Commonwealth v. Blood , 141 Mass. 571 ( 1886 )

Gardner, J.

The motion to quash the indictment was properly overruled.

When the evidence in the case was closed, the government elected to proceed to the jury upon the false pretences numbered one to eight in the indictment, and no other false pretences were considered. The defendant Blood requested the court to rule that the evidence did not support the several false pretences, and that there was a variance between the allegations and proof, which rulings were refused.

An examination of all the evidence reported in the bill of exceptions shows that it tended to prove the charges made in the indictment. It related to each one of the false pretences alleged; and whether it was sufficient to prove them all was a question of fact for the jury to determine.

The defendant Blood asked the court to rule that the evidence did not prove the falsity of the pretences alleged. There was evidence presented tending to show their falsity, and the court submitted the question to the jury with great clearness.

The defendant Blood contends that there was a variance between the allegation and proof, • as to the amount paid in by Evans, as set forth in the eighth pretence of the indictment. The court specially called the attention of the jury to this alleged variance, and instructed them, in substance, that the government must prove the alleged false pretence as charged, and if the proof was that Evans had paid for his share of the business .$2000, instead of $2500, the charge could not be sustained.

The defendant Blood further contends that there was a variance between the indictment and the evidence, with reference to the transaction in which the false pretences were made. The indictment alleges that after Andrews paid the money and notes to Blood, he received in exchange therefor Blood’s “ interest in said business, and in all the property hereinafter described, and to take the place of him, said Blood, in said business.” This transaction, the defendant contends, was a sale of an interest in the alleged business, made by and for the three persons then engaged in the same. He relies, in support of this proposition, upon the receipt and agreement signed by Evans, Waterman, and Andrews, dated November 30, 1881, and delivered to Blood. The government argues that this writing in no wise affected the sale consummated by the payment of the money by Andrews to Blood; that the sale was complete before this writing was executed, and that, before the absolute sale, there was no reference to the writing; that it was not the intention of the parties that such an agreement should be drawn up, or that the sale should be incomplete until such an instrument was executed. The evidence was ample to support the government in its claim. The court submitted this question to the jury, and instructed them that, if they found the facts to be as claimed by the defendant Blood, there would be a variance.

Waterman, called as a witness, was permitted to testify to an interview with the defendant Evans, as to the circumstances of his buying an interest in the business. The defendant Blood objected to this testimony, but the court admitted it, as against the defendant Evans, stating that the transaction could not be evidence against Blood, and afterwards fully instructed the jury as to the bearing and effect of the evidence. Whatever grievance Evans may have had, it is clear that Blood received no injury from the evidence introduced.

Several letters written by the defendant Blood to the defendant Evans were put in evidence by the government, upon the cross-examination of the defendant Evans as a witness, under the objection of Blood. Some of the letters have reference to the transaction with Andrews. The government could show the entire history of the fraud perpetrated on Andrews, from the conception of the scheme by the defendants, to its consummation. This evidence by the letters was competent, as tending to prove the offence charged. If they also disclose the fact that other similar crimes had been committed, or that attempts had been made to commit them, this does not render the letters incompetent. Commonwealth v. Choate, 105 Mass. 451. Commonwealth v. Scott, 123 Mass. 222. They disclose a scheme between the defendants to obtain large sums of money by fraud. It is apparent from the letters that the defendants had combined to carry out the fraudulent scheme. The general scheme was substantially the same, as appears by the evidence in this case, and develops the fact that the frauds disclosed in the letters and the crime charged in this indictment were parts of one fraudulent scheme, committed in pursuance of a common purpose. The correspondence discloses the way and manner in which the scheme was to be carried out, and was in fact carried out. They disclose a general scheme by the defendants to cheat and defraud, and the fraud practised upon Andrews was in pursuance of the general scheme of fraud developed in these letters.

The presiding judge properly refused to rule that there was no evidence of a scheme to defraud. The court instructed the jury that all the evidence as to other transactions, whether from witnesses or from the letters of the defendant Blood, “ are not evidence of the commission of this offence, and they are not directly evidence of the fraudulent purpose of the representations made to Andrews; they are only competent upon the question of fraudulent intent in this way: so far as they tend to show that there was one scheme of fraud, of which this transaction with Andrews formed a part. They are competent to establish the fraudulent character of the scheme. But to establish the fraudulent character of the scheme is not conclusive of the fraudulent character of the transaction with Andrews ; it would still remain to show that the transaction with Andrews was a part of that scheme, and shared its fraudulent purpose. The real issue for you is the fraudulent character of the transaction with Andrews, and not the fraudulent character of any other transaction.”

In Commonwealth v. Jackson, 132 Mass. 16, the evidence of similar pretences made by the defendant in sales to other persons, a short time previously to the sale in question, was held to be improperly admitted for the purpose of showing the intent with which the defendant made that sale. The other sales were independent of the sale charged in the indictment, and formed no part of a single scheme or plan. In the case at bar, the evidence was not admitted for this purpose. It was introduced for another and different purpose. Having been admitted, the court undertook to instruct the jury as to its legitimate effect, and how it should be considered by them. We think the instructions were sufficiently guarded, and that they stated the principles of the law governing the evidence.

The evidence offered by Blood of articles of copartnership entered into between Evans, Waterman, and Blood, on June 29, 1881, for carrying on the business at Winter Street, was properly excluded, as immaterial to the issue; and the evidence as to the lease of said premises was properly excluded, for the same reason.

The defendant Blood offered in evidence the deposition of one Venier, and it was read to the jury, except one interrogatory and answer, which were excluded, and which were, in substance, to the effect that one Tirrell, a lawyer, said to the witness that, if Blood did not pay Andrews or himself $2800, and return a promissory note of Andrews for $250, he and Andrews would not rest till Blood was in prison. This evidence was rightly excluded, for the reason, if for no other, that the bill of exceptions does not show that Tirrell was acting as the agent of Andrews in making the threat.

Exceptions overruled.