45 Mass. 43 | Mass. | 1842
This case comes before the court by exceptions, from the municipal court. The defendant was indicted for obtaining money by false pretences. The means alleged in the indictment, by which the prisoner thus fraudulently obtained money, are, that he being a person of an evil disposition, and devising and intending by unlawful ways and means to obtain money, goods, and merchandize of the honest and good citizens,
The defendant was found guilty, and having filed a bill of exceptions, it was allowed, and the cause has been now argued upon various points.
It appears by the evidence offered at the trial, and set forth in the bill of exceptions, that the prosecutor, Boardman Poor of Charlestown, brought a load of apples to the city for sale, and met the prisoner in the street, who bought a bushel of apples of him, at fifty cents, and passed to him a $ 5 bill of the Franklin Bank, which he took, believing it to be a good current bill of some bank, and gave the prisoner the change in good money.' Nothing was said about the bill. The prisoner offered it as a good bill, and Poor received it as such. The prisoner directed him to carry the apples to a particular house described, which he did, but found that no such person lived there; nor would any person there receive them. He then suspected that the bill was bad, and upon inquiry found that it was the bill of a broken bank, whose bills had ceased to pass and were of no value. He then went to look for the person who passed it to
1. At the trial, the defendant’s counsel requested the court to charge the jury, that it was the duty of the government to prove that the bill was worthless, by evidence that none of the stockholders were solvent, or, if solvent, had paid to the amount of their stock. But the judge ruled that such evidence was not necessary ; to which the prisoner excepted.
On the ground upon which the trial proceeded, we think this exception is untenable. It goes on the assumption, that upon an indictment for obtaining money by false pretences, by passing, as money, a worthless note, or note of little value, it is necessary to prove that the note was not a valid contract. We think this is not a correct view. The gist of the offence is, not that the note did not constitute a valid contract, binding, to some extent, upon some person, but that from the failure of the bank that issued it, and the entire prostration of its credit, its bills had become practically worthless as a medium of exchange, and ceased to be current as bank bills. We think, therefore, that the judge was right in deciding, that upon such a trial it was not necessary to show that the note did not afford any possible legal cause of action against any person liable, but that the charge would be sustained by showing, by the testimony of practical men, that such bills are of little or no market value, and had wholly ceased to be received as current bills, as a conventional substitute for money, upon ordinary sales and payments.
2. The second point was, that evidence of the market value of a failed bank is not sufficient to show that the bill is not worth its face. The judge ruled that the whole evidence was to be weighed by the jury, to determine whether the bill was worth its face, and if it made out a prima facie case, the jury might so find, unless met by the defendant’s evidence.
3. The judge was further requested to charge the jury, that those persons, who take the bills of broken banks, are bound to look out for themselves, and take such bills at their own risk. This exception assumes that both parties know that the note is the note of a broken bank ; whereas the gravamen of the complaint, and the material fact to be proved is, that the party passing it, knowing it to be the bill of a broken bank, passes it, as the bill of a sound bank, to one who does not know it to be the bill of a broken bank.
4. The fourth exception was, that the passing of such a bill and receiving change for it was not a sufficient representation that the bill was a good one. Upon this point the judge ruled that this was a question of fact for the jury, upon all the evidence and the attendant circumstances of the case. This direction, we think, was correct. The modes in which a pretence or representation may be made, so as to induce belief in the mind of another, may be greatly diversified. It was very properly admitted in the argument, that such representation need not be by words. It may result from signs and tokens, from false personation, or from the relation in which a person stands.
5. The fifth exception was to the admission of proof of the possession and passing of other similar bills, as evidence of the scienter.
This is an exception to the general rule of evidence. But it must be considered that it is to prove a fact not proveable by direct evidence ; that is, a guilty knowledge and purpose of mind, which can rarely be proved by admissions or declarations, and can in general be proved only by external acts and conduct. The case is strictly analogous to the rule in relation to proof of scienter on a charge of passing counterfeit bills or coins, wrhich is well established here and in England. 2 Russell on Crimes, (4th Amer. ed.) 384, 697, and notes. Harrison’s case, 2 Lewin’s Crown Cases, 118.
6. Lastly, the defendant’s counsel requested the judge to charge, that as bills had been at times commonly and daily passed, which are of a slightly depreciated value, and it being impossible to draw the line, at any particular per-centage, which shall constitute a fraud, and which shall not, the jury should not be at liberty to consider it a fraud to pass a bill which is of any value. The judge declined giving this instruction, and for reasons which appear to us entirely satisfactory. The rate of percentage, at which a bill may be valued, for special purposes, by brokers or others, has very little concern with the question of fraud. A current bill may be very innocently passed, which is at a considerable discount. Such has been the currency of a
Still, the general question recurs, whether although the evidence, set forth in the bill of exceptions, would be sufficient to support an indictment for obtaining money by false pretences, it is sufficient to support this indictment, as it is framed. The case, to which the evidence applies, is that of passing the worthless bill of a bank which had failed and ceased to pay its bills, and whose bills had ceased to be current, as the bill of a bank, whose bills were received as current in actual sales and payments. But in recurring to the indictment, the court are of opinion that it does not state such a case. The charge in the indictment is, that the defendant represented it to be a good negotiable promissory note, and bank bill and security for the payment of five dollars therein named, but that it was not a good negotiable note, &c.— using exactly the same terms. This description is closely followed through the whole indictment. Taking the words in their usual and ordinary meaning, we think the in dictment describes, not the genuine note of a worthless bank, but a note, not the' genuine note of any bank ; that is, either a counterfeit note of some real bank, or a paper bearing the semIVsnce of a bank note, but purporting to be of some bank having no real existence. It was certainly a negotiable promissory note and bank bill; and the term “good,” rather imports “ genuine,” than as expressive of its being available to ensure payment. And so the word “ security ” rather designates legal obligation and liability, than a practical assurance that the bill will be paid. Taldng this to be the true meaning and just interpretation of these words, then the purport of the averment is,
the municipal court, for further proceedings.
Park, for the defendant.
Austin, (Attorney General,) for the Commonwealth.