State v. Shurtliff , 18 Me. 368 ( 1841 )

The opinion of the Court was drawn up by

Weston C. J.

It was the law of Massachusetts, prior to the separation of Maine, and has continued to be the law of both states since, that the party, whose name is alleged to have been forged, is a competent witness upon the trial, under an indictment for the forgery. Commonwealth v. Snell, 3 Mass. R. 82.

The party attempted to be defrauded, was permitted to testify that the defendant, at a prior period, brought to him the draft of a deed, which he, the witness, read, and that it was not the deed set forth in the indictment, which he afterwards signed. This was not proving, by parol, the contents of a deed, not produced. It was competent for the witness to testify, that he never saw the deed-he signed, before it received his signature ; and that the defendant had previously brought to him the draft of an instrument, which he saw and read. The first is a simple negation, the second is testimony of the acts both of the defendant and the witness. The draft seen and read by him was not an executed paper, which is the best evidence of the contract made or agreed, the contents of which can be proved only by its production. 2 Russell, 670. But whether its contents could be proved or not, we are satisfied that the testimony, as far as it was received, was legally admissible.

Forgery has been defined to be a false making, a making malo animo, of any written instrument, for the purpose of fraud and deceit. 2 Russell, 317, and the authorities there cited. The evidence fully justifies the conclusion, that the defendant falsely made and prepared the instrument, set forth in the indictment, with the evil design of defrauding the party, whose deed it purports to be. It is not necessary, that the act should be done, in whole or in part, by the hand of the party charged. It is sufficient, if he cause or procure it to be done. The instrument was false. It purported to be the solemn and voluntary act of the grantor, in making a conveyance, to which he had never assented. The whole was done by the hand, or by the procurement of the defendant. It does not lessen the turpitude of the offence, that the party whom he sought to defraud was made in part his involuntary agent, in effecting his purpose. If he had employed any other hand, he would have been responsible for the act. In truth the signature to that false instrument, in a moral and legal point of view, is as much imputable to him, as if he had done it with his own hand. The art and management used, has no tendency to mitigate the charge. And the opinon of the Court is, that the crime of forgery has been committed. When the false making, with an evil design is proved, artful subterfuges in defence have been disregarded, of which many of the cases, cited for the government, are illustrations.