Commonwealth v. Goldsmith

DeCourcy, J. The indictment charged the defendant with uttering “ a certain forged instrument purporting to be a stock certificate.” In response to his motion for a statement of the “ tenor of the instrument . . . purporting to be a stock certificate, . . . What proper name or names, if any, . . . were forged . . .’’and other particulars, the Commonwealth set out a certificate for twenty-four shares in the capital stock of the Adrian Water Company, with the usual assignment on the back; and specified “ 3. The signature claimed to be a forgery is that of Henrietta Goldsmith appearing on the reverse side of the certificate and purporting to be the execution by Henrietta Goldsmith of the transfer or assignment of the shares of stock represented by said certificate.” At the close of the evidence, the de — 162 — fendant moved for a directed verdict “ on the ground that there is.not sufficient evidence to warrant a verdict of guilty.” His main exception is to the judge’s refusal to grant this motion. Considering the motion as one addressed to the merits, which it purports to be, there was no error in denying it. The stock of the Adrian Water Company belonged to the defendant’s mother, Henrietta Goldsmith; and there was evidence that it was not given or transferred to him during her lifetime. He admitted writing her name on the back; although he said this was done in 1910, and that his own name as witness was not placed thereon until 1917. She died in 1916. He sold the stock as his own in 1917. In the opinion of the expert, the two signatures were written by a man, but with an apparent attempt to make it appear that one was written by. a woman. Further analysis of the testimony seems unnecessary in view of the fact that, at the hearing of the motion for a new trial, the defendant waived his first and second assignments of causes, namely that the verdict was against the evidence, and against the weight of the evidence. It is now urged that the motion for a directed, verdict should have been granted on the ground of a variance; the indictment charging the uttering of a forged stock certificate, and the proof relating to an assignment and transfer. If that issue had been raised at the trial, it might be necessary to determine whether the single sheet of paper, embodying in the usual form a statement of ownership on one side and a transfer form on the reverse, is not a “ stock certificate ” within the meaning of G. L. c. 267, § 1; or whether the variance at most would not be harmless under our statutes. See G. L. c. 277, §§ 22, 34, 35. But it is apparent from the record that no alleged variance was claimed at the trial. After the filing of the motion and particulars above described, the specific certificate, with transfer on one side, was put in evidence. Throughout the trial the entire instrument was referred to by counsel as the “ certificate; ” the only forgery involved was that of “ Henrietta Goldsmith,” on the reverse side thereof; the rulings requested by the defendant specifi — 163 — cally referred to this name as written “ on the certificate; ” and throughout the charge (to which no exception was taken) the judge referred to the alleged forgery as that of “ this certificate.” The language of the motion for a directed verdict shows that it was based upon the alleged insufficiency of the evidence. It did not raise, and apparently was not intended to raise, the issue of variance. The defendant cannot now for the first time import the question of variance into the motion. Gillard’s Case, 244 Mass. 47, 55, 56. Commonwealth v. Williams, 244 Mass. 515, 521. The claim of variance was made for the first time at the hearing on the motion for a new trial. It could not then be raised as matter of right. Commonwealth v. Morrison, 134 Mass. 189. Commonwealth v. Borasky, 214 Mass. 313, 321. Hallet v. Jordan Marsh Co. 240 Mass. 110. There was no reversible error in the refusal to give the third, fourth and fifth requests. The subject matter thereof, so far as applicable to the facts in evidence, was covered by the charge and in terms sufficiently favorable to the defendant. Exceptions overruled.