Commonwealth v. Devlin , 141 Mass. 423 ( 1886 )

Holmes, J.

The instruction that the government must prove that the alleged false pretences were made designedly, and with an intent to defraud, as well as that they were false, conveyed to the jury, with perfect plainness, that the falsity of the pretences was not enough, unless the defendant also knew they were false.

The main question arises on the fourth instruction. The evidence was that the representations were made about an hour after the sheep had been weighed off and recorded to the defendant in the weigher’s book, in pursuance of an agreement of purchase by the defendant. The only dispute of fact at the trial, material to the instruction, seems to have been whether what had taken place amounted to a delivery. We must take it that there was evidence that a delivery had been made. The strength of the defendant’s case is, that, even if by the terms of the bargain a sale is to be for cash, a delivery before payment prima facie waives the condition of concurrent payment and passes the property; Haskins v. Warren, 115 Mass. 514; and that, if there was anything to prevent this operation of the delivery in the present case, the burden was on the government to prove it, whereas the instruction might have been thought to throw the burden on the defendant.

We think, however, that the instruction, when applied to the evidence, sufficiently guarded the defendant’s rights. In Haskins v. Warren, the delivery took place several days before payment was demanded. The principle of that case does not apply to a delivery intended to be substantially simultaneous with payment, but which happens to precede it by a few minutes. For instance, if, upon a cash sale, goods should be handed across a counter before the money was put down, that would not be a waiver of the condition or a giving of credit. Bussey v. Barnett, 9 M. & W. 312. If the buyer ran off with the goods without paying for them, he would not have even a voidable title ; and if, by a false representation made the moment after putting his hands upon the goods, he induced the seller to take a check instead of cash, he could be convicted for obtaining the goods upon false pretences.

The case at bar is governed by the same principle as the one we have supposed. The delivery of the sheep was a more cumbrous operation than handing goods over a counter; but, even if it was completed before the representations were made, we think that, on all the evidence, fairly construed, ic must be taken to have been made on the understanding that the payment was to be substantially simultaneous. We do not gather that this was fairly open to controversy or controverted. If the price was fixed by weight, as was testified, it could not be fixed exactly until after the weighing off, which is relied on as constituting the delivery. The parties met in about an hour for payment, and reckoned up the price, and then it was that the representations were made. The instruction excepted to evidently was given upon this view of the case, and upon this view, which the jury also have taken, was correct; for, even if the jury found that there was a completed delivery, still its operation was conditional upon immediate payment, and everything was in fieri until, by reason of what we must take to have been false pretences, the seller was induced to accept a check instead of money, and to complete the sale on that changed footing. Up to that moment the title did not pass, and whether the technical doctrine he that the purchaser’s custody of the sheep ad interim did not constitute possession in a legal sense until payment, or that to obtain the title by false pretences was within the statute, even if the defendant had the possession before, we are satisfied that, one way or the other, the facts which must have been found, under the instructions, constituted the statutory offence. It is hardly necessary to add, that, on our view, the false pretences which induced the seller to accept the checks as the price of his sheep also induced him to part with the title to the sheep for the checks.

The foregoing considerations dispose of the main argument addressed to us, so far as it seems to need an answer. To so much of it as concerns the motion to quash, it is enough to say that the indictment sufficiently alleges a sale, that the owner was induced to sell and deliver the property, that the defendant obtained it by means of the false pretences, and that the defendant knew the pretences to be false.

We do not go beyond the argument, nor scrutinize the requests for rulings very carefully, when we are satisfied that the instructions given are correct and sufficient, and the requests are so needlessly voluminous as in the present case.

Exceptions overruled.