316 Mass. 15 | Mass. | 1944
The defendant Mullaney was convicted at a trial before a judge without a jury upon an indictment which charged him and the defendant McHugh with violating G. L. (Ter. Ed.) c. 266, § 31, in that they did obtain, by a false pretence and with intent to defraud, the signature of one Thompson to a written contract for the sale of her land to Mullaney, the said written contract being of such a nature that the false making of it would be punishable as a forgery. Mullaney and McHugh were also found guilty upon an indictment charging them with conspiracy with the defendant Weathers, Harold M. Chapin and Elsie A. Chapin, between September 1, 1937, and July 1, 1939, to commit the crime denounced by said c. 266, § 31. The first case is here upon appeals by both Mullaney and McHugh with various assignments of error; and the second case is here upon exceptions alleged by both of these defendants. The two indictments already mentioned were tried with
We first consider the two indictments upon which Mullaney was found guilty. He contends that the evidence was insufficient to support a finding of guilty in either case; that the intention of the defendant to suffer a default of the first mortgage would not warrant a conviction; that the evidence of fraud by Mullaney in making out the application for a mortgage loan was not admissible; that the fact that Mullaney had made contracts similar to the Thompson contract would not warrant the inference that he did not intend to make a genuine contract of sale with her; and that the representation as to the use Mullaney intended to make of her property was not material. These contentions and the denial of the thirteenth, fourteenth and sixteenth requests for rulings are the only questions now argued. These requests in effect were for rulings that the judge should disregard any fraud committed by Mullaney in filing the application for the mortgage loan in determining his intent in making the contract with Mrs. Thompson, and that specific acts of misconduct of Mullaney were not admissible to prove character. We confine our discussion to the questions raised by this defendant.
The evidence, if believed, was sufficient to prove the facts that we now state. McHugh for a number of years had
One Mrs. Scheibe owned two parcels of land in Lexington which she had advertised for sale. McHugh and Mullaney saw her early in December, 1937. Mullaney said he intended to buy the place and five there and to develop the vacant land. Mullaney inspected the house, and while he was doing
Neither Mrs. Thompson nor Mrs. Scheibe would have signed the agreements unless they believed that Mullaney was acting in good faith and intended to make a genuine purchase of their properties. Mrs. Thompson reasonably inferred that Mullaney was buying to occupy her property, and a week later Mullaney stated to Mrs. Scheibe that he intended to five upon her premises when he acquired them.
Mullaney entered into a similar contract with one Mrs. Hewins in January, 1938. He was compelled to change the agreement upon the insistence of her attorney. A disagreement arose over the payment of a commission to McHugh. Thereafter, Mullaney and McHugh had no further transactions between them.
It is the contention of the Commonwealth that Mullaney never intended to make any genuine contract with Mrs. Thompson to purchase her property, but that he assumed the false rdle of a purchaser in order wrongfully to appropriate for his own benefit, or for the joint benefit of McHugh and himself, the difference between the amount realized upon the first mortgage and what he was required to pay her in cash, and that the evidence was sufficient to prove that McHugh and Mullaney had entered into a conspiracy to perpetrate similar frauds on other owners of unencumbered lands. The burden was upon the Commonwealth to prove that the contract of sale was not a real business undertaking honestly engaged in for the purpose of enabling a purchaser to acquire a conveyance of the land, but that it was a fraudulent device employed not merely to acquire title to the land but principally to put the so called purchaser in a position where he could reach and appropriate for his own benefit as much of the proceeds of the first mortgage as was not required for the cash payment to the seller.
The representations of Mullaney which led up to the execution of the contract of sale by Mrs. Thompson; his statements to her a few days thereafter when he again looked over the property ostensibly for the purpose of contemplating what repairs should be made for fitting up the premises for a restaurant which he told her would cost $1,200; the making, within three days of the contract, of false statements upon the application for a loan at the bank; the agreement with Mrs. Thompson made at the time of the conveyance on December 22, 1937, that she might occupy the property
The judge could find upon all the evidence, as he impliedly did, that Mullaney had falsely assumed the character of a bona fide purchaser and had by his conduct and representations — all of which were admissible — designedly misled Mrs. Thompson into believing that he was making a genuine contract with her for the purchase of her property, when in fact he was employing the contract as a sham and a device to defraud her, and obtained her signature to the contract of sale by posing as one who was honestly interested in the purchase of her premises. Commonwealth v. Stone, 4 Met. 43. Commonwealth v. Walker, 108 Mass. 309. Commonwealth v. Morrison, 252 Mass. 116. Bank of Commerce & Trust Co. v. Schooner, 263 Mass. 199, 205-206, and cases cited. See Commonwealth v. Hutchison, 114 Mass. 325; State v. Switzer, 63 Vt. 604.
The Commonwealth did not rely upon the default of the mortgage to sustain a conviction. Neither did it introduce any evidence of misconduct of Mullaney in securing the signature of Mrs. Thompson or in his subsequent acts with reference to her property as evidence of his character but it offered this evidence to prove the intent by which Mullaney was actuated in obtaining her signature. Moreover,
The evidence was sufficient to prove that Mullaney and McHugh entered into a conspiracy after September 1, 1937, the date stated in the indictment as the time of its commencement, and that it terminated in January, 1938, when these defendants ceased to be associated together in any further transactions. Attorney General v. Tufts, 239 Mass. 458. Commonwealth v. Farese, 265 Mass. 377. Commonwealth v. Galvin, 310 Mass. 733. Commonwealth v. Mannos, 311 Mass. 94. Commonwealth v. Beal, 314 Mass. 210.
It is to be noted that the judge found Weathers not guilty on this indictment. He could apply the evidence to the indictment and could properly find that a conspiracy existed between McHugh and Mullaney up to January, 1938, when that particular conspiracy terminated. Commonwealth v. Edds, 14 Gray, 406. Commonwealth v. Bloomberg, 302 Mass. 349. This result was consistent with his finding of guilty against McHugh and Weathers on another indictment which charged them with a conspiracy between September 1, 1937, and July 1, 1939, but which, upon the evidence, came into existence after McHugh and Mullaney parted. There was no error in the finding, which the judge impliedly made, that the conspiracy between McHugh and Mullaney had terminated and was succeeded by a new one between McHugh and Weathers.
Although neither McHugh nor Weathers was represented by counsel at the argument nor were any briefs submitted by them, we have examined the questions of law raised by them on the record. They are in the main substantially similar to those raised by Mullaney and, for reasons already stated, we perceive no error.
The judgments entered against Mullaney, McHugh and Weathers must be affirmed. The exceptions of Mullaney and McHugh must be overruled. The findings of guilty against Weathers in the cases brought here by report are free from error and judgments are to be entered upon them.
So ordered.