Commonwealth v. Davidson , 55 Mass. 33 ( 1848 )

Dewey, J.

The first objection taken is, that the indictment sets forth “ a sale obtained upon a credit; ” whereas the evidence shows, that the defendant gave the vendor a promissory note payable in four months from date. Upon this point, it is contended by the defendant, that the giving of such promissory note of hand is a present payment. In one sense it is so. By the judicial decisions of this court, the giving such promissory note is prima facie evidence of payment. It is only prima facie, however, and may be explained, and its effect as payment controlled, by the circumstances of the case. But in the sense in which a sale upon a credit is set forth in the indictment, the giving of a promissory note payable at a future day is entirely consistent with such allegation. The gist of the allegation is, that the goods were obtained upon a credit given to Davidson and Berry. That the goods and merchandize were thus delivered upon credit is equally true, whether the vendors charged the same in account on a credit of four months, or took the promissory' note of the defendants, payable at a like future day, without any security therefor by an indorser, or otherwise. The sale in either case was upon a credit, and upon credit given to the defendant and Berry. This objection is, therefore, not well founded.

2. It was further insisted at the trial, that as the witness Harding, who testified to the alleged false representations, and to the sale of the property to the defendant by reason of such false representations, further testified that the misrepresentations by the defendant as to his name had no influence in determining the witness to sell on credit to the defendant, “ that particular charge,” to use the language of the bill of exceptions “ should be taken from the jury or laid out of the case for all purposes, except upon the question of intent to defraud and cheat.” If by this request we are to understand nothing more to be asked, than an instruction to the jury, that the misrepresentation as to the name of the defendant was not upon the evidence proved to have been an inducing motive with Harding, to give the credit to the defendant for the payment of the goods, then it was a proper request, which should have been ruled upon, and the law thereon stated, during the progress of the trial; whether in the general charge to the jury, or at an earlier stage, was not material. Whether this was sufficiently noticed in the general instructions to the jury, might require a more particular consideration, if the question of granting a new trial depended upon this exception alone.

3. It was also contended, that inasmuch as one of the allegations in the indictment charged the defendant with representing, that the firm of Berry and company did not owe debts amounting to more than three hundred dollars, whereas the evidence was, that the defendant represented that the firm did not owe more than four hundred dollars, there was such a variance as to be fatal to maintaining the indictment, so far as applied to that charge. Upon this point the general rule may be stated to be, that the pretence proved must correspond with that alleged in the indictment. 2 Stark. Ev. 563. But it is not necessary to prove the allegations of the indictment in every minute particular. The prosecutor must prove the pretence in substance as laid in the indictment. Archb. Cr. Pl. 157. There does not seem to be an entire uniformity in the adjudicated cases upon this point. The rule, as stated in 2 Russell, 1402, is that, upon an indictment for obtaining money by false pretences, such pretences must, at the trial, be proved as laid. The only case cited by Russell is that of Rex v. Plaistow, 1 Campb. 494. where the indictment alleged that the defendant pretended “ that he had paid a stun of money into the Bank of England.” The evidence was, that the defendant said, “ the money had been paid into the Bank of England.” Lord Ellenborough held this to be a fatal variance, saying that an assertion that money had been paid into the bank was very different from an assertion that it had been paid into the bank by a particular- individual.

In Rex v. Parrott, 2 Maule & Selw. 379, 386, lord Ellen-borough seemed to hold, that where a party is charged with obtaining goods by false pretences, “ the indictment should state the precise charge by distinct averments.” On the other hand, in The People v. Herrick, 13 Wend. 87, the false pretence, as stated in the indictment, was, that the defendant declared that he had the sum of three hundred dollars in the hands of one John W. Squier; that Squier was then absent, but would return in three or four days ; and that as soon as he returned, he could obtain from him the said sum of three hundred dollars, and would pay the party to whom he made these pretences the sum of eighty-five dollars; and that by means of such false pretences he obtained the signature of such individual to a note, as an indorser for him for that amount. The evidence was, that the defendant said he had one hundred and fifty dollars in the hands of Squier, and the counsel for the defendant contended that there was a fatal variance. Savage, C. J., in giving the opinion of the court, says, there is no doubt of the general correctness of the proposition that the fact must be proved substantially as alleged. But the court further held, that the indictment having alleged also that the defendant had no money in the hands of Squier, and this being shown by the facts in the case, a conviction might be sustained, although the false pretence was erroneously stated. In the present case, it seems to us, that the effect of the variance must depend upon the nature of the other allegations in the indictment, and the proof introduced to show that such other representations were the inducements that operated upon the mind of Harding, and caused him to sell his goods to the defendant on a credit. If the allegation that the firm did not owe more than three hundred dollars was the material allegation, or, in other words, the substantial false pretence* we should be of opinion, that proof of a representation by the defendant that the firm owed only four hundred dollars, would be a fatal variance. On the other hand, it not being necessary to prove all the false pretences to have been made that are set out in an indictment, but only such as were material in inducing the credit, this indictment may be maintained upon proof of the other facts alleged, if in the opinion of the jury they constituted the pretences that induced the sale and delivery of the property to the defendant. In looking at this indictment, we perceive that it alleges that the defendant represented to Harding that Berry had put into the copartnership the sum of one thousand dollars, which they then had invested in the partnership business, and that the copartnership was worth property of the value of fifteen hundred dollars. The indictment then alleges that Berry never did invest or put one thousand dollars into the capital of the copartnership, and never put in or invested any capital in the business of said copartnership, but was a poor person, and the said copartners were not worth fifteen hundred dollars, but were poor and insolvent persons, and unable to pay their debts.

