167 Mass. 144 | Mass. | 1896
The case went to the jury only on certain allegations in two counts, the second and fifth. The allegations in the second count are of false representations to one Martin that the daily receipts of a certain business then carried on by the defendant at a certain shop “then averaged, and for some time theretofore had averaged, from twenty to twenty-five dollars,” and that the defendant “ had occupied said store in carrying on said business for the period of five years theretofore.” It is alleged that Martin was induced by these pretences to pay the defendant three hundred and fifty dollars for one half interest in the business.
The allegations in the fifth count are of false representations to one Day, that the amount of business done by the defendant in a certain shop in Boston “ had been more than four hundred
A great number of points are raised by the exceptions, many of them of a very flimsy character, and we shall confine our discussion to those for which the defendant has offered some reason in argument, or which seem to us important, and shall follow in the main the order adopted by his counsel.
The defendant was sentenced, notwithstanding his exceptions, as required by St. 1895, c. 469. It is suggested that this statute is unconstitutional. No reason is offered for the^suggestion. A statute looking in the same direction has long been in force and unquestioned. Pub. Sts. c. 153, § 12. Commonwealth v. Clifford, 145 Mass. 97, 98. See Jacquins v. Commonwealth, 9 Cush. 279, 280.
The judge was right in refusing to stay the sentence or execution of the sentence, and was not called on to state his reasons for doing so.
It is suggested, again without argument, that St. 1895, c. 504, under which the defendant was sentenced, is unconstitutional. This statute requires the sentence in certain cases to be for a term of not less than two and one half years, and not more than a maximum fixed by the court, and not longer than the longest term fixed" by law for the punishment of the offence. Such a sentence is in effect a sentence for the maximum fixed by the court, unless a permit to be at liberty is issued as provided by § 2. But the form of the sentence is made to recognize and carry out a policy familiar to our legislation and acted on heretofore without question. Pub. Sts. c. 222, § 20. St. 1884, c. 255, § 33. Conlon's case, 148 Mass. 168. Such a form of sentence does not make the punishment more severe than it otherwise would have been, and we see no reason why the law should not be construed to apply to all sentences, in the cases referred to, passed after the act goes into operation. See Jacquins v. Commonwealth, 9 Cush. 279; Upham v. Raymond, 132 Mass. 186; Wood v. Westborough, 140 Mass. 403; Nott v. C. T. Sampson Manuf. Co. 142 Mass. 479.
We may as well say, in this connection, that the representations are sufficient to constitute false pretences. Commonwealth v. Blood, 141 Mass. 571. See Commonwealth v. Wood, 142 Mass. 459, 561. It is not necessary for us to consider nicely whether the latitude allowed to sellers of chattels would apply to representations made as the inducements to enter into confidential relations with the person making them.
Next it is said that there was a variance under the fifth count, because it is alleged that Day was induced by false representations to part with a check for three hundred and eighty-five dollars, whereas it appeared by the evidence that ten dollars of the amount was for that sum in cash handed back by the defendant. But the check was delivered as alleged, and, under the instruc
No exception was taken to the instruction that the defendant was not to be prejudiced because he had not testified, and the instruction was proper. Pub. Sts. c. 169, § 18, cl. 3. Commonwealth v. Harlow, 110 Mass. 411.
The judge was not requested to instruct the jury not to consider the evidence on the counts which were thrown out. If he had been asked to, doubtless he would have done it. No exception was taken on the matter.
The releases of all demands, etc. to the defendant from Martin, one of the defrauded parties, did not purge the crime. Commonwealth v. Coe, 115 Mass. 481, 502, 503.
A previous indictment had been found against the defendant in respect of the fraud on Day, on which a trial had been had and a verdict of guilty rendered, but the verdict had been set aside on the defendant’s motion, and the indictment had been placed on file. These facts were pleaded. The pendency of this indictment is no defence. Commonwealth v. Drew, 3 Cush. 279. Commonwealth v. Cody, 165 Mass. 133. The effect of the' verdict is no greater than if it had been rendered on the fifth count now "before us, and the prevailing view in such a case is, that, when a verdict is set aside on the prisoner’s own motion and for hjs benefit, he may be tried anew. Commonwealth v. Green, 17 Mass. 515, 534. State v. Blaisdell, 59 N. H. 328. Gannon v. People, 127 Ill. 507, 522. Veatch v. State, 60 Ind. 291, 295. People v. Hardisson, 61 Cal. 378. State v. Stephens,