Commonwealth v. Dunleay

153 Mass. 330 | Mass. | 1891

Field, C. J.

The usual form of indictments in this Commonwealth for obtaining money or other property by false pretences contains a direct allegation to the effect that the person alleged to have been defrauded believed the pretences to be *332true, and was induced thereby to part with his property. See Commonwealth v. Nason, 9 Gray, 125; Commonwealth v. Jeffries, 7 Allen, 548; Commonwealth v. Lincoln, 11 Allen, 233; Commonwealth v. Hooper, 104 Mass. 549; Commonwealth v. Dean, 110 Mass. 64; Commonwealth v. Coe, 115 Mass. 481; Commonwealth v. Parmenter, 121 Mass. 354; Commonwealth v. Stevenson, 127 Mass. 446; Commonwealth v. Howe, 132 Mass. 250; Commonwealth v. Lee, 149 Mass. 179. The precedents of indictments in England, and in some of the States of this country under statutes similar to ours, appear not to contain such an allegation, except in a form substantially like that found in this indictment. See Train & Heard’s Free. c. 14; 2 Archb. Grim. Pr. & PI. (8th Am. ed.) 1376; 2 Bish. Grim. Proc. (3d ed.) § 162 et seq.

There is at least one case in our reports, in which the only allegation that the person defrauded believed the representations to be true, and was induced thereby to part with his property, is that by means of said false pretences the defendant did then and there unlawfully obtain from him the property described, and the indictment was held sufficient, on motion in arrest of judgment, although the precise point now taken was not considered in the case. Commonwealth v. Hulbert, 12 Met. 446. In the present case we are not, perhaps, required to determine whether the fourth and fifth reasons assigned in the motion to quash would be sufficient if they stood alone, because we think that they must be considered in connection with the sixth and seventh reasons assigned.

The employment of the defendant by the insurance company is alleged to have been “to solicit and obtain applications to said insurance company for insurance, for a compensation to be paid him therefor,” etc.; and in the particular case set out in the indictment it is alleged that the compensation “ would be due him, the said Richard J. Dunleay, upon the acceptance by the said insurance company of the said application for insurance.” The indictment does not allege that this application for insurance was ever accepted by the company. We think that the connection between the false pretence and the obtaining of the money and the bank check is not set out with the technical precision required in this Commonwealth. The indictment should allege *333in some form, distinctly, that the insurance company was deceived by the false pretence, and was induced thereby to accept, and did accept, this application for insurance, and was thereby induced to pay, and did pay, to the defendant money, or deliver to him other property therefor, under his contract of employment. This, we think, has not been done in the manner required by our decisions. See Commonwealth v. Strain, 10 Met. 521; Commonwealth v. Lannan, 1 Allen, 590; Commonwealth v. Goddard, 4 Allen, 312, It is unnecessary to consider the other objections contained in the bill of exceptions. Exceptions sustained.

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