48 Mass. 462 | Mass. | 1844
As to the first exception taken to the instructions given to the jury, at the trial, we think the principle stated in Young others v. The King, 3 T. R. 98, referred to by the counsel for the defendant, sustains the ruling, rather than the objection to it. The argument for the plaintiffs in error there was, that the words could not have been spoken by all, and that one of them could not be affected by words spoken by another ; each being answerable for himself only. But it was held, that “ if they all acted together, and shared in the same transaction,” they committed the offence jointly. Grose, J. said, “every crime, which may be in its nature joint, may be so laid. • Here it is stated that all the defendants committed this offence, by all joining in the same plan ; they were all jointly concerned in defrauding the prosecutor of his money.” Now it seems to us, that if two may be indicted for the words spoken by one in the presence of the other, it appearing that they came to act in concert, it establishes the position, that all which is necessary to cause the liability to attach to an individual of having participated in making the false pretences, is his cooperation and acting in concert in the general purpose; and the concert and cooperation may be shown, although one said nothing by way of assenting to, or expressing his concurrence in the false pretences. If this be so, it seems necessarily to follow that if A. procures B. to go to C., and with a false pretence, of which A. is conusant, to obtain the goods of C., A. is guilty in the matter of obtaining these goods by false pretences ; and whether A. be outside or within
The next instruction to the jury, which is objected to, was in these words : “It was not necessary for the government to prove that the defendants, or either of them, obtained the goods on their own account, or that they, or either of them, derived or expected to-derive, personally, any pecuniary benefit therefrom ; but that if the jury were satisfied that the defendants obtained said goods by means of said false pretences, for the sole use and benefit of said P. Harley, this was sufficient to sustain the allegation in the indictment, that the defendants obtained said goods by said false pretences.”
It is not contended by the defendant’s counsel that it was necessary, in order to support the indictment, for the govern ment to prove that the defendant intended any pecuniary gain or personal benefit. That the contrary is the true rule is very clear, and was fully conceded in the argument. But the ground assumed is that of a variance between the matter set forth in the indictment, and the proof showing that the goods were obtained for the sole use of P. Harley. I should doubt, from the report of the case, whether the question of variance was distinctly raised at the trial. The point seems rather to have been, whether a party charged with obtaining goods by false pretences must not be shown to have obtained them thus for his own use or pecuniar) benefit. If however we look at the question as one of variance, we think the exception cannot prevail. The only allegation, which is supposed to conflict with the evidence that the goods were obtained for the use of P. Harley, is this; that the defendants, “ devising and intending by unlawful means to get into their hands and possession,” &c. But the evidence fully sustained the allegation. By means of these false pretences, the defendants did actually obtain and get into their hands and possession these goods; and although they might have had a further
The remaining exception was, that the false pretences were not, as shown by the evidence, made personally to either of the members of the firm of George B. Blake & Co., but to a clerk acting for them in their shop, and by him communicated to one of the firm. This objection was not much relied upon, and it cannot be sustained. It was directly overruled in the case of Commonwealth v. Call, 21 Pick. 515, where it was held that a false representation to an agent who communicates it to his principal, who is influenced by it, is a false pretence to the principal.
Exceptions overruled.
