Commonwealth v. Begun, 102 N.E.3d 1030, 92 Mass. App. Ct. 1125 (2018)

Feb. 2, 2018 · Massachusetts Appeals Court · 17–P–528

102 N.E.3d 1030, 92 Mass. App. Ct. 1125

COMMONWEALTH
v.
H. Keith BEGUN.

17-P-528

Appeals Court of Massachusetts.

Entered: February 2, 2018

MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28

After a trial, a jury convicted the defendant of violating G. L. c. 267, § 1,² for submitting a falsified bill of sale to his employer, the town of Shirley, for reimbursement. On appeal, both the defendant and the Commonwealth agree that count 1 of the complaint was defective for failing to allege sufficient facts that would constitute a violation of G. L. c. 267, § 1. To sustain a conviction under G. L. c. 267, § 1, the Commonwealth must prove that the defendant "with intent to injure or defraud, falsely ma[de], alter[ed], forge[d] or counterfeit[ed]" one of the instruments enumerated therein. Commonwealth v. Levin, 11 Mass. App. Ct. 482, 493 (1981). As the parties correctly note, a bill of sale is not one of the instruments named in the statute. Thus, due to this defect, the District Court had no jurisdiction over count 1 of the complaint. See Commonwealth v. Dykens, 473 Mass. 635, 648 (2016), quoting from Commonwealth v. Cantres, 405 Mass. 238, 239-240 (1989) ("Where an indictment fails to allege a fact necessary to constitute an offense, it is defective, and 'no court has jurisdiction to entertain it' "). As such, the defendant's conviction is void and "without legal effect." Commonwealth v. Martin, 476 Mass. 72, 76 (2016) (quotation omitted).

The judgment is vacated, the verdict is set aside, and the matter is dismissed.

So ordered.

Vacated; set aside; dismissed.

2 That statute, as appearing in St. 1986, c. 557, § 190, provides that:

"Whoever, with intent to injure or defraud, falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of a clerk or register of a court, public register, notary public, justice of the peace, town clerk or any other public officer, in relation to a matter wherein such certificate, return or attestation may be received as legal proof; or a charter, deed, will, testament, bond or writing obligatory, power of attorney, policy of insurance, bill of lading, bill of exchange or promissory note; or an order, acquittance or discharge for money or other property or a credit card or an instrument described as a United States Dollar Traveller's Check or Cheque, purchased from a bank or other financially responsible institution, the purpose of which is a source of ready money on cashing the instrument without identification other than the signature of the purchaser; or an acceptance of a bill of exchange, or an endorsement or assignment of a bill of exchange or promissory note for the payment of money; or an accountable receipt for money, goods or other property; or a stock certificate, or any evidence or muniment of title to property; or a certificate of title, duplicate certificate of title, certificate issued in place of a duplicate certificate, the registration book, entry book, or any indexes provided for by chapter one hundred and eighty-five, or the docket of the recorder; shall be punished by imprisonment in the state prison for not more than ten years or in jail for not more than two years."