72 Me. 238 | Me. | 1881
The defendant has been indicted, tried, and convicted of fraudulently obtaining possession of a horse, by a purchase on credit, by falsely pretending that he was the owner of valuable and unencumbered real estate. He claims a new trial:
First, for the alleged illegal admission of evidence. The exceptions state that at the trial one John L. Best testified in relation to the note given for the horse, and was asked by the government whether the note had been paid, and was allowed to answer that it had not, notwithstanding the answer was objected to by the defendant. We think the answer was admissible. It tended to prove that the defendant was insolvent, and made it more probable that his statement, if false,' was fraudulently so. If one’ who is insolvent falsely pretends that he is the owner of property, which in fact he does not own, and thereby obtains credit, the fact that he was insolvent very much strengthens the probability that his statement was not only false but fraudulently so, and made for the very purpose of procuring a credit which he knew he could not otherwise obtain. We think the answer was admissible.
Second, for misdirection. It appears from the charge of the presiding judge, which is made a part of the exceptions, that the defendant’s counsel contended that if the defendant intended to pay the note at its maturity, then no such intent as is provided by the statute existed in his mind, and that he was entitled to an acquittal. The presiding judge stated to the jury that he did not so understand the law; that, as a matter of law, it would make no difference whether at the time he gave the note he intended to pay it at maturity or not. We think the ruling was correct. When one obtains credit by falsely pretending that he is the owner of property which he does not own, the fraud consists, notin his misrepresenting his intention to pay, but in misrepresenting his
Third, for refusals to instruct. The exceptions state that the-defendant’s counsel requested the presiding judge to instruct the jury "that if the mortgages were recorded it was notice to Mr. Best and negatived the charge that he was deceived by any representations, if made, that the real estate was free from incum-brances.” The request was properly refused. The doctrine of' constructive notice does not apply to such cases. The parties-were in Portland. The land was in Saco. The records were in Alfred, many miles from Portland. Under these circumstances Mr. Best had a right to rely upon the defendant’s statement; and' if the statement was wilfully false, and Mr. Best was in fact deceived by it, the falsehood was not deprived of its criminality because Mr. Best, by going to Alfred, and searching the public records, could have ascertained the truth. The doctrine of constructive notice does not apply to such eases, and the request was-properly refused. 126 Mass. 208.
Toiirth. The presiding judge was also requested to instruct the jury "that if they should find that Mr. Best was at the time-indebted to the defendant for a larger sum than the value of the-horse, it was not cheating by false pretenses.” It is not necessary to determine whether a creditor may without criminality resort to falsehood to collect Ms debt, for there is no evidence in this-ease that the defendant’s statements were made for any such purpose. True, Best had been indebted to the defendant, but the-defendant had made a note for the amount, Mr. Best had indorsed-it, and the defendant had obtained the money upon it, and Best had agreed to pay the note when it should become due; and the-defendant does not pretend that the purchase of the horse had any connection whatever with this former indebtedness. On the-contrary, the defendant gave his note for the horse, and it was. with reference to his ability to pay the note when it should become due that the representations respecting his property were made.. The request was properly refused.
Exceptions overruled.
