspiracy betwixt merchants, 1 The first two points, not relating to the Law of Conspiracy, are omitted. and in these cases the conspiracy or confederacy is punishable, although the conspiracy or confederacy be not executed; and it is held in 19 R. 2, Brief 926, a man shall have a writ of conspiracy, although they do nothing but conspire together, and he shall recover damages, and they may be also indicted thereof. Also the usual commission of oyer and terminer gives power to the commissioners to inquire, &c. de omnibus coadunationibus, confœderationibus, et falsis alligantiis; and coadunatio is a uniting of themselves together, confœderatio is a combination amongst them, and falsa alligantia is a false binding each to the other, by bond or promise, to execute some unlawful act in these cases before the unlawful act executed the law punishes the coadunation, confederacy, or false alliance, to the end to prevent the unlawful act, quia quando aliquid prohibetur, prohibetur et id per quod perven itur ad illud: et affectus punitur licet non sequatur effectus; and in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it. Hil. 37 H. 8, in the Star Chamber a priest was stigmatized with F. and A. in his forehead, and set upon the pillory in Cheapside, with a written paper, for false accusation. M. 3 & 4 Ph. & Ma., one also for the like cause fuit stigmaticus with F. & A. in the cheek, with such superscription as is aforesaid. "Vide Proverb' 1. Si te lactaverint peccatores et dixerint, veni nobiscum ut insidiemur sanguini, abscondamus tendiculas contra insontem frustra, &c. omnem pretiosam substantiam reperiemus et implebimus domus nostras spoliis, &c. Fili mi, ne ambules cum eis, &c. pedes enim eorum ad malum currunt, et festinant ut effundant sanguinem." And afterward upon the hearing of the case, and upon pregnant proofs, the defendants were sentenced for the said false confederacy by fine and imprisonment. Nota, reader, these confederacies, punishable by law, before they are executed, ought to have four incidents: 1. It ought to be declared by some manner of prosecution, as in this case it was, either by making of bonds, or promises one to the other; 2. It ought to be malicious, as for unjust revenge, &c. 3. It ought to be false against an innocent: 4. It ought to be out of court voluntarily. |