Commonwealth v. Lee , 149 Mass. 179 ( 1889 )

Devens, J.

1. The motion to quash the indictment was properly overruled. The allegation that the goods were obtained by the false statement, on the part of the defendant, that he was the owner of certain property upon which he gave a mortgage to the seller, one James, thereby inducing him to part with his goods, was a clear and sufficient charge of' obtaining goods by false pretences. If, after this false pretence that the defendant was the owner of the property to be mortgaged, the mortgage was given, even if the goods would not have been delivered to the defendant but for this fact, the false pretence was the direct, and not the remote, means by which the goods were obtained. If the seller had not believed in this pretence, he would have deemed the mortgage worthless, and would not have parted with his property. Commonwealth v. Coe, 115 Mass. 481. In Commonwealth v. Lincoln, 11 Allen, 233, it was held that one who obtains money by means of false pretences that he owns certain personal property, which he mortgages to the lender as security for the loan, could properly be convicted of obtaining money by false pretences. The fact that in the case at bar the goods were to be obtained from time to time, and not all at once, can make no distinction between the cases, as the false pretence was a continuing one, and applicable to each delivery.

2. The ruling requested, that the evidence did not support the charge of false pretences as laid in the indictment, should not have been given. In distinct terms, the witness James testified that he parted with the goods on the strength of the statement made by the defendant, and also on the “ statements and the mortgage,” which, in substance, was saying that he relied on the mortgage because of the statements of the defendant which preceded or accompanied it. These statements the jury have found to be false pretences. If James parted with his property solely on the strength of the security of the note and mortgage, that is, independently of these statements, they were instructed to acquit the defendant. For similar reasons, the fifth instruction requested should not have been given. While the defendant was not to be convicted by reason of the covenants in the mortgage as to the ownership of the property, if he in fact made the false statements relied upon to induce the seller to part with his property on the security of the mortgage, he would not be the less liable because they were subsequently reduced to writing therein.

3. The instruction, that the indictment could not be sustained if James, the seller, had the means of knowing that the property was not that of the defendant, should not have been given. He was entitled to rely on the statements of the defendant, and was not further put upon his inquiry as to a motive which was within the knowledge of the defendant, and as to which he himself knew nothing. If he knew that the defendant was not the owner, the instruction as given was that the statement could not be deemed a false pretence. Nor is any such case presented as that which exists where parties alike know whether an affirmation is true or false, being equally cognizant of, or personally connected with, the facts to which it relates. Commonwealth v. Norton, 11 Allen, 266.

4. The fourth instruction requested by the defendant was given. The addition that, if the defendant, “at the time such representations were made, obtained any of the property charged in the indictment from said James by reason of the alleged false pretences, the indictment might be sustained,” was correct. It compelled the Commonwealth to show that some definite portion of the property charged in the indictment had been obtained by the alleged false pretences. This was all that was necessary to sustain the indictment. Commonwealth v. Stone, 4 Met. 43. Commonwealth v. Coe, 115 Mass. 481.

Exceptions overruled.