38 Mass. 515

Commonwealth v. Call

Decided March 18, 1839

Massachusetts Supreme Judicial Court · decided 1839-03-18

The defendant was indicted under Revised Stat. c. 126, § 32, for obtaining money on false pretences. The indictment alleges, that the defendant, on the 5th of February, 1838, with intent to cheat and defraud Artemas White and Gilman Sar gent of their money, did unlawfully, knowingly and designedly, falsely pretend and represent to Charles A. Parker, a person who owed a sum to White and Sargent, to wit, the sum of $ 11 -63, that he, the defendant, was an authorized collector and a servant of White and Sargent, that they had sent him to collect and receive the sum of money so due and owed by Parker to them, and that Parker, believing the false pretences so made and being deceived thereby, was induced by reason of them to deliver and did deliver to the defendant the sum of $ 11 -63 due and owing from him, Parker, to White and Sargent, of the proper money and effects of Parker due and owing to White and Sargent, and the defendant did receive and obtain the same by means of the false pretences and representations, and with the intent to cheat and defraud Parker and White and Sargent of the same money and effects ; whereas, in fact, thei defendant was not an authorized collector and a servant of Whitei and Sargent, and White and Sargent had not employed and sent him, and did not then and there employ and send him, to collect and receive for them the sum so due from Parker to them, but had forbidden the defendant to collect and receive any for them and had turned him out of their employment; and so the jurors say, that the defendant, by means of the false pretences, unlawfully, knowingly and designedly did receive and obtain from Parker the sum of $ 11-63, “being the said money due and owing as aforesaid and effects of the proper money and effects of the said Parker, due, owing and payable to said White and Sargent, with intent to defraud them of the same.” The defendant was tried before Shaw C. J. After a verdict against him, he moved in arrest of judgment, 1. because the allegation in the indictment, that the money of Parker was obtained by the defendant with intent to defraud White and Sargent, is repugnant and absurd ; for White and Sargent could not be defrauded by the defendant’s obtaining the property of Parker ; and if the debt due to White and Sargent was can celled by paying the money to the defendant, then it was White and Sargent’s money which was obtained. 2. Because the relative pronoun them, in the conclusion of the indictment, refers with equal uncertainty to two antecedents, namely, to White and Sargent, and to Parker, White and „ J b ’ feargent. 3. Because the facts charged in the indictment do not amount to an indictable offence, within the intent and meaning of the statute. The defendant also moved for a new trial, on several grounds. The general tenor of the evidence was, that in the beginning of January, 1838, the defendant was employed by White and Sargent to collect bills for them. They carried on the business of smiths and farriers, jointly, but in the name of Artemas White. Some bills were delivered out by White, preparatory to collecting them, and among the rest, one against Parker for $ 11 -63. White and Sargent had grounds to withdraw their confidence in the defendant, and in the latter part of January they revoked his authority to collect any bills for them, and took up what bills remained in his hands, but no public notice of such revocation was given, by advertisement or otherwise, to their customers. A fterward, on or about the 5th of February, the defendant called at Parker’s office, and there the amount of the bill was paid to him by R. Cole, a clerk in the office, out of Parker’s money and by Parker’s direction, and thereupon the defendant receipted the bill, signing his own name •‘for Artemas White.” The money never came to the hands of White and Sargent or either of them. 1. The first ground of the motion for a new trial was, because the jury found that the money obtained by the defendant was the money of Parker, whereas the evidence was that it was the money of White and Sargent, and the jury were so instructed ; wherefore the verdict was against evidence. On this point the jury were instructed, that if the money was paid out of Parker’s funds, by his direction, to one not authorized by White and Sargent to receive it, it was Parker’s money, and the evidence was such as to warrant the jury in finding the averment proved. 2. Because the judge permitted hearsay evidence to be given at the trial, namely, the testimony of Gilman Sargent. This testimony was as to facts stated by the witness’s son, Rufus Sargent, in presence of the defendant, in reference to their joint acts and intentions, and assented to by the defendant, There was evidence showing that after the authority of White and Sargent to the defendant had been revoked, Rufus Sargent had been employed to collect their bills ; that at his request the defendant collected the bill in question ; and that at some time after Rufus Sargent was thus employed, a fraudulent agreement was entered into between him and the defendant, to collect the bills and divide the money and go off to New York. After secreting themselves for some time, they were' found and brought together in presence of White and the elder Sargent, and the declarations objected to under this head were the statements made by Rufus Sargent to his father and to White, in presence of the defendant, and assented to by him, as to their acts and intentions in relation to collecting and dividing the money due to White and Sargent, including the sum due from Parker. The testimony was deemed competent, as being the admission of the defendant. 3. Because the jury found that the defendant collected the money with intent to cheat and defraud White and Sargent, against evidence ; the evidence being, that the money was collected in good faith, and immediately paid over to an individual authorized to receive it. The jury were instructed, that if the defendant collected the money at the request of Rufus Sargent, and paid it over to him under a belief and expectation that he would account for it and pay it over to his employers, it would rebut the charge of collecting it with an intent to defraud White and Sargent; but if he collected and paid it to Rufus Sargent under a fraudulent agreement to divide the money, or with the knowledge and belief that it was the intention of Rufus Sargent to squander the money and not account for it and pay it over to his employers, it was evidence of fraudulent intent. And the jury, in finding against the defendant upon this point, found that the money was not collected in good faith and immediately paid over to one authorized to receive it, and the evidence was sufficient to warrant such finding. 4. Because the judge permitted evidence to go to the jury, irrelevant to the issue and tending to prejudice their minds against the defendant, notwithstanding the same was objected to by the defendant’s counsel, viz. the testimony of White and Sargent relative to the loss of a sum of money by the defendant at a house of ill fame, long before the act complained of in the indictment, which testimony was offered to show why the defendant was dismissed from the service of White and Sargent, whereas the fact of the dismission, and not the cause of it, was the point in issue. The testimony alluded to in this part of the defendant’s mo lion, was his declaration to White or Sargent as to the manner in which he stated that he had lost some money of theirs, immediately preceding and connected with their revocation of his authority, and notice to him of that revocation. It was supposed to be material as bearing upon the revocation, the time when it took place, and the notice of it to the defendant. 5. Because the jury found that the defendant made false pretences to, and obtained the money of Parker, as specified in the indictment, whereas the evidence was that all the pretences which were made were made to R. Cole, and the money obtained of Cole. The jury were instructed, that if the defendant made a false representation, that he was authorized by White and Sargent, and this representation was made to Cole, as the agent of Parker, and Parker thereupon directed Cole to pay the bill, this was in legal effect a false representation to Parker, from whom the money was to come, and was sufficient to support the averment of a false representation to Parker.

