Commonwealth v. Howe

132 Mass. 250 | Mass. | 1882

C. Allen, J.

1. The defendant moved to quash this indictment, on the ground that there is no averment, in each and every count, of the purpose for which the defendant sought to get into her possession the property alleged in the indictment. In support of this motion, it has been argued that the indictment is defective in not averring that the false pretences were made with a view to induce the party alleged to have been defrauded to pay to the defendant as a deposit the money thereinafter mentioned.

It has been held that an indictment for obtaining money or goods by false pretences must set forth distinctly, first, that there was an actual transaction between the parties, a payment of money, or delivery of property; second, that it was the defendant’s purpose, in making the false pretences, to effect such a transaction; and, third, that the party alleged to have been defrauded was actually deceived by the false pretences. Indictments in several cases have been held defective for want of some one or more of these particulars. Commonwealth v. Strain, 10 Met. 521. Commonwealth v. Lannan, 1 Allen, 590. Commonwealth v. Goddard, 4 Allen, 312. In the present case, the indictment in each count sets forth that the defendant made certain false pretences, and then and there asked and requested said (naming the person defrauded) in consideration thereof to pay and deliver to her, said defendant, the money in question. This averment, though not in the usual form, is sufficient to show the defendant’s purpose in making the false pretences.

2. The third count charges that the defendant obtained by false pretences the sum of one thousand dollars from one Bailey; and the proof was, that Bailey paid and delivered to the defendant “ the sum of seven hundred and sixty dollars, and that in the form of a certificate of deposit of a bank in Philadelphia.” It is objected that this was a variance; and this objection must prevail. We must assume that the defendant obtained from Bailey a certificate of deposit of a bank in Philadelphia, for the sum named. The variation in amount is immaterial; but an averment of obtaining a sum of money by false pretences is not supported by proof of obtaining a certificate of deposit of a bank. It is provided by statute that in certain enumerated cases this would be no variance. Gen. Sts. c. 161, § 42; Pub. Sts. c. 203, § 44. These statutes do not apply to an indictment for obtaining money by false pretences. The general rule, that property must be accurately described, is therefore applicable here.

3. The objection most relied on in argument is, that evidence was admitted to show that the defendant had received from other persons than those named in the indictment the sum of about two hundred and fifty thousand dollars, and had given notes and deposit-books therefor. It is contended that there is no logical connection between, this evidence and the matter to be proved. There was no request for a ruling that the whole evidence in the case was insufficient to warrant a conviction; and the bill of exceptions does not purport to set out the whole evidence. The government was to establish by circumstantial evidence a negative; namely, that there was no such great fund as represented; that no such institution was established to administer said fund; that there was no branch department of such institution in Boston; and that the defendant was not the president of such branch department. There was evidence that Mr. Russ, her assignee in insolvency, told her that there was a deficiency of property, to the amount of about one hundred and seventy-five thousand dollars, and urged her to tell him if she had any means to make up this deficiency, and about the circumstances of the institution, and in regard to its directors; and that she refused to give to him any information as to any of these particulars. Without now looking further than is indicated by the evidence which appears to have been introduced, it is obvious that such refusal by her to account for so large an alleged disappearance of property, or to give any particulars in relation to the circumstances or management of the alleged institution, coupled with the evidence, which was objected to, that in point of fact she had obtained two hundred and fifty thousand dollars from other persons as deposits in the alleged institution, and with proof also that this amount had mostly disappeared, and that no trace could be found of any such institution, or of her disposition of the money, would have a legitimate tendency to establish the main proposition, that her representations in regard to the existence of such institution were false. In judging of the relevancy of circumstantial evidence, each circumstance is not to be taken by itself, but in'connection with all the others. Each circumstance may by itself be trifling; in combination, they may be strong. It is only necessary in this case for the court to be able to see that the evidence which is objected to, when taken in connection with other facts which were or may have been testified to, would have some natural connection with the fact to be proved; and this, we think, abundantly appears.

4. In order to negative the averment of an intent to cheat and defraud, the defendant offered evidence to show that she often refused to receive money from other persons who sought to make deposits, when such applicants did not come within certain prescribed rules; and that she kept her agreements with her depositors and paid her obligations as they became due, until she was prevented from doing so by attachment and arrest; but this evidence was excluded. Being charged with obtaining certain moneys by false pretences, it was no defence to show that she might have obtained other moneys from other persons by similar pretences, and omitted to do so; or that in cases where she had obtained other moneys, either by false pretences or otherwise, she had repaid the same. Such facts, if proved, would have no tendency to show that she did not obtain these moneys charged in the indictment; or that she did not make the representations charged; or that the representations were true. If a deposit or loan was pressed upon her, and she refused to receive it until overborne by the persistency of the applicant, or if she repaid a deposit or loan when it became due, such fact in either case might have a legitimate tendency to show that she did not obtain such particular deposit or loan by false pretences. But the fact that she did not obtain certain particular deposits or loans, however numerous, by false pretences, is not legitimate matter of defence against an indictment charging her with obtaining other deposits or loans in that manner.

5. No error is apparent in the admission of the statements of the defendant to Mr. Russ. It is in the first instance a question for the presiding judge to determine upon the admissibility of the evidence in such cases. So far as we can see, Mr. Russ had done enough to remove from the defendant’s mind any impression caused by his former interview. It was still open to the defendant to ask for an instruction to the jury, that, if they were of the opinion that she was under the influence of inducements held out by Mr. Russ, they should disregard her statements. No such request was made. Not now considering, therefore, whether in point of fact anything shown to have been said by the defendant could be regarded as a confession, it does not appear that there was any sufficient ground to exclude her statements.

6. The averments in the indictment of requests by the defendant for the deposits need not be literally proved. The bill of exceptions, indeed, does not distinctly state that there was no evidence to prove the requests in the very words charged; but only that the request for instructions assumed the fact to be so. The decision, however, need not rest on this narrower ground.

Exceptions sustained as to third count; overruled-as to the others.