Commonwealth v. Dallinger

Wells, J. • It appearing in evidence at the trial that there was but one A. P. Morse, it followed that the writing which pur [441] ported to be signed by him, purported also to be payable to hia own order. Such a writing would not constitute a contract, and therefore would not become a promissory note until indorsed by him. With this fact in the case, all the allegations of the first and second counts being sustained by proof, the offence of forgery, or uttering a forged promissory note, would not be made out. The exceptions must therefore be sustained as to the first and second counts. The third count is for forging the indorsement of the name of A. P. Morse, upon the samé note. With that indorsement it purported to be a valid contract, and was, in form, a promissory note. Both the body of the note and the indorsement are set out in the indictment. The allegation that the defendant forged the indorsement upon a promissory note may well be sustained, although the writing became a promissory note only by means of such indorsement. The principal allegation may be taken to have reference to the character of the instrument when so indorsed. In setting forth the instrument and the indorsement, the designation of the face of the writing as the note may be taken to have been by way of distinction merely, and not as qualifying or limiting the sense of the previous allegation. As to this count the exceptions are Overruled.