Commonwealth v. Hulbert

Dewey, J. The court are of opinion that this indictment may be sustained. We have more particularly considered the second count, upon which judgment may be entered. 1. The false pretences set forth in this count are such as might have been effectual in accomplishing a fraud upon Nathan Holton, in the manner alleged. The allegation, that the paper offered, and purporting to be a bank bill for the payment of ten dollars, was a good bill, and of the value of ten dollars, was virtually an allegation that it was a genuine bill of some real bank, and not counterfeit; when, in fact, it was a counterfeit, or a spurious bill not issued by any hank having a real existence. 2. This indictment may be well sustained, although the word “ knowingly ” is omitted in the allegation of the false pretences. The words used are “ designedly and unlawfully did falsely pretend.” The word “ knowingly ” is more usually introduced into indictments of this character. But the offence is thus described in the Rev. Sts. c. 126, § 32: “ If any person shall designedly, by any false pretence, and with intent to defraud, obtain from any other person, any money, or any goods,” &c. “ he shall be punished,” &c. The charge is set out, in the indictment, in such language as sufficiently describes the statute offence ; and the indictment is not bad by reason of the omission of the word “ knowingly.” 3. It was suggested in argument, though not mentioned in the written motion, that the second count is defective in not alleging more particularly the intent to defraud Nathan Holton; as it only alleges the general intent to cheat and defraud. The Rev. Sts. c. 127, § 14, fully authorize such form of allegation. 4. Nor is there any objection to the indictment as bad for duplicity, if that objection were open to the defendant on a niotion in arrest of judgment. The offence of uttering a counterfeit bank bill, although it may be embraced within the necessary proof to establish the guilt of the party in the case, yet is not technically charged in the indictment. It is [449] only incidental to the main charge of obtaining goods by false pretences, and does not vitiate the indictment. The motion to arrest the judgment must therefore be overruled, and judgment be entered upon the second count in the indictment.