Decided 1839-03-18

Morton J.

¶1delivered the opinion of the Court. This indictment is founded on the Revised Stat. c. 126, § 32, which *520provides, that if any person shall designedly, by any false pretence, and with intent to defraud, obtain from any other person, any money, goods, wares, merchandise, or other property, he shall be punished, &c.

¶2The indictment clearly brings the offence within the interdiction of the statute, and indeed, uses all the substantive words of the statute itself. It alleges that the defendant, “ designedly," “ with an intent, to defraud," ilby false pretences," (fully setting them forth,) did “ obtain," certain “ money." These, with other necessary allegations, to show who was intended to be, and actually was defrauded, who was intended to be and actually was deceived, and whose was the money obtained, most certainly contain every averment which can be needed “ fully and plainly, substantially and formally,” to describe the offence of which the defendants stand indicted.

¶3The objection to the indictment is, that it alleges an intent to defraud one person, and that false pretences were practised unon another ; that one man was deceived, and his money obtained, and another defrauded. The facts reported clearly show, that these allegations are the only ones, which would meet the proof, and that if this indictment cannot be sustained, a gross fraud may be practised within the words of the statute, and yet not be liable to punishment under it. A combination of facts has here occurred, and may occur again, where a deception has been practised upon one person, and his property obtained, and the loss has fallen upon another, the intention being to defraud him. This is clearly within the mischief intended to be guarded against, and, we have no doubt, within the effective prohibition of the statute.

¶4This indictment would manifestly be bad at common law, because the obtaining property by false pretences is not an offence punishable at common law. But had false tokens, one of the means of deception mentioned in this statute, been used, it is contended that the indictment would still be defective by the rules of the common law, because the allegation, that one was deceived, and another defrauded, is repugnant, absurd, and suicidal. And the case of The King v. Lara, 2 Leach, 739, is relied upon as deciding this point. That case, which certainly seems to be directly in point, was an Old Bailey trial, *521m which, according to the report, the decision appears to have been made by the jury, rather than the bench. At most it was a hasty ruling, during a criminal trial, in a tribunal more remarkable for its promptitude than its deliberation in such trials ; it never received a revision and is not entitled to much respect.