It was quite competent for the government to submit this case to the jury upon proof of the other allegations, independent of this as to which the variance exists, and if the other allegations were established, and if they were- shown to be false pretences, and that by means of those pretences the credit for the goods was obtained, the jury would be well authorized to find the defendant guilty, although there was no proof that he made the further alleged pretence that the firm did not owe three hundred dollars. The proper course, however, would be, in such case, for the presiding judge to instruct the jury, that the alleged false pretence as to the indebtedness of the copartnership not exceeding three hundred dollars was not proved, and "that a conviction of the defendant could only be proper upon proof of the other false pretences and showing that they induced the sale of the goods on credit

It is supposed by the counsel for the government, that the law upon this point was sufficiently and properly presented under the general instructions given by the presiding judge in the charge to the jury; that it was correctly stated to the jury, that in such cases it is not necessary to prove all the allegations set forth, but if the allegations are substantially proved, and the pretences proved are shown to be accompanied with all the other circumstances required to constitute the offence charged, it would authorize a verdict against the defendant. This instruction was correct, but it leaves the point of variance in the particular matter which is now under consideration unnoticed, and its effect not judicially declared.

4. Another point, of more general bearing and importance, is the question raised upon the trial as to the rule of law, where one party gives notice to the opposite party to produce at the trial his account books, and upon their production under such call the party calling for them inspects the books and introduces them to the jury, so far as to cross examine a witness as to two entries therein, and the books are examined by thee jury in relation to those entries, — whether the books are not thereby put into the case generally, and not merely as to the two entries made the subject of examination by the party calling for the books.

The English rule seems to be, that if the party calling for the books inspects them so far as to become acquainted with their contents, they are thereby made competent evidence, and may be used by both parties. 1 Gr. Ev. § 563. In the case of Calvert v. Flower, 7 C. & P. 386, the rule was applied in the case of an account book, where the party calling for it had taken the book and turned over several pages, it being held, that by so doing he had made the book evidence in the case. It is, however, said by Mr. Greenleaf, in his treatise on evidence, that in the American courts the law is not entirely settled upon this point. In the case of Penobscot Boom Corp. v. Lamson, 4 Shepley, 224, and in that of Randel v. Ches, & Del. Can. Co., 1 Harrington, 233, the decision was in accordance with the English rule.

In New York the English rule was questioned by Spencer, J., in the case of Kenny v. Clarkson, 1 Johns. 385, 395, and by Thompson, J., in the case of Laurence v. Van Horne, 1 Caines, 276, 286.

In Withers v. Gillespy, 7 S. & R. 10, it was held, “ where books are produced on notice and entries are read in evidence by the party calling for them, the party producing them may read other entries necessarily connected with the former entries.” The only conflict in the cases, or real doubt that seems to have arisen in the reported cases, is, whether the mere act of inspecting and perusing the books by the party calling for them makes them evidence.

Merely calling for the books, although in answer to such call they are produced, will not make them evidence. It would not by the English rule, as stated 1 Phill. Ev. 440, where it is said, if one party calls for books in the possession of another, but declines to use them when produced, the mere calling for them will not make them evidence ; but if the party calling for them inspects them, he thereby does make them evidence, although he does not introduce them. The result of the examination of the cases seems to be, 1. That all the authorities agree that mere calling for the books is not enough to make them evidence; 2. That whether calling for the books of the opposite party and inspecting them, and doing nothing more, makes the book evidence, is a mooted point; 3. That the books, when produced upon notice, if inspected by the party calling for them, and actually used as evidence by him, are thereby made evidence for the other party. 3 Phill. Ev. (4th Am. Ed.) 1191.

The present case falls clearly within the last class, and the book of accounts was therefore made competent evidence for both parties. We do not think its admissibility was to be restricted to the two items selected by the party introducing it. But as to every thing bearing upon the issue before the jury, that was duly entered upon the book, it might be used by both parties. All irrelevant matter would of course be properly excluded, and this would embrace all foreign matter entered therein not properly composing any portion of a book of accounts.

The use of the book of accounts as evidence was too much restricted on the trial of the present case, and the exceptions taken to the ruling on this point are sustained.

5. The remaining question is that arising upon the admission of evidence of the individual indebtedness of the defendant, and also of Berry, the partner. The objection taken to the competency of this evidence was, that the false pretence set forth in the indictment was confined to the solvency and pecuniary ability of the firm of Berry and company, and that such solvency and pecuniary ability might well exist as to the firm, although the members of that firm might individually be insolvent as respects their private creditors. This objection seems to us to be Avell taken. The inquiry ought in strictness to be confined to the partnership debts and partnership assets.

New trial ordered.