Pettes v. Commonwealth

If an indictment in the first count charges the defendant with the forging of a cer. tain instrument, and in the second count with being an accessory before the fact to the uttering of the instrument by another person, the offence charged in the ' first count is a different offence from that charged in the second count; and a verdict of acquittal on the first count and of conviction on the second count is not repugnant. An indictment in the first count charged the defendant with the forging of a certain instrument, and in the second count charged another person with the uttering of the instrument, and then proceeded to charge the defendant with being an accessory before the fact to such uttering. Held, that the indictment contained but two counts. A formal error in an indictment is cured by verdict and judgment thereon, and cannot be availed of on a writ of error.

Writ .oe error to reverse a judgment rendered for the Commonwealth at March term 1874 of the Superior Court for the county of Suffolk, for the transaction of criminal business, upon the following indictment: “ The jurors for the Commonwealth of Massachusetts, on them oath present, that Spencer Pettes, otherwise called F. S. Pettes, otherwise called Henry J. Woodford, of Boston aforesaid, on the eighteenth day of March in the year of our Lord one thousand eight hundred and seventy-one, at Boston aforesaid, did falsely make, alter, forge and counterfeit a certain false, forged and counterfeit voucher, certificate and accountable receipt for money, which said voucher, certificate and receipt was of the tenor following; that is to say, ‘Taunton, Mass., March 18th, 1871. No. 9. Mrs. Martha Woodford has deposited in the Machinists’ National Bank of Taunton, Mass., ten thousand and one hundred and fifty-two dollars, to the credit of M. Bolles & Co., payable on return of this certificate properly indorsed. $10,152. B. C. Vickery, Cashier.’ With intent thereby then and there to injure and defraud; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. “And the jurors aforesaid for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that one Holden, whose first name is to the jurors unknown, of Boston aforesaid, on the eighteenth day of March, in the year of our Lord one thousand eight hundred and seventy-one, at Boston aforesaid, did utter and publish as true a certain false, forged, altered and counterfeit writing, voucher, certificate and accountable receipt for money, which said writing, voucher, certificate and receipt was of the tenor following; that is to say,1 Taunton, Mass., March 18th, 1871. No. 9. Mrs. Martha Woodford has deposited in the Machinists’ National Bank of Taunton, Mass., ten thousand one hundred and fifty-two dollars, to the credit of M. Bolles & Co., payable on return of this certificate properly indorsed. $10,152 B. C. Vickery, Cashier.’ He, the said Holden, then and there well knowing the said writing, voucher, certificate and receipt to be false, forged, altered and counterfeit as aforesaid, with intent thereby then and there to injure and defraud; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. “ And the jurors aforesaid, on their oath aforesaid, do further present, that Spencer Pettes, otherwise called F. S. Pettes, otherwise called Henry J. Woodford, late of Boston aforesaid, in the county aforesaid, before the said last-mentioned felony and uttering and publishing was committed in manner and form aforesaid, to wit, on the seventeenth day of March in the year of our Lord one thousand eight hundred and seventy-one, at Boston aforesaid, did unlawfully, maliciously and feloniously counsel, hire, aid, move, encourage, command, incite, and in other ways procure said Holden so uttering and publishing as aforesaid the said last-mentioned felony, and uttering and publishing in manner and form aforesaid to do and commit; and thereby became and was then and there an accessory before the fact to the said last-mentioned felony and uttering and publishing; against the peace of the Commonwealth and the form of the statute in such case made and provided.” The record set forth that the indictment was found and returned into court by the grand jury, at February term 1872, and then continued to March term 1872, when the plaintiff in error was arraigned and pleaded not guilty; that the indictment was then continued from term to term to January term 1873, when the plaintiff in error was again airaigned, and for trial put himself upon the country, and the Commonwealth did the like by its attorney; that a jury was duly empanelled and returned a verdict of not guilty on the first count of the indictment, and guilty on the second count; that, after various continuances, the plaintiff in error was sentenced, for the offence set forth in the second count of the indictment, to imprisonment in the state prison for the term of ten years. The assignment of errors was as follows: “ First, that a verdict of guilty was returned on the second count contained in said indictment, and the plaintiff in error was sentenced thereon, and that he was not impleaded nor mentioned in said count, either expressly or by implication. 2d. That the verdict of not guilty on the first count and of guilty on the second count is repugnant, and amounts to an acquittal on both counts.” Plea, in nullo est erratum.