¶5But without stopping to inquire whether such an indictment would be good at common law or not, we are all satisfied that this is a good indictment under the statute.

¶6The grammatical and critical objections, however ingenious and acute they may be, cannot prevail. The age has gone by when bad Latin or even bad English, so it be sufficiently intelligible, can avail against an indictment, declaration, or plea.

¶7The passage objected to may be somewhat obscure, but by a reference to the context is capable of pretty certain interpretation. The pronoun “ them ” must be referred to that antecedent, to which the tenor of the instrument and the principles of law require that it should relate ; whether exactly according to the rules of syntax or not.

¶8The motion in arrest must be overruled.

¶9Many exceptions were taken to the rulings of the Chiel Justice, who presided at the trial ; which, though too plain to admit "of much doubt, will be considered in their order.

¶101. The indictment alleges that the money was obtained from, and was the property of Charles A. Parker. This allegation, involving a mixed question of law and fact, was sustained by the verdict of the jury, according to the instructions of the Court ; and we have no doubt, properly sustained in both respects. Before the payment of the account, the money was undeniably Parker’s. By the payment, although the bill was receipted and legally discharged, yet it did not vest in White and Sargent; because the person receiving it had no authority from them, and could mot act as their agent. The fact that the money was in the possession of and actually paid over by Parker’s agent, does not, in the slightest degree, alter the case. It was done by Parker’s direction, and is, in effect, the same as if paid by his own hand.

¶112. Although the confessions of an accomplice, as such, are *522not competent evidence ; (1 Phil. Evid. 87 ; Kelyng, 18 ; Gilb. Evid. 124 ;) yet when made in the presence of the defendant and assented to by him, there can be no doubt of their admissibility. Indeed had his express .assent been wanting, they would have been admissible. Where declarations against a party are made in his presence and not objected to by him, he being at liberty to do so, his assent is implied, and they are always deemed competent evidence.

¶123. The facts sufficiently support the allegation of an intention to defraud White and Sargent. The defendant, having been their authorized and publicly acknowledged agent for the collection of their bills, and no notice having been given of the revocation of his authority, might lawfully bind them in the receipt of payment and the discharge of such bills as he had in his possession. When, therefore, the defendant presented Parker’s account to him, and he paid it and took a receipt from the defendant, as the agent of White and Sargent, it was a valid discharge and would bar any further claim by them. If they did not receive the money, the loss must fall on them, and they were defrauded of the amount of their account. And every man must be presumed to intend the legal consequences of his acts. If the defendant received the bills of Rufus Sargent, who had the possession of them, with authorit)r to collect them, and obtained the money at bis request, either under a fraudulent agreement to divide it between them or with a knowledge that R. Sargent intended to squander it, or with an intent to convert it to his own use, it was equally a fraud upon White and Sargent, and evinced an intention to defraud them. The jury have so found the facts, and the law was unquestionably correctly laid down.

¶134. Evidence of the declarations of the defendant in relation to his loss of a sum of money, was not admissible in proof of any collateral or independent facts. Proof of any one crime cannot be introduced to support the charge of another. It was not offered for this purpose. But in proving a revocation of his authority and notice of that revocation, and the time and manner in which it took place, the defendant’s declarations became admissible and important, and all the connected parts of the conversation were necessarily introduced *523If, in tais way, evidence of other misconduct of the defendant got into the case, it was merely collateral and incidental and could not be avoided. He ought not to be injuriously affected by it; and there is no complaint that due caution was not used to protect him from any prejudice from it. At the worst, if it be supposed to have had an unfavorable influence, it was his misfortune, which must be submitted to, like any other unavoidable accident.

¶145. A false representation, made to the agent of Parker and by him communicated to Parker upon which he acted was, in /egal contemplation, a false representation made to Parker himself. It was designed to influence him, and whether communicated to him directly, or through the intervention of an agent, can make no difference. It was intended to reach and operate upon his mind. It did reach it and produced the desired effect upon it, viz. the payment of the money. And it is immaterial whether it passed through a direct or circuitous channel. So the payment by the agent of Parker, according to Parker’s orders, out of his money in the hands of the agent, was legally a payment by Parker of his own money, according to the allegation in the indictment.

¶15On the whole, we think that all the exceptions must be over ruled, and judgment rendered on the verdict.