In an indictment for the forging of an acquittance, it is not necessary to allege that any goods were delivered in consideration of such acquittance: the false making, with intent to defraud, is the gist of the offence.
To a bill of parcels of the following tenor, viz., "Mr. J. -- Bought of E. & C. -- The above charged to G. C.," the purchaser, J. L., added these words, "By order, E. & C.," -- and it was held that this addition amounted to an acquittance of J. L., and was a forgery within the statute of 1804, c. 120, § 1.
This was an indictment for forgery, upon the statute of 1804, c. 120, § 2; and the evidence to prove the forgery, as it was reported by Wilde, J., before whom the cause was tried, October term, 1817, was in substance as follows: --
It appeared that the defendant applied to Eveleth & Child for a certain quantity of iron on account of one George Carpenter, and that thereupon the said E. & C. did deliver to the defendant 2 quarters 18 pounds of iron, and gave him a bill thereof of the following tenor, viz.: "Augusta, 13th June, 1811. Mr. John Ladd -- Bought of Eveleth & Child -- 2: 18 Swedes iron -- $ 4.80 -- The above charged to Geo. Carpenter;" which bill the defendant afterwards produced in evidence, in a trial relative to the sale and delivery of said iron; and which was then altered by adding thereto the words, "By order -- Eveleth & Child;" the original bill being in the handwriting of the said Child, and the addition being not in the handwriting either of the said Eveleth or the said Child. The defendant contended that the alteration was not material, as it did not essentially vary the legal effect of the bill. But the judge instructed the jury that; it they believed, from the evidence, that the alteration was made by the defendant with an intent to defraud the said E. & C., such alteration was a forgery, sufficient to support the indictment. And a verdict being returned against the
defendant, his counsel excepted to the said instruction, and moved for a new trial on account thereof. The defendant also moved an arrest of judgment, because the facts charged did not amount to forgery within the statute; and because there was no allegation, in the indictment, that any goods were delivered, of which the paper alleged to have been forged was a discharge or acquittance.
Davis, Solicitor-General, for the commonwealth.
Longfellow and Emmons for the defendant.
Curia. The objection to the indictment is, that it contains no averment that the paper alleged to be forged was presented or delivered to any one, as a true or genuine acquittance or discharge for goods delivered in consideration thereof. This is not necessary at the common law, or under our statute. The false making, with intent to defraud, is the gist of the offence. [Note 1] [Note a]
On the motion for a new trial, it is insisted that the paper, given in evidence to prove the forgery, is not an acquittance or discharge within the intent of the statute, and therefore did not prove the offence. But we are of opinion that the paper forged is rightly described. It purports to be an acknowledgment, by Eveleth & Child, that the goods delivered to the defendant were charged to Carpenter by his order; and this amounted, in law, to an acquittance or discharge of the defendant. [Note b]
Both the motions were thus overruled; but, from some palliating circumstances connected with the transaction, the Court were induced to continue the indictment, to await the effect of an application, on behalf of the defendant, to the supreme executive, for a pardon.
[Note 1] 3 Inst. 169. -- Ld. Raym. 1466. -- 2 East, C. L. 938, 951, 954, 989.
[Note a] 2 Russ. on Crimes, pp. 317, 318.
[Note b] The words
of the statute are, "any promissory note, order, acquittance, or discharge, for or upon the payment of money, or delivery of goods." It does not appear that the goods were ever charged to the defendant and it is very difficult to imagine how the instrument set forth could be treated as an acquittance or discharge of any one. -- Rex vs. Harvey, R. & R. 227.