Commonwealth v. Walker
108 Mass. 309
Mass.
1871
Check Treatment
Chapman, C. J.

By the Gen. Sts. c. 161, § 54, “ whoever designedly, by a false pretence, or by a privy or false token, and with intent to defraud, obtains from another person any property,” shall be punished, &c. By the latter clause of the section, if the false pretence relates to the buyer’s means or ability to pay, it must be in writing in order to create the offence. But the pretence here alleged is not within that clause. By the St. of 1863, e. 248, § 2, “ whoever, under false color and pretence of carrying on business and dealing in the ordinary course of trade, obtains from any person goods or chattels with intent to defraud, shall be punished,” &c. This is an addition to the former statute. It is contended that the indictment sets forth no conspiracy to make use of such pretence as these statutes contemplate. Bui the definition of a false pretence in Commonwealth v. Drew, 19 Pick. 179, 184, is “ a representation of some fact or circumstance, calculated to mislead, which is not true.” A man’s intention is a matter of fact, and may be proved as such. Fisk v. Chester, 8 Gray, 506. Kelly v. Cunningham, 1 Allen, 473. In many cases, and especially in criminal cases, it is a material fact; and a dealer in dry goods would be greatly influenced by his belief as to the intent of the purchaser in obtaining the goods. If he believed that the intent was to conceal them and defraud him of them, he would be deterred from selling them on credit; but if, on the contrary, he believed that the intent was to take them to the purchaser’s retail store, and sell them to his customers in the ordinary course of retail trade, he might be likely to sell them on credit. A false pretence as to this matter would be not less material than a false pretence that the buyer owns certain property, as in Commonwealth v. Lincoln, 11 Allen, 233. The language of the statutes is very general, and the false pretence set forth in the indictment is within it. It need not be accompanied by any false token or symbol.

The alleged representation was not promissory, and cannot be regarded as a mere promise or assurance for the future, but related to a present fact.

It is objected that it does not appear that the goods were to be obtained by means of the false representations. But the allega*313tian is, that they were to be obtained “ under color and pretence of a purchase ” by Hale upon his credit “ under the false and fraudulent pretence,” &e. -The first of the statutes above cited uses the phrase “ by a false pretence.” The other uses the phrase “ under false color and pretence.” Both of these phrases are substantially equivalent to the words “ by means of a false pretence.” The allegation is sufficient. Commonwealth v. Wallace, 16 Gray, 221.

It is objected that there is no sufficient description of the property to be obtained. But a conspiracy to obtain dry goods generally would be within the statutes; and an allegation which is sufficiently specific to be within the statute must be sufficient.

As the conspiracy was to do an act made criminal by statute, it is not necessary to inquire whether an allegation of a conspiracy to do an act merely unlawful and not criminal would be sufficient.

It is objected that the statement of the false pretence is not sufficient. But the statement is substantially like that which it is suggested in Commonwealth v. Wallace, -cited above, would be sufficient. See also State v. Roberts, 34 Maine, 320; State v. Keach, 40 Verm. 113. No case holds that the words of the false pretence which the parties intend to make should be set forth. The substance of the pretence is stated in this indictment sufficiently for all useful purposes.

The defendant sets up by plea that the court has no jurisdiction of the offence, because Hale has been adjudged a bankrupt, and therefore the courts of the United States have exclusive jurisdiedon of the offence. By the 44th section of the bankrupt act of 1867, if any debtor or bankrupt shall, within three months before the commencement of proceedings in bankruptcy, under the false color and pretence of carrying on business and dealing in the ordinary course of trade, obtain on credit from any person any goods or chattels with intent to defraud, he shall be deemed guilty of a misdemeanor, and upon conviction thereof in any court of the United States shall be punished, &e. It is contended that the liability of Hale to be punished under this act takes away the jurisdiction of the state courts as to Walker. But the fact*

*314necessary to be proved to convict one under this section of the bankrupt law are, first, the obtaining of the goods under color of the false pretence and with the fraudulent intent stated; and, second, the proceeding in bankruptcy within three months after-wards. The difference between that offence and the offence here set forth is obvious. That statute does not reach this offence, which consists in the conspiracy. The criminal jurisdiction of the courts of the United States is limited, being merely such as is expressly given by statute. Commonwealth v. Tenney, 97 Mass. 50, 56. Had it been otherwise, the jurisdiction of the United States courts would have been concurrent with that of the state courts, in a case like this. Fox v. Ohio, 5 How. 410. The plea was properly overruled.

There is no valid ground for sustaining the motion to set aside the verdict on the ground that the execution of the conspirator’s plan was a felony, and merged the lesser offence of the conspiracy. The fact that the defendant has been guilty of a higher offence than that alleged is no defence. This is so even in manslaughter, where it is no defence that the actual crime was murder. Commonwealth v. McPike, 3 Cush. 181.

Exceptions overruled.